[House Report 117-550]
[From the U.S. Government Publishing Office]
117th Congress } { Report
HOUSE OF REPRESENTATIVES
2d Session } { 117-550
======================================================================
RESOLUTION OF INQUIRY REQUESTING THE PRESIDENT AND DIRECTING THE
SECRETARY OF EDUCATION TO TRANSMIT, RESPECTIVELY, CERTAIN DOCUMENTS TO
THE HOUSE OF REPRESENTATIVES RELATING TO THE LEGAL AUTHORITY TO FORGIVE
FEDERAL STUDENT LOAN DEBT
_______
November 10, 2022.--Referred to the House Calendar and ordered to be
printed
_______
Mr. Scott of Virginia, from the Committee on Education and Labor,
submitted the following
ADVERSE REPORT
together with
MINORITY VIEWS
[To accompany H. Res. 1296]
The Committee on Education and Labor, to whom was referred
the resolution (H. Res. 1296) of inquiry requesting the
President and directing the Secretary of Education to transmit,
respectively, certain documents to the House of Representatives
relating to the legal authority to forgive Federal student loan
debt, having considered the same, reports unfavorably thereon
with an amendment and recommends that the resolution as amended
not be agreed to.
CONTENTS
Page
Purpose and Summary.............................................. 2
Committee Action................................................. 2
Committee Views.................................................. 4
Section-by-Section Analysis...................................... 7
Explanation of Amendments........................................ 8
Application of Law to the Legislative Branch..................... 8
Unfunded Mandate Statement....................................... 8
Earmark Statement................................................ 8
Roll Call Votes.................................................. 8
Statement of Performance Goals and Objectives.................... 10
Duplication of Federal Programs.................................. 10
Statement of Oversight Findings and Recommendations of the
Committee...................................................... 10
New Budget Authority and CBO Cost Estimate....................... 10
Changes in Existing Law Made by the Bill, as Reported............ 10
Minority Views................................................... 11
The amendment is as follows:
Strike all after the resolving clause and insert the
following:
That the President, Joseph R. Biden, is requested, and the Secretary of
Education, Miguel Cardona, is directed, to transmit, respectively, to
the House of Representatives, not later than 14 days after the date of
the adoption of this resolution, unredacted copies of all documents,
memoranda, legal opinions, notes from meetings, records (including
telephone and electronic mail records), correspondence (electronic or
otherwise), and other communications, or any portion of any such
communications, to the extent that any such one or more items are
within the possession of the President or the Secretary, respectively,
and refer to the following:
(1) Any request by the President, Executive Office of the
President, or the staff of the Department of Education
(including any political appointees and career employees) to
draft a memo regarding the authority to forgive any Federal
student loan debt.
(2) Meetings held between the Executive Office of the
President and the Department of Education relating to the
forgiveness of Federal student loan debt.
(3) Meetings and conversations, both formal and informal,
held between White House officials and any group or
organization advocating for Federal student loan debt
forgiveness and Department of Education staff, including
political appointees and any group with interests relating to
student loan forgiveness.
(4) Meetings held between the Executive Office of the
President, the Department of Education, the Department of the
Treasury, the Department of Justice, or the Bureau of Consumer
Financial Protection relating to the forgiveness of Federal
student loan debt.
(5) Discussions between Department of Education employees and
officials, including political appointees and career staff,
relating to the drafting of any memoranda related to the
forgiveness of Federal student loan debt.
(6) Any legal opinions sought by the Department of Education
related to the forgiveness of Federal student debt.
PURPOSE AND SUMMARY
The stated purpose of H. Res. 1296 is to direct the
President and the Secretary of Education to transmit certain
documents to the U.S. House of Representatives relating to the
legal authority to forgive Federal student loan debt. While the
Committee supports and promotes Congress' Article I authority
to conduct rigorous oversight, including the requests for
related documents, H. Res. 1296 is a resolution of inquiry that
falls short of this endeavor. Rather, H. Res. 1296 was
introduced in an attempt to upend the Majority's agenda, bog
down the Department in unnecessary production requests, and
dissuade this Administration's effort to provide legal,
sensible solutions to the student loan debt crisis. As such,
the Committee reported H. Res. 1296 unfavorably to the House
with the recommendation that it do not adopt this resolution.
COMMITTEE ACTION
116TH CONGRESS
On March 13, 2019, the Committee held a bipartisan hearing
entitled ``The Cost of College: Student Centered Reforms to
Bring Higher Education Within Reach.'' The Committee heard from
researchers, administrators, and students who described the
causes and consequences of rising college costs and presented
recommendations on reforms to the system that make college more
affordable. The Committee heard testimony from Dr. Douglas
Webber, Professor at Temple University; Dr. Alison Morrison-
Shetlar, Interim Chancellor at Western Carolina University;
Jenae Parker, student at Franklin University; Dr. Elizabeth
Akers, senior fellow at the Manhattan Institute; and James
Kvaal, President of The Institute for College Access and
Success.
