EVANSVILLE  – When President Joe Biden announced his student debt forgiveness plan, it brought both praise and criticism from all political corners. Under the plan, all student borrowers with household incomes of less than $125,000 for single people and $250,000 for married people would be entitled to $10,000 of debt relief. Those who went to college on Pell Grants would receive $20,000 in relief. 

The plan would also cap monthly loan payments at 5% of the borrower’s monthly discretionary income and forgive remaining loan balances after 10 years of payments, provided the remaining balance is $12,000 or less.

Biden also extended the pause on student loan payments first granted during the COVID emergency through the end of the year. Student borrowers would resume payments in 2023.

But very little about the debate centered around the plan’s authority. Biden’s plan did not receive congressional approval, and by all accounts Biden does not intend to seek it. Everything about the student loan forgiveness plan originates from the executive branch based on the so-called HEROES Act, passed after the 9/11 attacks, which Biden asserts grants him the authority to forgive student debt “in connection with a war or other military operation or national emergency.”

That is a stark change from the Democratic position just one year ago. In July 2021, House Speaker Nancy Pelosi argued that Biden did not have the authority to forgive student debt: “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.”

Pelosi was correct then, so why is she so silent now? The United States Constitution delineates authority and responsibility through separation of powers. Fundamental to American law, this constitutional feature dictates three separate, independent branches of national government, each with varied duties.

Although each branch may hold power roughly equal with the other two, the Founders ultimately vested the most power in Congress: Taxing, spending, declaring war, confirming Cabinet members and Supreme Court justices. According to the Founders, because the United States was a republic, the people would govern through elected representatives.

Over time this system broke down. Like a giant centrifuge, the presidency sucked power from the other two branches, often with Congress’s acquiescence in legislation enabling greater presidential regulatory power. Nowadays the United States of America is actually governed as follows: The executive directs, the bureaucracy enacts, the judiciary imposes, and the legislature may or may not do anything at all.

Joe Biden did not create this situation; it arose over generations through presidential administrations of both parties. But Biden perpetuates this with his student loan forgiveness plan. Article 1, section 9, of the Constitution states, “No money shall be drawn from the treasury, but in consequence of appropriations made by law.” Yet, in practice, our elected officials ignore clear constitutional directives.

Unfortunately, Trump-supporting Republicans lack the moral high ground to criticize Biden. When Congress denied Trump’s request to fund his fabled wall along the Mexican border, Trump declared a national emergency and redirected $8 billion in previously allocated funds (mostly for military and defense) toward building the wall – a wall Trump had insisted Mexico would pay for. (Contrary to Trump’s self-proclaimed skills as a negotiator, he secured less for the border wall after the shutdown than Congress had agreed to before the shutdown.)

Trump’s move established a precedent that the executive branch could, regardless of whether an emergency exists, use the National Emergencies Act to spend money however the president chooses and thereby evade long-standing constitutional checks and balances.

Once authoritarianism breaches the dam of constitutional norms, it only grows. Trump’s administration consistently resisted congressional inquiries into wrongful conduct through executive privilege and other means, about both alleged Russian meddling and other administration wrongdoing. Indeed, Trump pursued a near universal denial of congressional requests for information and testimony from his administration.

America’s Founders understood the need for divisions of authority between and among branches of the federal government, no matter how frustrating to those in power. But today’s separation of power no longer maintains balance among the three branches of government originally envisioned by the Founders. Instead, we have two branches, two tribes: (1) the president and his/her supporters in Congress and the judiciary, and (2) a party in opposition to the president, the president’s opponents in Congress, and their allies on the bench. In every way imaginable, presidents of both parties exacerbated this growing problem. We must embrace our constitutional checks and balances designed to protect against limitless executive power and tyranny, even if we happen to agree with the president’s goals. 

Joshua A. Claybourn is an attorney, historian, and editor of “Our American Story: The Search for a Shared National Narrative.”