Tuesday, the Supreme Court will hear arguments in an extraordinarily significant matter that will give the justices the opportunity once again to stand up for one of the Founders’ foundational doctrines – the separation of powers, a principle necessary to the prevention of a tyrannical government. 

This should be an embarrassing moment for a man who spent as long as President Biden did in the U.S. Senate, a body that reveres the work of the men who created the Constitution. 

Twice already – on his Covid vaccine mandate for large private businesses, and on the eviction moratorium – the Supreme Court has overturned Biden policies because his administration overstepped its Constitutional authority and usurped the powers of the Congress. If the justices maintain their reverence for James Madison’s arguments in Federalist 51, the case to be heard Tuesday will be Biden’s third strike.

At issue is Biden’s student loan debt-relief program, which would forgive up to $20,000 in student loans for up to 43 million borrowers, at a cost of more than $400 billion to federal taxpayers.

The Court will hear arguments in two related cases Tuesday. In both Biden v. Nebraska and Department of Education v. Brown, the question at hand is whether the executive branch has the authority on its own to cancel student loan debt. Despite the Constitution’s clear delineation of powers that only Congress can authorize and appropriate money, Biden used the pretext of the Covid pandemic to unilaterally usurp for himself powers that belong only to Congress.

Congressional authorization and congressional appropriation together are known as the power of the purse, one of the principal checks the legislative branch has over the executive.

If the Court leaves intact Biden’s student loan debt relief plan, the Court will be saying the executive can usurp the power of the purse from Congress.

And if the executive can usurp the power of the purse from the Congress, where will it end? If the Court leaves his student loan debt relief plan intact, what is to keep Biden from bypassing Congress to spend taxpayer dollars to, say, rip out all the gas stoves in private homes and install in their place new electric ovens, or to purchase a new electric vehicle for every automobile owner in the country, or to buy and install solar panels on every home in the country?

Compounding Biden’s problem further, the Court last year ruled in the landmark West Virginia v. EPA that executive branch actions involving questions of major economic and political significance require what the Court called “clear congressional authorization.”

But the Congress never authorized the president to have the federal government assume the student loan debt of these 43 million debtors. Not only did the Congress fail to authorize it, the Congress explicitly chose not to authorize it – not once, but twice during the Covid emergency.

(About which, here’s a simple question: If current law allows the president to exercise this authority, why did liberals in the Congress believe it necessary to pass a new law explicitly giving him the power to do this? And when the first attempt failed, why did they feel a need to try a second time?)

Biden may not be aware Congress did not pass a law giving him the authority to do this. He said in October, in an interview, that he had “just signed a law that’s being challenged by my Republican colleagues” and that his student debt assumption plan had already been “Passed. I got it passed by a vote or two.” 

That, of course, never happened.

The framers of our Constitution quite thoughtfully and deliberately considered the problem of tyranny in government, and concluded that the best way to prevent it was to create a separation of powers. Madison addressed the issue in Federalist 51, famously explaining that “Ambition must be made to counteract ambition.” 

The stakes in this case cannot be overstated. Our founders agonized over the deliberate separation of powers. The Supreme Court now has the opportunity to put the Biden Administration back in its appropriate executive lane. Madison’s arguments in Federalist 51 should still apply, even in the wake of the Covid emergency.

Jenny Beth Martin is Honorary Chairman of Tea Party Patriots Action.

The views and opinions expressed in this commentary are those of the author and do not reflect the official position of the Daily Caller News Foundation.

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