On April 3, 2019, the Subcommittee on Higher Education and
Workforce Investment (HEWI Subcommittee) held a bipartisan
hearing entitled ``Strengthening Accountability in Higher
Education to Better Protect Students and Taxpayers.'' The
hearing focused on the role of states, accreditors, and the
federal government to hold colleges accountable and needed
improvements to the accountability system. The Committee heard
from Dr. Nicholas Hillman, Associate Professor at the
University of Wisconsin-Madison; Melissa Emrey-Arras, Director
at the U.S. Government Accountability Office; Noe Ortega,
Commissioner of Postsecondary and Higher Education for the
Pennsylvania Department of Education; and Dr. Barbara E.
Brittingham, President of the New England Commission of Higher
Education.
On May 9, 2019, the HEWI Subcommittee held a bipartisan
hearing entitled ``The Cost of Non-Completion: Improving
Student Outcomes in Higher Education.'' The Committee heard
from witnesses about the reasons for and consequences of non-
completion on students and society, differences in non-
completion across sectors, and successful strategies to improve
completion. The Committee heard from Dr. Susan Dynarski,
Professor at the University of Michigan; Dr. David Rudd,
President of the University of Memphis; Dr. Pam Eddinger,
President of Bunker Hill Community College; and Kyle Ethelbah,
Director of TRIO programs at the University of Utah.
On September 19, 2019, the HEWI Subcommittee held an
oversight hearing entitled, ``Broken Promises: Examining the
Failed Implementation of the Public Service Loan Forgiveness
Program.'' This oversight hearing examined the problematic
implementation of PSLF that resulted in a 99 percent
application rejection rate. The Subcommittee heard testimony
from Kelly Finlaw, a New York City teacher and PSLF applicant;
Dr. Matthew Chingos, Vice President for Education Data and
Policy of the Urban Institute; Yael Shavit, J.D., Assistant
Attorney General of the Office of the Massachusetts Attorney
General; Melissa Emery-Arras, Director of Education, Workforce,
and Income Security at GAO; and Jeff Appel, Director of Policy
Liaison and Implementation of the Department's Office of
Federal Student Aid.
Following the series of higher education hearings, on
October 15, 2019, Chairman Bobby Scott (D-VA-03) introduced
H.R. 4674, The College Affordability Act, a reauthorization of
the Higher Education Act of 1965. On October 29, 2019 the
Committee began consideration of H.R. 4674, in legislative
session, and reported the bill favorably, as amended, to the
House of Representatives by a vote of 28-22 on October 31,
2019.
Other Legislative Action
On January 24, 2019, Rep. Joe Courtney (D-CT-02) introduced
H.R. 748, Middle Class Health Benefits Tax Repeal Act of 2019
in the House. The bill passed the House on July 17, by a vote
of 419-6. H.R. 748, was renamed the CARES Act and served as the
first comprehensive bill to respond to the COVID-10 pandemic.
Section 3513 of the CARES Act, negotiated in a bipartisan
fashion by the Committee and the Senate Committee on Health,
Education, Labor, and Pensions, directed the Secretary of
Education to suspend payments, interest accrual, and
involuntary collection on federal student loans owned by the
Department of Education until September 30, 2020. On March 25,
the Senate passed the CARES Act by a vote of 96-0. On March 27,
the House agreed to the Senate amendments to H.R. 748 by voice
vote, and President Trump signed the CARES Act into law as
Public Law 116-136.
117TH CONGRESS
On March 17, 2021, the HEWI Subcommittee held a hearing
entitled, ``Rising to the Challenge: The Future of Higher
Education Post COVID-19.'' The Subcommittee heard testimony
from Mr. Keith Thornton, Jr., Student, Florida International
University, Miami, FL; Mr. Eloy Ortiz Oakley, Chancellor,
California Community Colleges, Corona Del Mar, CA; Dr. Lindsey
M. Burke, Ph.D., Director, Center for Education Policy & Mark
A. Kolokotrones Fellow in Education, The Heritage Foundation,
Washington, DC; and Mr. Daniel A. Zibel, Vice President & Chief
Counsel, National Student Legal Defense Network, Takoma Park,
MD.
On April 28, 2021, the Committee held a hearing entitled,
``Building Back Better: Investing in Improving Schools,
Creating Jobs, and Strengthening Families and our Economy''.
