In one of the most audacious acts of his presidency, President Biden recently issued a fact sheet offering “Student Loan Relief for Borrowers Who Need It Most.” To Biden, that group consists of all individuals who have received student loans but have not yet paid them off, with an exception for loan payments made during the pandemic. The president wants to give this group “breathing room as they prepare to start repaying loans after the economic crisis brought on by the pandemic.” The terms of the proposed loan forgiveness program are clear: the Department of Education will allow for $20,000 in debt relief to Pell Grant recipients—undergraduates with exceptional financial needs—and $10,000 for other students, so long as their individual income is under $125,000 per year (or $250,000 for a married couple). The plan also makes a number of technical adjustments that cut repayment rates for future loans.

The equity of this program has been under fierce attack for forcing the impending financial shortfall on the shoulders of individuals who have already repaid their loans, blue-collar workers who never took out loans, and the general taxpayer who already faces heavy rates. And the burden is no small thing: the Wharton financial model projects that the cancellation program will cost over $500 billion, and could jump to over a trillion dollars depending on future regulations and practices on both existing and new loans.

One might expect that a program of this magnitude would receive extensive congressional discussion followed by legislative approval. One would be disappointed. Here, the president is proceeding by executive order, which he claims is authorized under the HEROES Act of 2003 (an acronym for The Higher Education Relief Opportunities for Students Act). Biden relied on an extensive memo by Christopher Schroeder, the head of the Office of Legal Counsel, an office within the Department of Justice that provides legal advice to the president and all executive branch agencies. The memo does not hold water. The key provision of the HEROES Act on which it relies reads: