Having it both ways: Biden legal arguments for Title 42, student loans conflict with each other

The solicitor general will be arguing that COVID-19 is — depending on the Biden policy being rationalized — an ongoing public health emergency, yet also an abated public health threat. Supreme Court "could hear COVID is so serious that we need to spend hundreds of billions of dollars to forgive student loans while at the same time COVID is so little an issue that we can let all these unscreened, potentially unvaccinated migrants come through," says immigration expert. In one case, COVID-19 is still a major problem, while in the other, the pandemic is now a non-issue, according to the administration.

Published: January 10, 2023 6:06pm

Updated: January 14, 2023 6:19am

The Biden administration may have unintentionally undermined its own legal argument to kill a Trump-era immigration measure.

On Wednesday, the administration renewed the COVID-19 public health emergency, marking the 11th time the government has done so since the pandemic began in early 2020. The renewal came four months after President Biden publicly declared "the pandemic is over."

The renewal, along with the administration's claimed rationale for its massive student loan debt forgiveness order, also appears to contradict the administration's case to end Title 42, the public health authority exercised by the Trump administration that allows border officials to expel migrants without allowing them to apply for asylum in order to limit the spread of COVD-19.

Secretary of Homeland Security Alejandro Mayorkas has warned that as many as 18,000 migrants could cross the border daily if the health policy ends, although the administration has pushed to terminate it, arguing it's no longer necessary to protect public health.

"The government recognizes that the end of the Title 42 orders will likely lead to disruption and a temporary increase in unlawful border crossings," Solicitor General Elizabeth Prelogar wrote in a filing last month to the Supreme Court. "The government in no way seeks to minimize the seriousness of that problem. But the solution to that immigration problem cannot be to extend indefinitely a public-health measure that all now acknowledge has outlived its public-health justification."

Despite the administration's efforts, the Supreme Court last month ordered that the measure remain in place during a legal challenge over its fate being waged between the federal government and several states, including Arizona.

The Supreme Court is set to hear Arizona, et al. v Mayorkas next month. 

The contradictions don't end there, however. Indeed, Prelogar may find herself in a strange position next month. The solicitor general, responsible for arguing the federal government's position before the Supreme Court, will be arguing that COVID-19 is, by turns — depending on the Biden policy being rationalized — an ongoing public health emergency (for purposes of preserving student loan forgiveness) yet also an abated public health threat (for purposes of rescinding Title 42).

Biden announced in August that he will unilaterally cancel $10,000 of federal student loan debt for borrowers making less than $125,000 per year and up to $20,000 for those who received Pell Grants, which support tuition for lower-income students.

Biden described the plan as a way to provide families "breathing room as they prepare to start re-paying loans after the economic crisis brought on by the pandemic."

After Biden made his announcement, the Justice Department released a legal opinion stating the secretary of education has the "authority to reduce or eliminate the obligation to repay the principal balance of federal student loan debt, including on a class-wide basis in response to the COVID-19 pandemic."

The Education Department's Office of the General Counsel also issued a memo making an identical argument.

A coalition of states challenged the plan in what became Nebraska v Biden, claiming it would deprive them of revenue.

In a Supreme Court filing in the case, Prelogar made clear the Justice Department's argument for the student loan forgiveness plan is based on a public health emergency.

"In March 2020, President Trump declared a national emergency in light of the COVID-19 pandemic," the document filed in November states. "That declaration remains in effect, and the government has declared all 50 states, the District of Columbia, and the territories to be disaster areas. COVID-19 has killed more than one million Americans and led to the hospitalization of millions more. COVID-19 continues to kill more than 2,000 Americans a week. The pandemic has also inflicted severe economic harms, including layoffs, spikes in inflation, rising delinquency rates on debt, and projected reductions in lifetime earnings for students who left school during the pandemic."

The Justice Department wrote an almost identical passage in a Supreme Court filing last month for Brown v Department of Education, a case in which two plaintiffs challenged Biden's student loan forgiveness plan on the grounds that the administration didn't comply with federal law requiring notice and comment in implementing certain regulatory programs.

Like Arizona v Mayorkas, both Brown and Nebraska are set to be argued before the Supreme Court next month. The latter are specifically scheduled for Feb. 28, and it's possible Title 42 could be considered then as well — which is where Prelogar comes in.

"All the cases could potentially be heard on the same day, putting the solicitor general in an awkward position," Andrew Arthur, resident fellow at the Center for Immigration Studies, told Just the News. "The court could hear COVID is so serious that we need to spend hundreds of billions of dollars to forgive student loans while at the same time COVID is so little an issue that we can let all these unscreened, potentially unvaccinated migrants come through.

"There's a glaring inconsistency here. It suggests the administration's true concern isn't public health but rather purely political ends."

Arthur echoed this point in an article for the Center for Immigration Studies.

"Nothing really mandates consistency in the administration's arguments when it comes to the effect of the pandemic," he wrote. "But if COVID-19 remains such an existential threat that it, in part, mandates $400 billion in federal spending (the Congressional Budget Office's estimate of the cost of Biden's student-loan forgiveness plan), wouldn't that threat logically also require  [the Department of Homeland Security] to close the border to illegal migrants?"

The Justice Department didn't respond to a request for comment.

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