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President Joe Biden would be on shaky legal ground if he were to pursue broad-based student debt cancellation by executive action, President Barack Obama’s former top Education Department lawyer wrote in a legal analysis.
Biden is seriously considering canceling some debt for certain borrowers, even as legal experts have long debated whether the president has the authority to take such a step.
Using executive action to cancel debts for student borrowers without tying relief to their individual needs and using regulatory procedures would put the Biden administration at risk of having its plan overruled in court, according to a legal analysis prepared by Charlie Rose, who served as the top lawyer in the Education Department under Obama from 2009 to 2011.
“If the issue is litigated, the more persuasive analyses tend to support the conclusion that the Executive Branch likely does not have the unilateral authority to engage in mass student debt cancellation,” Rose wrote in a memo for his law firm, Hogan Marren Babbo & Rose, Ltd. He suggested that loan-servicing companies and investors that own securities backed by student loans might be in a position to sue the administration over broad-based debt cancellation.
The analysis, dated May 7, 2021, is labeled “strictly confidential” and hasn’t been previously reported upon. No client is identified as the recipient of the memo, though it contains recommendations for the Biden administration. In an email, Rose confirmed that the memo was prepared for a private client and never intended to be made public.
The administration has yet to decide how it will proceed with its student debt policies. Biden has stressed that any loan forgiveness would be less than the $50,000 per borrower some influential Democrats have sought, and he has signaled to advisers and others that he is more comfortable with debt cancellation in the range of $10,000, The Wall Street Journal has reported.
An expanded version of this report appears on WSJ.com.
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