The Brief
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This is the amicus brief filed before the Supreme Court regarding the administrations plan to forgive $400 billion of student debt.
It's a pretty short read (30 pages, and a lot of it is fluff - the "meat" of the argument is about 20 pages).
SUMMARY OF ARGUMENT
The power of the purse is the central and most im-portant constitutional power reserved exclusively to the legislative branch, enabling it to oversee and con-trol virtually every activity of the federal government. So important is congressional control over spending that the Framers made the point in two different provisions of the Constitution—the only “double protected” power in the document. Article I, Section 8, Clause 1 gives Congress (not the President) the power to use tax revenues for “the common Defence and gen-eral Welfare of the United States,” and Article I, Sec-tion 9, Clause 7 provides that “No Money shall be drawn from the Treasury, but in Consequence of Ap-propriations made by Law.” But these safeguards are for naught if the executive branch can spend money contrary to the manifest intentions of Congress based on improvised, out-of-context interpretations of spending statutes.
In recent decades, Presidents of both parties have in-creasingly resorted to loose constructions of congres-sional appropriations laws to justify spending without congressional action—even when Congress has explic-itly rejected the very spending in question. This has gotten to the point that the fundamental principle of the congressional power of the purse is in peril.
This case involves a unilateral decision by the Pres-ident to forgive over $400 billion in student loan debt owed by 43 million borrowers who financed a college education with the benefit of taxpayer-funded loans. This represents one of the largest expenditures in the nation’s history, carried out in the face of clear con-gressional opposition and supported by no accepted principles of statutory interpretation—let alone the “specific[] statement” that is necessary before the ex-ecutive branch can spend Treasury funds. 31 U.S.C. § 1301(d).
That the expenditure here is in the form of waiving payments owed to the Treasury, instead of affirma-tively expending funds, is of no legal significance. Congress has made clear that “modify[ing] outstanding direct loans (or direct loan obligations) or loan guarantees (or loan guarantee commitments) shall constitute new budget authority.” 2 U.S.C. § 661c(d)(1). For that reason, the CBO scored the “cost of debt cancellation [as] the present value of the borrowers’ projected re-payments of student debt before accounting for the cancellation minus the present value of repayments af-ter doing so.” CBO, Costs of Suspending Student Loan Payments and Cancelling Debt 2 (Sept. 26, 2022). The CBO further notes that “the costs of payment suspen-sion and of debt cancellation will be recorded by the Office of Management and Budget in the federal budget as an increase in the deficit during the fiscal year in which the terms of the loans are modified.” CBO, supra , at 2. Forgiving a loan and making a gift or grant are functionally, legally, and economically in-distinguishable—and both come under Congress’s ex-clusive spending power.
This case gives the Court an opportunity to uphold the structural disciplines on executive power. If the Court reaches the merits, 2 it should make clear that spending statutes must be interpreted in accordance with Congress’s instructions. If this Court turns a blind eye, the executive will have virtually unlimited power to spend. That might befit the Stuart King Charles I, but not a President of the United States