The Committee heard testimony from Mr. Rasheed Malic, M.P.P.,
Senior Policy Analyst, Early Childhood Policy, Center for
American Progress, Arlington, VA; Mr. Neal McCluskey, Ph.D.,
Director, Center for Educational Freedom, Cato Institute,
Washington, DC; Mr. Mark Mitsui, President, Portland Community
College, Portland, OR; Mr. Bob Lanter, Executive Director,
California Workforce Association, Sacramento, CA; Mr. Brian
Riedl, Senior Fellow in Budget, Tax, and Economics, The
Manhattan Institute, Alexandria, VA; and Ms. Mary W. Filardo,
Founder and Executive Director, 21st Century School Fund,
Washington, DC.
On October 27, 2021, the HEWI Subcommittee held a hearing
entitled, Examining the Policies and Priorities of the Office
of Federal Student Aid''. The Subcommittee heard testimony from
The Honorable Richard Cordray, Chief Operating Officer, U.S.
Department of Education Office of Federal Student Aid.
On May 26, 2022, the Committee held a hearing entitled,
Examining the Policies and Priorities of the U.S. Department of
Education''. The Committee heard testimony from The Honorable
Miguel Cardona, Secretary, U.S. Department of Education.
On July 28th, 2022 H. Res. 1296 was introduced by Ranking
Member Virginia Foxx (R-NC-05). The bill was referred solely to
the Committee on Education and Labor.
On September 15th, 2022, the Committee considered H. Res.
1296 in legislative session and reported it unfavorably, as
amended, to the House of Representatives by a vote of 28-21.
The Committee considered one amendment to H. Res. 1296, an
amendment offered by Chairman Bobby Scott (D-VA-03) that made a
minor technical edit, identifying the Secretary of Education
and President by name. The amendment was adopted by voice vote.
COMMITTEE VIEWS
Oversight and its attempted politicization
The power of Congressional oversight authority at the
Committee level is vested solely with the Chair and the
majority party, per House and Committee rules. The
Congressional Research Service summarizes the oversight power
of the Committee thusly:
Ranking Members and individual Members are not
authorized by house or committee rules to start
official committee investigations or issue subpoenas.
Individual Members may seek the voluntary cooperation
of agency officials or private persons. However, no
judicial precedent has directly recognized a right in
an individual Member, other than a committee chair, to
exercise a committee's oversight authority without the
permission of a majority of the committee or its
chair.\1\
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\1\Todd Garvey & Walkter J. Oleszek, Cong. Rsch. Serv., IF10015,
Congressional Oversight and Investigations (2014) (emphasis added).
The Committee takes its responsibility to conduct oversight
very seriously and views this work as a critical constitutional
function of Congress. To that end, the Committee has held 16
oversight hearings during the 117th Congress\2\--which included
nearly 50 hours of hearings with several Biden-Harris
Administration officials, such as the Secretary of Education,
Miguel Cardona\3\; the Undersecretary of the Department of
Education, James Kvaal\4\; and the Chief Operating Officer of
the Office of Federal Student Aid, Rich Cordray.\5\
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\2\See H. Comm. on Educ. & Lab., Committee Activity, (last visited
Sept. 27, 2022), https://edlabor.house.gov/hearings-and-events
(outlining all hearings in the 117th Congress. Oversight hearings are
generally styled ``Examining the Policies and Priorities of [Overseen
Agency or Department]).
\3\Examining the Policies and Priorities of the U.S. Department of
Education Before the H. Comm. on Educ. & Lab., 117th Cong. (May 26,
2022); Examining the Policies and Priorities of the U.S. Department of
Education Before the H. Comm. on Educ. & Lab., 117th Cong. (June 24,
2021).
\4\Examining the Implementation of COVID-19 Education Funds, Before
the H. Subcomm. on Early Childhood, Elem. & Secondary Educ. & the H.
Subcomm. on Higher Educ. & Workforce Investment, 117th Cong. (November
17, 2021).
\5\Examining the Policies and Priorities of the Office of Federal
Student Aid, Before the H. Subcomm. on Higher Educ. & Workforce
Investment, 117th Cong. (Oct. 27, 2021).
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The Minority claims that the Committee's oversight of the
Biden Administration has not been sufficient and three separate
resolutions of inquiry (ROIs) have been recently introduced and
referred to the Committee. Resolutions of Inquiry (ROIs) are a
tool of the House to obtain information from the Executive
Branch. As an ROI can be introduced by any Member they reflect
one of the few opportunities for the Minority to exert
oversight authority within the confines of the House rules.
