Biden couldn’t wave away student loan debt. He should do the hard work and fix the system.

Just in time to celebrate our republic’s 247th birthday last week and cherish the blessings of liberty that separation of powers helps secure for us, the U.S. Supreme Court reminded us that a president is not a king.

The case in question, Biden v. Nebraska, concerned President Joe Biden’s attempt to give out money without Congress having appropriated it, claiming a power to discharge millions in student loan debt. The court, in an opinion by Chief Justice John Roberts, found that the president did not have the power to rewrite laws by executive order. Biden’s plan for upper-middle-class welfare would require congressional action, not just a presidential decree.

The court focused on Biden’s claim that the Higher Education Relief Opportunities for Students Act of 2003 allowed him to do basically anything he wanted regarding loans that were in any way affected by any national emergency. This vast power, the White House said, came from a line in that act that allowed the secretary of education to “waive or modify any statutory or regulatory provision” related to the loans “in connection with a war or other military operation or national emergency.”

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The administration said “waive or modify” included completely rewriting the law. That would be a massive delegation of power from Congress, so it is strange that no one noticed it when the bill was passed. In fact, newspapers carried almost nothing about the act in 2003. The Minneapolis Star-Tribune gave it a brief write-up, presumably because the bill’s sponsor, John Kline, represented part of the Twin Cities metro area. The article characterizes the bill as excusing military personnel “from paying their student loans while they are on active duty.” It was a minor piece of legislation designed to help those risking their lives for their country, and it passed nearly unanimously.

Twenty years later, some on the left are pretending it was an enabling act to give the president the power to forgive debts for anyone affected by any emergency. And who has the power to declare emergencies? The president. How convenient! No need for Congress or laws, just an ukase from the Oval Office and millions of young professionals get a little richer.

A few years ago, then-Speaker Nancy Pelosi and Senate Majority Leader Charles Schumer characterized a similar “emergency” effort as “plainly a power grab by a disappointed president, who has gone outside the bounds of the law to try to get what he failed to achieve in the constitutional legislative process.” That was when President Donald Trump used the excuse of an “emergency” to shift funds from what Congress had appropriated to what he wanted to use them for instead: a wall on the Mexican border.

A flurry of lawsuits followed, and appeals to the Supreme Court were pending when Trump lost reelection and Biden reversed his predecessor’s order. Had the 2020 election turned out differently, we might now be talking about that presidential power grab, not this one. Many people would be on different sides of the argument than they are now.

In fairness to Pelosi, though, her initial reaction to calls for Biden to act without Congress on loans was consistent with her opinions on Trump’s wall-building decree: She said he did not have the power to do it. “People think that the president of the United States has the power for debt forgiveness. He does not. He can postpone. He can delay. But he does not have that power. That has to be an act of Congress.”

This is similar to what Biden himself said on the question in February 2021: “I don’t think I have the authority to do it by signing the pen.”

Congress knows how to make loans forgivable — they did it with the Paycheck Protection Program. But when Congress, controlled by Biden’s own party, declined to pass a similar law for student loans, suddenly the president pretended that he had the power and — just before the 2022 midterms — announced that he would, in fact, do it by signing the pen.

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Reliance on the Higher Education Relief Opportunities for Students Act was always a lie. Biden wanted to send money to a group of people who had supported him and his party: young people with college degrees. Congress wouldn’t help, so he did it anyway and dared the courts to stop him. When Trump shifted funds to use them for a border wall, it was called creeping fascism and the death of the republic. How is this any different?

For all the talk of how predatory and unfair the student loan system is, none of what Biden tried to do would fix it. If anything, it would encourage even more borrowing as future students hoped for a second student loan jubilee from the next president hoping to buy their votes.

A better idea? Fix the system. Get the government out of direct lending and let the banks lend to those who want it. Let future loans be dischargeable in bankruptcy, like every other debt. And have the colleges, not the government, guarantee repayment.

All of this will force rigor into the system. Now, no lender considers whether a loan can be repaid because Uncle Sam guarantees it will be. Colleges know this and raise tuition every year. Treat these loans like regular debts and you will see fewer of them — and schools will drop tuition to avoid losing students.

But Biden proposes none of this. (In fact, he voted to make loans harder to discharge when he was a senator.) Instead, we have something familiar to Philadelphians: a failing system that creates a pressure point for a politician to deliver benefits to his friends. The court was right to call this what it is. Now Congress should fix the student loan system so that abuses like this never happen again.