No, Biden didn’t defy the Supreme Court on student loans
And neither did Trump on TikTok!
A lot of people — myself included, and maybe you too! — have been talking about constitutional crises lately:
In a newsletter last week, I laid out my standard for when I’ll use that label: if the executive branch ever tries to do something, the judicial branch says it can’t, and the executive branch does the thing anyways, openly ignoring the courts and undermining the rule of law.
The piece was passed around a bit (thank you to
and for sharing!) and sparked a healthy discussion in the comments section.I know they say never to venture into an online comments section, but I’ve always been proud that WUTP readers tend to stay pretty civil down there, including when there are disagreements. Even when readers are taking issue with things I’ve written, I generally find the arguments to be fair and well-reasoned.
In this case, there were at least three arguments that different readers brought up — all in a thoughtful and good-faith way — that I think are worth responding to. Each of them brought up examples that basically asked the same question: So, wouldn’t this be a constitutional crisis by your definition?
I happen not to think any of the examples qualify, but I’ve seen them floated in other corners of the internet as well, so I thought it might be helpful to walk through my reasoning in case you’ve seen them mentioned too and were looking for an explanation. Here goes:
#1: Did Biden spark a constitutional crisis by cancelling student loan debt?
Michael A. writes in the comments section:
We have, in fact quite recently, seen a President ignore the Supreme Court’s decision that one of his orders was unconstitutional. Despite President Biden insisting early in his term that he didn’t have the authority to “forgive” federal student loans without a bill passed by Congress, he issued an order doing that very thing — just ahead of the midterm elections. When courts ruled it unconstitutional, he issued a modified, slimmed down version of it.
When that effort was also overturned by Courts, a third version of “student loans without forgiveness” was issued by the Executive branch.
. . . Given this above, which I believe is indisputable, why is a U.S. Presidential Administration acting unconstitutionally a crisis IF Trump does so, but it isn’t a crisis when Biden DID so?
The background here is that President Biden announced in August 2022 that he planned to take executive action to cancel $10,000 in federal student loan debt for most borrowers.
His stated justification for doing so was the Higher Education Relief Opportunities For Students (HEROES) Act of 2002, which allows the Secretary of Education to “waive or modify” provisions of federal student loan law “as the Secretary deems necessary in connection with a war or other military operation or national emergency.”
As I’ve written before, if you read the law, it’s fairly clear that the statute’s intent was to benefit members of the military (the law’s titular “heroes”), but regardless, the Biden administration argued that the text was broad enough to allow a much wider cancellation (with Covid-19 as the relevant “national emergency”).
To make a long story short, the Supreme Court did not agree, ruling 6-3 in June 2023 that the Biden administration’s cancellation went beyond the allowable “waiving and modifying” and instead constituted an “exhaustive rewriting of the statute.”
After the ruling, the Biden administration did not carry forward with the program, but did try to relieve student loan debt in several other ways.
One such effort — aimed at expanding existing loan forgiveness programs for specific groups (such as people who went into public service or people who attended fraudulent schools) — succeeded in cancelling debt for 5 million borrowers.
Two other attempts — one a new income-driven repayment plan and the other a program to offer relief to a targeted group of borrowers — were blocked by the courts.
Why weren’t these efforts a defiance of the Supreme Court’s 2023 ruling?
Because the Supreme Court did not rule in Biden v. Nebraska (the case that struck down the initial, most expansive plan) that the Biden administration could not cancel student loan debt. Rather, it ruled that the Biden administration could not cancel student loan debt in that specific way, under the authority of the HEROES Act. The two plans that also ended up being overturned relied on an entirely different law as justification, the Higher Education Act of 1965.
In essence, the court told the administration it could not do something because a certain law didn’t allow it. The administration didn’t do the thing. Then, the administration tried to achieve a smaller version of the same goal by using a different law, to see if that law would allow it. The courts said it couldn’t do that, either, and so the administration didn’t. Nothing about that is unusual.
There’s one more thing to note here, though. Almost every time the Biden administration canceled student loan debt under the existing programs — which no courts ever stopped and which had nothing to do with the actions struck down by the Supreme Court — the president would send tweets like this:
The Supreme Court tried to block me from relieving student debt. But they didn’t stop me. I’ve relieved student debt for over 5 million Americans. I’m going to keep going.
That tweet has circulated recently because it was shared by Elon Musk, in an attempt to argue that Biden had ignored an order from the court.
Biden may have had a political incentive to make it sound like he was standing up to a conservative-controlled court to deliver student debt relief — and not simply using pre-existing programs, as was the case. To admit that probably would have made his own actions seem less impressive, but it also would have avoided the impression that he was acting in opposition to the court (an impression he seemed to think would be to his political advantage to leave). It’s hardly a surprise that impression has festered as a result.
My ruling: No constitutional crisis, but Biden’s own sloppy comments are partially to blame for giving people that idea.
#2: Did Trump spark a constitutional crisis in his second term by not enforcing the TikTok ban?