Further, as ROIs retain privilege of consideration in the
House if they are not reported out of Committee in a timely
fashion, it has become established practice Committees to
considered them fully to eliminate this privilege. Recognizing
this fact, House Republicans made a concerted effort to hijack
the Committee process by introducing a flood of 23 resolutions
of inquiry at the end of July, timing which would necessitate
the relevant Committees of jurisdiction to take up and report
out these ROIs before September 30, the last scheduled
legislative day before the 2022 midterm elections. This all but
guaranteed that multiple Committees would have to spend
precious time on agenda items chosen by the Minority.
When faced with an ROI from a Democratic minority in 2005,
the Committee's Republican leadership determined that the
resolution was similarly designed to derail the Majority's
agenda,\6\ noting, ``Perhaps most importantly, as a matter of
procedure, H. Res. 467 challenges the Majority's prerogatives
and its right to set the legislative agenda, and for that
reason alone should be rejected.''\7\
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\6\While current Committee leadership takes notice of this
position, it does not necessarily agree with the conclusion reached by
the Committee in the 109th Congress, and merely notes it here for the
record.
\7\H. Rpt. 109-258, 6, 109th Cong., 1st sess. (2005).
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H. Res. 1296, in part, asks the Secretary of Education to
provide,
``unredacted copies of all documents, memoranda, legal
opinions, notes from meetings, records (including
telephone and electronic mail records), correspondence
(electronic or otherwise), and other communications, or
any portion of any such communications, to the extent
that any such one or more items are within the
possession of the President or the Secretary . . .''
that relate to any meeting or request from any combination of
officials in the Executive Office of the President, the
Departments of Education, Treasury, Justice, Bureau of Consumer
Financial Protection, or other outside groups as it relates to
both student loan forgiveness and the legal justification of
such forgiveness. This inquiry is overly broad and obviously
designed to bog the Department down in production of a
gargantuan amount of material. Throughout debate on H. Res.
1296, the Minority suggested that the request was merely for a
legal justification, but the text of the resolution belies this
point. Further, as the Republican majority noted the last time
it disposed of an ROI, a request for ``communications'' is, in
itself problematic:
A resolution of inquiry can only produce ``facts.''
The communications encompassed by the resolution are
not limited to ``facts'' and thus should not be subject
to disclosure in response to the inquiry. At a minimum,
seeking the production of these communications would
chill debate between the agencies and the President on
issues of national importance.\8\
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\8\Id.
The Committee has similar concerns as to whether an ROI
that requests ``opinions'' would be considered privileged under
the Rules of the House.\9\ Notwithstanding that point, ROIs
are, in theory, an oversight tool, and the Committee recognizes
every Member has the right to introduce an ROI. However, it was
disappointing to spend time considering H. Res. 1296, a
resolution so obviously designed to derail serious policy work
and re-task a Department to provide every jot and tittle
related to a legal justification that has been publically
available since the program was announced.
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\9\See Charles W. Johnson, et al., House Practice, Ch. 49, Sec. 4
(2015) (citing the precedent that to retain privileged status an ROI
``must seek facts rather than opinion'').
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The facts regarding the One Time Student Loan Debt Relief Program
H. Res. 1296 was introduced in Congress on July 28, 2022,
nearly a full month before any program to cancel federal
student loan debt was announced by the Biden Administration. It
was not until August 24, 2022 that the President and Department
announced the One Time Student Loan Debt Relief Program.\10\
Under the program, borrowers with incomes below $125,000
($250,000 for married couples) would receive up to $10,000 in
federal student debt relief, with borrowers who qualify and
received a Pell Grant during their education becoming eligible
for up to an additional $10,000 in relief.\11\
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\10\U.S. Dep't of Educ., Press Release, Biden-Harris Administration
Announces Final Student Loan Pause Extension Through December 31 and
Targeted Debt Cancellation to Smooth Transition to Repayment, (Aug. 24,
2022), https://www.ed.gov/news/press-releases/biden-harris-
administration-announces-final-student-loan-pause-extension-through-
december-31-and-targeted-debt-cancellation-smooth-transition-repayment.
\11\Id.
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At the time of the announcement, the Administration
released a legal memo from the Department of Education's Office
of the General Counsel and an opinion from the Department of
Justice's Office of Legal Counsel outlining the legal authority
for the program.\12\ These memos answer the core question
raised by H. Res. 1296--they are the legal justifications for
the program this resolution of inquiry seeks.
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\12\Id.; Memorandum from Lisa Brown, General Counsel, U.S.
Department of Education, to Miguel A. Cardona, Secretary, U.S.
