Atlantic Legal Foundation (ALF) Executive Vice President & General Counsel Larry Ebner, joined by his now-retired, long-time law partner, Herb Fenster, have written a Law360 Expert Analysis focusing on questions that Justices Clarence Thomas and Neil Gorsuch, during a Supreme Court hearing last week, raised about the constitutionality of cancelling almost a half-trillion dollars in student loan debt despite the absence of a congressional appropriation covering that expenditure of government financial assets.

Almost all the 3 ½ hours of colloquy at the February 28 Supreme Court hearings on the student debt relief cases, Biden v. Nebraska, No. 22-506,  and  Department of Education v. Brown, No. 22-535, was devoted to two issues: (1) whether the plaintiff States and/or individuals have standing to challenge the debt cancellation program, and if they do, (2) whether the mass cancellation of more than $ 400 billion in student loan debt is authorized under the Higher Education Relief Opportunities for Students (HEROES) Act.

Only Justices Thomas and Gorsuch asked questions specifically focused on the most fundamental — but barely mentioned — underlying issue in these cases: Does the Biden administration’s half-trillion dollar, pre-midterm election, debt forgiveness giveaway to tens of millions of borrowers violate the Appropriations Clause of the U.S. Constitution?

Consistent with the amicus brief that they filed on behalf of ALF this past January, the Ebner/Fenster op-ed argues that the entire debt cancellation plan is unconstitutional because it violates the Appropriations Clause. The op-ed explains why U.S. Solicitor General Elizabeth Prelogar’s response to Justice Thomas' question about the debt cancellation plan running "headlong" into Congress' appropriations authority was flawed. In contrast, Nebraska Solicitor General James Campbell’s answer to Justice Gorsuch's question about the plan implicating the Appropriations Clause was exactly correct: The Executive Branch cannot usurp Congress’ “power of the purse,” which is a tenet of the separation of powers.

A decision in the student debt cases is expected by the end of June.