David Sandrich writes in the comments:
Gabe, thank you for your thoughtful piece. In general I agree with your conclusion that calling the current state of affairs a constitutional crisis, per se, is premature.
But didn’t the Trump administration already cross your threshold for such a declaration with its executive order that explicitly contravenes a Supreme Court ruling? I.e. the executive order granting Tik Tok a 75-day extension to comply with the law duly passed by congress, upheld through multiple legal challenges and affirmed by appellate courts and the Supreme Court. And on top of that, by ruling the way it did, the Supreme Court officially rejected then President-Elect Trump’s petition to the court to effect a delay on its ruling and thereby respect constitutional rights by preserving executive authority.
This wasn’t a case whereby an executive simply quietly ignores/slow-walks/seeks work-around to an law clearly upheld by the Supreme Court. This was an explicit challenge. What am I missing here?
During his presidency, Biden signed a law to ban the app TikTok in the U.S. if it wasn’t sold in the next 270 days. TikTok sued, alleging that the law violated the First Amendment; the Supreme Court ruled that it was constitutional.
Biden signed the law on April 24, 2024, which meant that it went into effect on January 19, 2025. The next day, President Trump took office and signed an executive order, pausing enforcement of the law for at least 75 days. Does that mean he flouted the Supreme Court’s ruling?
No. For one thing, the court’s ruling was about whether or not the law was constitutional — not about whether or not the executive branch was required to do (or not do) something, meaning no action (or non-action) by the president could really be a violation of it.
Still, you might find it alarming that the president is not enforcing a U.S. law after it was upheld by the Supreme Court. You shouldn’t: presidents do this all the time. We live in a big country! It simply isn’t feasible for the executive branch to prosecute every single law-breaker. Every day, the executive branch prioritizes which laws to enforce and which ones not to, something known as prosecutorial discretion.
As an example, somewhat famously, there are currently upwards of 10 million immigrants who reside in the U.S. illegally. This has been the case for the past 20 years; it’s not as if Presidents Bush, Obama, Trump, and Biden were unaware of the issue. It’s just that it is not logistically possible to detain them all — so they prioritize some undocumented immigrants above others, especially those who have broken other laws. Even Trump’s current administration has said it is doing this, just like his last one did.
Sometimes, presidents actively decline to enforce laws, not because they can’t but because they don’t want to. The Obama administration did this several times, on issues like marijuana and online gambling. The courts are generally OK with this, giving the executive branch broad latitude to decide when to prosecute and when not to.
Does this mean Trump could suddenly not enforce, say, an appropriations law passed by Congress (which details how the government should spend its money)? No. The Supreme Court has ruled in Train v. City of New York that executive discretion does not extend to spending decisions (unless Congress explicitly grants discretion in the law), and Congress further clarified that fact in the Impoundment Control Act of 1974.
As far back as Marbury v. Madison, the Supreme Court has acknowledged that the executive branch has more latitude in areas that fall within its specific domain (like prosecutions), and less in areas that are shared with other branches (like spending). Chief Justice John Marshall wrote:
Is the act of delivering or withholding a commission [the action that Marbury was litigating] to be considered as a mere political act belonging to the Executive department alone, for the performance of which entire confidence is placed by our Constitution in the Supreme Executive, and for any misconduct respecting which the injured individual has no remedy? That there may be such cases is not to be questioned, but that every act of duty to be performed in any of the great departments of government constitutes such a case is not to be admitted.
Of course, there is still some legal risk in carrying out a behavior prohibited by a law the president has said he won’t enforce, since he could change his mind at any moment, and then you’re screwed. That’s why, for example, Apple and Google still hadn’t restored TikTok to their app stores until last night, when they did so after a letter from Attorney General Pam Bondi assured them they face no legal scrutiny.
It’s up to the platforms whether they want to take that risk. But, as I noted in my piece covering the TikTok oral arguments, “How Trump Could End Up Saving TikTok,” even Biden’s own solicitor general Elizabeth Prelogar acknowledged to the justices that this would be within Trump’s power. “I think, as a general matter, of course, the president has enforcement discretion,” she said.
Theoretically speaking, one of TikTok’s competitors could now try to sue the Trump administration, arguing that they must enforce the law. If the Supreme Court were to then order the administration to enforce it (which I don’t think is particularly likely considering the precedent of deferring to the executive on these matters), and the administration refused, then we would be in a constitutional crisis under my definition.
But the court has never ordered the administration to do such a thing; it has merely said that the law is constitutional, without ordering any action from the executive branch for the president to either follow or ignore.
My ruling: No constitutional crisis, but theoretically it could become one if the Supreme Court were to rule that the administration must enforce the law.
#3: Did Trump spark a constitutional crisis in his first term by refusing to restart DACA?
A reader wrote via email:
Something you’ve said in this article is outright incorrect. You mention that Trump followed the Supreme Court’s orders every time [in his first term], but he actually failed to follow them on DACA, and it was a really big deal! Check out the following links. I apologize for the trouble, but I really think you should issue a correction. This story was important at the time, and it's extremely important now.