Department of Education (Aug. 23, 2022), https://www2.ed.gov/policy/
gen/leg/foia/secretarys-legal-authority-for-debt-cancellation.pdf; Use
of the HEROES Act of 2003 to Cancel the Principal Amounts of Student
Loans, 46 Op. O.L.C.__(2022), https://www.justice.gov/olc/file/1528451/
download.
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During debate on H. Res. 1296, members of the Committee
cited public statements, including one by Speaker Pelosi, and
previous memos from the DeVos Department of Education that the
President does not have the legal authority to cancel student
loan debt.\13\ There have also been several lawsuits filed
challenging the President's legal authority to cancel student
debt under various theories.\14\ None of these statements or
lawsuits refute the point that the Department provided its
legal justification for the program when it was announced.
Notwithstanding the overly burdensome production requirements
designed to derail Administration efforts to reduce student
loan debt, H. Res. 1296 is in essence moot.
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\13\Memorandum from Reed D. Rubinstein, Principal Deputy Gen.
Couns., Dep't of Educ., to Betsy DeVos, Sec'y of Educ. (Jan. 12, 2021).
\14\See Anna Helhoski, Student Loan Lawsuits; Where Challenges to
Cancellation Stand, Nerdwallet, (Oct. 18, 2022), https://
www.nerdwallet.com/article/loans/student-loans/student-loan-lawsuits.
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It is clear that the legality of the One Time Student Loan
Debt Relief Program will be decided in the courts. It is
equally apparent to the Committee that any claim of
``congressional oversight'' made by a resolution of inquiry
that was introduced before the program it intends to oversee
was even in existence is tenuous at best. As such, the
Committee reported H. Res. 1296 to the House adversely with the
recommendation it do not pass. The Committee takes its
oversight responsibilities seriously, and will continue to
exercise meaningful oversight of policies and programs within
its rule X jurisdiction, including federal student aid at the
U.S. Department of Education. While the aegis of oversight
rests with the Chairman and the majority of the Committee, the
Committee will give any resolution of inquiry introduced by any
member of the House the thoughtful consideration it is due.
SECTION-BY-SECTION ANALYSIS
The text of H. Res. 1296 is one declarative Plain English
sentence directing the Secretary of Education to furnish to the
House of Representatives documents or communications in his
possession broadly related to cost estimates for the IDR and
PSLF waivers issued by the Department in 2021 and 2022.
EXPLANATION OF AMENDMENTS
The amendment in the nature of a substitute is explained in
the descriptive portion of this report.
APPLICATION OF LAW TO THE LEGISLATIVE BRANCH
Pursuant to section 102(b)(3) of the Congressional
Accountability Act of 1995, Pub. L. No. 104-1, H. Res. 1296
does not apply to terms and conditions of employment or to
access to public services or accommodations within the
legislative branch.
UNFUNDED MANDATE STATEMENT
Pursuant to Section 423 of the Congressional Budget and
Impoundment Control Act of 1974, Pub. L. No. 93-344 (as amended
by Section 101(a)(2) of the Unfunded Mandates Reform Act of
1995, Pub. L. No. 104-4), H. Res. 1296 contains no unfunded
mandates.
EARMARK STATEMENT
In accordance with clause 9 of rule XXI of the Rules of the
House of Representatives, H. Res. 1296 does not contain any
congressional earmarks, limited tax benefits, or limited tariff
benefits as described in clauses 9(e), 9(f), and 9(g) of rule
XXI.
ROLL CALL VOTES
In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, the Committee advises that the
following roll call vote occurred during the Committee's
consideration of H.R. 1296:
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
STATEMENT OF PERFORMANCE GOALS AND OBJECTIVES
Pursuant to clause (3)(c) of rule XIII of the Rules of the
House of Representatives, the goal of H. Res. 1296 is to direct
the Secretary to produce records in his possession relating to
cost estimates for IDR and PSLF waivers issued by the
Department.
DUPLICATION OF FEDERAL PROGRAMS
Pursuant to clause 3(c)(5) of rule XIII of the Rules of the
House of Representatives, the Committee states that no
provision of H. Res. 1296 is known to be duplicative of another
federal program, including any program that was included in a
report to Congress pursuant to section 21 of Pub. L. No. 111-
139 or the most recent Catalog of Federal Domestic Assistance.
STATEMENT OF OVERSIGHT FINDINGS AND RECOMMENDATIONS OF THE COMMITTEE
In compliance with clause 3(c)(1) of rule XIII and clause
2(b)(1) of rule X of the Rules of the House of Representatives,
the Committee's oversight findings and recommendations are
reflected in the descriptive portions of this report.
