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The recent WV vs. EPA ruling limits federal agencies ability to exceed the power specifically granted to them in cases where it could be considered an “extraordinary case” of “political and economic significance,” where an agency makes “unheralded” use of its authority. If that's the case, then the agency must be able to point to a “clear statement” from Congress authorizing its action.

Given the initial intent of the HEROES Act, it's hard to see how there would be such a "clear statement" permitting the cancellation of student debt for several million people with no connection to the military, nor in a time of war. It also seems a stretch at this point to consider us in a state of "national emergency" over the covid pandemic.

Could such a lack of specificity prevent the Biden Administration from using the HEROES Act to cancel student debt across such a broad range of people?

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  • A press briefing is not a legally-implementable executive order, and no such order exists. When it does, it would be possible to look at the legal rationale and compare it to statutory language and case law. Until there is a concrete statement of authority, we can only make stuff us. A better way to frame the question is something along the lines of "What is the most bullet-proof order that relies on the HEROES Act"?
    – user6726
    Aug 26 at 15:01
  • I get that, but other announced details have indicated they plan to use the HEROES Act as their source of authority, which seemed like a stretch to me, so I thought I'd ask.
    – mikem
    Aug 26 at 17:45
  • I think the question of standing to assert that argument is logically prior and probably renders the question non-justiciable.
    – ohwilleke
    Aug 27 at 1:37
  • @ohwilleke I'm afraid I don't understand what you mean in your comment. Would you mind elaborating a bit more?
    – mikem
    Aug 27 at 7:08
  • @mikem See law.stackexchange.com/questions/83639/…
    – ohwilleke
    Aug 27 at 16:17

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