Every course in constitutional law begins with a discussion of Marbury v. Madison, an 1803 case that established the power of judicial review. Marbury struck down a federal statute that purported to enlarge the Supreme Court’s original jurisdiction.
Chief Justice John Marshall said that when a statute said one thing and the Constitution said another, the court was bound to follow the Constitution: “It is emphatically the province and duty of the judicial department to say what the law is.”
Marbury holds that when Congress and the court disagree about whether a law is constitutional, the court has the final word. We call this the principle of judicial supremacy. It does not mean that in going about its business, Congress should not endeavor to comply with the Constitution. It can’t, for example, ignore the passage in Article I that says, “No Bill of Attainder … shall be passed.”
The same goes for the president. In executing the laws that Congress has enacted, he and his agencies can issue orders and make rules. When an order or a rule conflicts with the Constitution, the court will follow the Constitution, as it did when President Truman tried to seize the nation’s steel mills during the Korean War.
But once again the principle of judicial supremacy does not mean that the president can do as he likes until the court blows the whistle. On the contrary, Article II, which creates the office of president, requires him to take an oath that he “will to the best of (his) Ability, preserve, protect and defend the Constitution.”
I find myself thinking about this point because President Joe Biden is giving serious consideration to canceling student loan debt in the amount of $10,000 per person. That would cost about $373 billion – as much as the government has spent on welfare in the past 20 years. And the left wing of his party is urging him to consider $50,000 per person.
The Constitution gives the president no such authority. The appropriations clause says the government can’t take any money out of the Treasury unless Congress passes a law. The property clause entrusts Congress (not the president) with “Power to dispose of … Property belonging to the United States.”
As recently as last year, both the president and the speaker of the house acknowledged that the president can’t do this by executive fiat, and that Congress had given him no such authority.
But midterm elections are coming soon, and the president is feeling like the dishonest steward in Luke 16, about to be turned out for wasting his master’s goods. Feeling too old to dig and ashamed to beg, he decided to curry favor with his master’s debtors. So he said to the first, who owed a hundred measures of oil, “Take your bill … and write 50.”
This isn’t the first time the administration has forgiven debts for a group of likely electoral supporters. Last August, the Centers for Disease Control and Prevention ordered a moratorium on rental evictions. President Biden openly conceded that he probably lacked authority to act, as a majority of justices had ruled just weeks before. But he went ahead anyway, The New York Times said, “to quell a rebellion among angry Democrats” who couldn’t persuade Congress to act.
The Constitution gives Congress authority over the government’s assets because it represents all the people who pay the bills. Congress has not forgiven student loans. The president has no authority to curry favor with one faction by writing off the debts they owe to the rest of us.
Garvey is president of The Catholic University of America in Washington. Follow him on Twitter @CatholicPres. Catholic University’s website is www.cua.edu.
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