NEW BUDGET AUTHORITY AND CBO COST ESTIMATE
The Committee has not received a cost estimate for the bill
from the Director of the Congressional Budget Office.
CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED
H. Res. 1296 does not change existing law for purposes of
clause 3(e) of rule XIII of the Rules of the House of
Representatives.
MINORITY VIEWS
Introduction
In response to statements made by the Secretary of
Education and other senior officials throughout the past year
and a half that the Biden administration was examining
widespread student loan forgiveness through executive
action,\1\ Ranking Member Virginia Foxx requested information
from the Secretary regarding the President's plans for, and
legal authority to carry out, broad-based loan cancellation by
executive action. Because the responses to those requests were
largely ignored, Ranking Member Foxx introduced H. Res. 1296 on
July 28, 2022. This resolution of inquiry requests the
President and directs the Secretary of Education to transmit,
respectively, certain documents to the House of Representatives
relating to the legal authority to forgive federal student loan
debt. We believe that the urgency for H. Res. 1296 is even more
important today, after the administration's announcement of a
student bailout plan which will have negative consequences for
students and families, for our nation's postsecondary education
system, and for the fiscal future of our nation.
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\1\https://www.cnbc.com/2021/10/26/ed-secretary-cardona-biden-
administration-is-examining-loan-forgiveness.html.
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The need for this resolution of inquiry is twofold. First,
the administration's supposed authority to enact broad-based
loan cancellation for every borrower is dubious and was
completely unknown until the day the Biden administration
announced the federal student loan scheme. On August 24, 2022,
while Americans were trying to understand the varied details of
the announcement,\2\ the Department of Education released a
Notice of Debt Cancellation Legal Memorandum\3\ and the
Department of Justice released a legal opinion\4\ which serve
as this administration's only public documents claiming
possible authority under the Higher Education Relief
Opportunities for Students (HEROS) Act of 2003. The Department
of Education's Legal Memorandum was not published in the
Federal Register until a week later. Second, despite previous
headlines that the administration was ``ready to roll'' on
their loan cancellation plan and other potential program
changes,\5\ the Department of Education did not respond to the
Ranking Member's letter requesting more details on how this
executive action would be implemented.\6\
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\2\https://www.ed.gov/news/press-releases/biden-harris-
administration-announces-final-student-loan-pause-extension-through-
december-31-and-targeted-debt-cancellation-smooth-transition-repayment.
\3\https://www.federalregister.gov/documents/2022/08/30/2022-18731/
notice-of-debt-cancellation-legal-memorandum.
\4\https://www.justice.gov/olc/file/1528451/download.
\5\https://subscriber.politicopro.com/article/2022/06/education-
department-ready-to-roll-on-bidens-student-debt-decision-cardona-says-
00036812?source=email.
\6\https://republicans-edlabor.house.gov/news/
document;single.aspx?DocumentID=408346.
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This resolution of inquiry is about oversight and
transparency. The prior administration provided an analysis
which showed that no Secretary would have this authority.\7\
The current administration rescinded that memo and went forward
with an analysis they refused to make public despite numerous
congressional requests for that memo.
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\7\https://static.politico.com/d6/ce/3edf6a3946afa98eb13c210afd7d/
ogcmemohealoans.pdf?mkt_
tok=NDc1LVBCUS05NzEAAAGGdHVzJZSFr4a_6xNGeCNg_zcF0NhbhJq7ZsWtj3ALb_2KNy
Tubzh_BhlTeW_R0mrC1g8M_kY7EF02OEXdzs_OSb9IKZO2x4L9COzfLxnCmErnV3U.
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The Congressional History of the Higher Education Relief Opportunities
for Students (HEROS) Act
The Biden administration is abusing the HEROS Act of 2003,
a narrow and highly targeted law that has two decades of
history of providing flexibilities and relief for borrowers
during a limited time period. First passed in December 2001 and
later signed into law,\8\ the HEROS Act of 2001 was pushed
through Congress in a bipartisan manner in the months after
September 11, 2001, and after the beginning of Operation
Enduring Freedom where American and British Forces led bombing
strikes against al-Qaida and Taliban forces overseas in
Afghanistan.\9\ The HEROS Act of 2001 provided the Secretary of
Education with specific waiver authority to respond to
conditions in the national emergency declared by the President
on September 14, 2001.
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\8\P.L. 107-122.
\9\https://www.history.navy.mil/browse-by-topic/wars-conflicts-and-
operations/middle-east/
operation-enduring-freedom.html.