“DACA,” for those unfamiliar, refers to the Deferred Action for Childhood Arrivals program, an Obama-era effort to shield from deportation those who arrived in the U.S. illegally as children. (This group is sometimes known as “Dreamers.”)
When Trump took office, his administration moved to repeal DACA in 2017. Legal challenges were brought, and the Supreme Court ultimately ruled against the Trump administration in 2020. Importantly, though — like the Biden student loans case — the court did not rule that Trump was unable to repeal DACA, full stop. It merely said that the way the administration had gone about doing so was illegal. (Why? Because it had acted via a rushed administrative process that the court found to be “arbitrary and capricious” under the Administrative Procedures Act, the same statute I wrote about last week.)
“The dispute before the Court is not whether DHS may rescind DACA,” Chief Justice John Roberts wrote in the majority opinion. “All parties agree that it may. The dispute is instead primarily about the procedure the agency followed in doing so.” After all, DACA was a program created purely by the executive branch; surely, as long as it followed the right steps, the executive branch could undo it as well.
After the ruling — again, like the Biden administration in the student loans case — Acting Secretary of Homeland Security Chad Wolf issued a memo formally withdrawing the administration’s first attempt to end DACA and outlining a new plan, which involving rejecting all new DACA requests while deciding whether to rescind the program.
An immigrant group then challenged the new memo, by saying that Wolf was illegally serving as Acting Secretary of Homeland Security. Eventually, shortly after Election Day 2020, a federal judge agreed, which made his suspension of DACA invalid. The Trump administration then responded by reinstating DACA.
By then, it was December 2020. Would the Trump administration have reacted differently if it had more than a month left in office? Potentially. But the administration did ultimately restart DACA after trying twice to rescind and being stopped by the courts both times.
I think this back-and-forth brings up the fundamental advantage the executive branch will always have in these sorts of episodes: it can take months for the courts to strike down something, but only days for the executive branch to respond by implementing a new version of the program, which then can takes months to be litigated again. That potential for an endless game of whack-a-mole is, perhaps, a vulnerability in the system (and one we could see Trump trying to take advantage of again in the weeks ahead).
But the big picture here is that, as long as any time the courts say a specific administrative action is not permissible, the administration listens and does not enact it (even if they go on to try a different tactic), we are not in a constitutional crisis.
My ruling: No constitutional crisis, but who knows how the episode would have unfolded if Trump’s term wasn’t running out.
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The Thursday Night Massacre.
Manhattan’s top federal prosecutor, Danielle Sassoon, and five high-ranking Justice Department officials resigned Thursday after she refused an order to drop corruption charges against New York City Mayor Eric Adams — a stunning escalation in a dayslong standoff over the Trump administration prioritizing political aims over criminal culpability.
Sassoon, a Republican who was interim U.S. attorney for the Southern District of New York, accused the department of acceding to a “quid pro quo” — dropping the case to ensure Adams’ help with Trump’s immigration agenda — and said she was “confident” the Democratic mayor committed the crimes spelled out in his indictment, and even more. Before the showdown, Sassoon said, prosecutors had been preparing to charge Adams with destroying evidence and instructing others to destroy evidence and provide false information to the FBI.
“I remain baffled by the rushed and superficial process by which this decision was reached,” Sassoon wrote Trump’s new attorney general, Pam Bondi, on Wednesday. The Associated Press obtained a copy of the letter.
The acting deputy U.S. attorney general, former Trump personal lawyer Emil Bove, had ordered on Monday that the Adams case be dropped. He told Sassoon, in a letter accepting her resignation that she was “incapable of fairly and impartially” reviewing the circumstances of the case. Bove placed case prosecutors on administrative leave and said they and Sassoon would be subject to internal investigations.
More news to know
AP: Trump signs a plan for reciprocal tariffs on US trading partners, ushering in economic uncertainty
NBC: House GOP panel passes budget blueprint with $4.5 trillion in tax cuts and steep spending reductions
Politico: Senior Republican senator ‘puzzled’ and ‘disturbed’ by Hegseth’s Ukraine remarks
MPR: Sen. Tina Smith won’t seek reelection in 2026, putting Minnesota seat up for grabs
Fox: Judge orders temporary reversal of Trump admin’s freeze on foreign aid
CBS: U.S. deporting African and Asian migrants to Panama in diplomatic breakthrough
The day ahead
All times Eastern.
President Trump will sign executive orders in the Oval Office before leaving for Mar-a-Lago.
The House and Senate are not in session.
The Supreme Court has nothing on its schedule.
Gabe, thanks for the clarification on these points. You have convinced me, for now at least!
Another awesome essay. I got a really good education in civics back when education was still good and civics was still taught, but this essay gets to some fine points (AKA weeds) that a high school class just won't get into. Thanks for continuing my education!