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The HEROS Act of 2001 was set to expire near the end of
2003, but overseas military operations continued. On March 20,
2003, an American-led coalition began Operation Iraqi Freedom
preemptive airstrikes\10\ of Saddam Hussein's Presidential
Palace and by March 25, 2003, United States troops were engaged
in a ground war marching toward Baghdad.\11\ On March 25, 2003,
in the midst of the first days of Operation Iraqi Freedom,
Representative John Kline (R-MN) introduced the HEROS Act of
2003 which he later stated during debate on the House floor:
\10\https://www.history.navy.mil/browse-by-topic/wars-conflicts-
and-operations/middle-east/
operation-iraqi-freedom.html.
\11\https://www.nytimes.com/2003/03/26/world/nation-war-overview-
march-25-2003-heavy-losses-among-iraqis-hints-uprising.html.
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provides assurance to our men and women in uniform that
they will not face education-related financial or
administrative difficulties while they defend our
Nation. The HEROS Act achieves this by granting the
Secretary of Education the authority to address the
specific needs of each student whose education is
interrupted when they are called to military
service.\12\
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\12\https://www.congress.gov/108/crec/2003/04/01/CREC-2003-04-01-
pt1-PgH2522-5.pdf.
Specifically, the HEROS Act of 2003 was intended by Congress to
provide United States Reservists, active-duty military,
National Guard and affected individuals residing or employed in
an area that is declared a disaster area in connection with a
national emergency, with flexibility around certain
requirements of financial aid programs during a war, other
military operation or national emergency while they were
serving the country.
This history makes clear that this law does not provide
authority for the Secretary of Education to enact broad
cancellation of federal student loans for a vast population of
borrowers.\13\ In fact, Representative Tim Ryan (D-OH) managed
floor debate for the Democrats on the HEROS Act of 2003 and
delivered an initial address acknowledging the limitedness of
the law: he noted that, while the conflict in the Middle East
could wage on longer, there were limitations in the scope of
the HEROS Act of 2003 which prevented the bill from providing
broader interest.\14\ Former Chairman of the House Education
and the Workforce's Subcommittee on 21st Century
Competitiveness, Representative Buck McKeon (R-CA), addressed
the bounds of the Secretary's authority under the legislation.
He noted the bill gave only the Secretary of Education only
narrow authority that would likely not extend to all possible
instances of financial need, but the legislation was to
maintain the integrity of the Title IV programs:
---------------------------------------------------------------------------
\13\P.L. 108-76.
\14\Ibid.
Another important aspect of the HEROS Act is that it
allows the Secretary of Education to act quickly should
a situation arise that has not been considered. It
allows him to protect the interests of our military
personnel while at the same time ensuring the integrity
of the Federal Student Assistance Programs. . . . While
it will not solve every issue that will arise, the
HEROS Act will alleviate concerns around student
financial assistance and postsecondary education. It
also stands as a clear indication of the commitment of
this Congress to the men and women fighting to protect
the freedoms of this great Nation.\15\
---------------------------------------------------------------------------
\15\Ibid.
Several members also included statements for the
congressional record further describing their intent in
supporting the legislation. Representative Shelia Jackson Lee
(D-TX) provided a statement for the congressional record which
states her support for the HEROS Act's ability to provide
---------------------------------------------------------------------------
relief from technical issues that arise with being a borrower:
This discretion will empower the Secretary to
drastically reduce the likelihood that enlisted men's
and women's educations will be jeopardized by
inadvertent, technical violations or defaults when they
are called to service. It also ensures that members of
our Armed Forces do not forfeit their tuition payments
when they answer the call to service.\16\
---------------------------------------------------------------------------
\16\Ibid.
Representative Rahm Emanuel (D-IL) submitted a statement in
support of the HEROS Act of 2003 and its intent to help those
---------------------------------------------------------------------------
directly engaged in war:
This is timely, essential legislation which ensures
that those brave men and women who make enormous
sacrifices for our nation do not forfeit their right to
an affordable and accessible education. . . . It is
only right that we ensure access to higher education
for those who work to protect the values and privileges
that we enjoy as Americans. . . . It [the HEROS Act of
2003] is a symbol of support for the brave men and
women involved in Operation Iraqi Freedom and for all
of those who selflessly devote their lives to
protecting our nation and our freedom.\17\
---------------------------------------------------------------------------
\17\Ibid.
A review of the debate around the HEROS Act of 2003
confirms that Congress never granted or even contemplated the
possibility that the executive branch was given clear
congressional authorization, or even unclear authorization, to
provide all student loan borrowers any relief under the
authority of the HEROS Act of 2003. Further, the U.S. Supreme
Court has stated that it expects Congress to be clear if it
wishes to assign agency decisions of vast economic and
political significance, and as a result, the Court reads
statutory silence as no authority: ``Congress, does not `hide
elephants in mouseholes.'''\18\
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\18\ Whitman v. American Trucking Associations, 531 US 457 (2001).
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Importance of Resolutions of Inquiry in Response to Unprecedented
Illegal Action
Congress has not authorized the Secretary of Education to
enact mass loan cancellation. Therefore, congressional
oversight and compliance with H. Res. 1296 to allow for the
review of unredacted documents, memoranda, legal opinions,
records from meetings, correspondence and other communications
between the Department of Education, White House, Department of
the Treasury, Department of Justice, and Bureau of Consumer
Financial Protection relating to debt cancellation are of
upmost importance. The American people and Congress deserve
answers and transparency from this administration. Providing
information, including a memorandum--requested repeatedly by
members from both sides of the aisle--is a basic requirement of
the administration, but it is a basic requirement this
administration has failed to meet up to this point.
Unfounded Objections of the Majority
During the markup, Committee Democrats claimed that H. Res.
1296 is moot because the Department of Education and Department
of Justice published legal memoranda describing the supposed
authority that the administration is relying on to quickly
transfer loan debt. However, the existence of these memoranda
does not de facto demonstrate the truth of their arguments.
Committee Republicans do not simply ``dislike'' the memorandum
justifications: we are aware of the legislative history of the
HEROS Act of 2003 and later extensions, and we are confident
that Congress has never given this type of authority. The
memoranda were published so belatedly not because the authority
in question was manifest but rather as a strategy to pull the
wool over Americans' eyes: in an effort to run out the clock,
the Biden administration purposefully released its opinions at
the same time as the plan itself was announced in order to give
less time for public review before discharging loans.
The Majority also claimed that as the cost of college grows
exponentially, Congress must also provide loan relief to
current and future student borrowers. The problem is that
``forgiveness'' is a misnomer: there is no such thing as
``forgiveness'' of student loans. The loan debt will not go
away but will simply be transferred to the taxpayer. The
bailout alone is estimated to cost over $500 billion
dollars,\19\ a huge sum which the Biden administration has
simply moved the loan debt agreed to by millions of student
loan borrowers onto the backs of all American taxpayers. This
mass student loan debt transfer will cost each taxpayer at
least $2,500.\20\
---------------------------------------------------------------------------
\19\https://budgetmodel.wharton.upenn.edu/issues/2022/8/26/biden-
student-loan-forgiveness.
\20\https://www.ntu.org/foundation/detail/cost-of-student-debt-
cancelation-could-average-2000-per-taxpayer.
---------------------------------------------------------------------------
Further, this loan forgiveness plan will do nothing to fix
the corrupt postsecondary education system. The administration
knows that transferring up to $20,000 per borrower will do
nothing to decrease the cost of college. Both the Majority and
Minority members of this Committee know that college costs have
outpaced inflation for decades\21\ and have voiced a commitment
to solving this problem. However, economists estimate that
student loan subsidies--whether mass debt cancellation or the
Lowering Obstacles to Achievement Now (LOAN) Act--actually
increase tuition by 60 cents for every dollar spent on student
loan subsidies.\22\
---------------------------------------------------------------------------
\21\https://research.collegeboard.org/trends/college-pricing.
\22\https://www.newyorkfed.org/medialibrary/media/research/
staff_reports/sr733.pdf.
---------------------------------------------------------------------------
Conclusion
The Biden administration's illegal student loan bailout
will break the student loan program and exacerbate the problems
plaguing our postsecondary education system in the process. The
unprecedented nature of this politically-driven loan
cancellation encourages students to borrow as much as possible
because they expect taxpayers to foot the bill and enables
colleges to continue to increase the cost of overpriced degrees
with low returns for their students. This move by the Biden
administration will have cascading consequences that will
affect students, families, and taxpayers of today and of future
generations. To conduct proper oversight, H. Res. 1296 is
necessary to ensure the critical information is no longer
shielded from Congress. We need to know who the administration
met with, whether those with conflicts participated in the
meetings, and whether there were other legal opinions the
administration considered before acting to subvert the law.
This resolution of inquiry would begin to provide those
answers.
Virginia Foxx,
Ranking Member.
Glenn ``GT'' Thompson.
Tim Walberg.
Glenn Grothman.
Elise M. Stefanik.
Rick W. Allen.
Jim Banks.
James Comer.
Russ Fulcher.
Fred Keller.
Mariannette Miller-Meeks, M.D.
Burgess Owens.
Bob Good.
Lisa C. McClain.
Mary E. Miller.
Scott Fitzgerald.
Madison Cawthorn.
Chris Jacobs.
Brad Finstad.
[all]