The sculpture of U.S. presidents George Washington, Thomas Jefferson, Theodore Roosevelt and Abraham Lincoln towers over the Black Hills at Mount Rushmore, near Keystone, S.D.Scott Olson/Getty Images News via Getty Images
But for President Joe Biden, the extent of the executive branch’s power is also at stake.
In August 2022, Biden announced that the U.S. Department of Education would cancel federal student loan debt for borrowers making less than $125,000 a year. The plan was designed to blunt the continuing financial hardships student loan borrowers suffered during the COVID-19 pandemic.
By executive action, the president determined the secretary of education would cancel $20,000 of debt for borrowers who were Pell Grant recipients and $10,000 for others through the 2003 Higher Education Relief Opportunities for Students Act, or HEROES Act. It empowers the federal government to change student loan programs in response to national emergencies.
President Joe Biden and Secretary of Education Miguel Cardona explain student loan debt forgiveness to reporters in the Roosevelt Room of the White House on Aug. 24, 2022. Demetrius Freeman/The Washington Post via Getty Images
But the state of Nebraska and six others challenged the program in federal court, claiming in part that it’s an overreach that violates the separation of powers. A second lawsuit, this one brought by two students, argued that the secretary of education did not have the authority to establish the plan and asked the federal court to set it aside. Both cases are now before the Supreme Court.
The Biden administration argues that none of the plaintiffs have suffered actual injuries and are not the proper parties to sue. But if the Supreme Court disagrees, it will then decide whether the administration followed the correct procedures in adopting the plan and whether executive power covers an expansive debt cancellation plan. The answers will rest on fundamental principles regarding how the Constitution divides power between Congress and the president.
The Conversation asked Derek W. Black, a legal scholar who specializes in constitutional law and education, to describe executive power and its role in the legal battles over student debt forgiveness.
1. What authority does the Constitution give the president and his administration?
The Constitution divides power among the three branches of government to ensure none of them has too much. There is the legislative branch, made up of both houses of Congress; the executive branch, composed of the president, vice president, the president’s cabinet and federal agencies, including the secretary of education and the Department of Education; and the judicial branch, which includes federal district courts, courts of appeal and the Supreme Court.
Congress enacts legislation, sets taxes, authorizes public expenditures and establishes substantive policies and rules.
The executive administers and enforces that legislation. In many instances, legislation also authorizes agencies to make certain lower-level policy decisions – either through regulations or executive action.
And the judicial branch determines whether the legislature or the executive breached constitutional or statutory rules in carrying out their duties, including whether they violated anyone’s rights or exceeded the scope of their authority.
2. Can the president determine how government spends money?
Only Congress can appropriate money. Congress passes appropriations bills each year that authorize a specific level of funding for federal projects and agencies. The Department of Education, for instance, receives a specific dollar amount every year to spend on all of its programs.
There’s no freewheeling authority for the executive branch to spend however much money it wants. There’s no provision in the Constitution for that. The president has no power to tax anyone, nor any power to spend money, except for the taxes and spending that Congress has authorized for the president and his various agencies.
With the student loan forgiveness program, the president wants the secretary of education to waive students’ debt and assume responsibility for paying off loans with money that Congress has not yet appropriated.
3. Does the executive branch have the authority to forgive debt that students owe?
Yes, but there are caveats. The president and other members of the executive branch, such as the secretary of education, can forgive debts only when Congress authorizes it. One 2007 law established the Public Service Loan Forgiveness program, which permits the secretary of education to forgive student loans after debt holders work in public service jobs for 10 years. The HEROES Act gives the secretary of education the power to waive or modify student loans during times of emergency.
The current cases do not call into question the public service program. Instead, they challenge the emergency program.
Supporters of the Biden administration’s student debt relief plan stand in the rain in front of the Supreme Court the evening before the court heard arguments about the plan’s constitutionality. Chip Somodevilla/Getty Images News via Getty Images
4. If the executive branch has the authority to forgive student debt, why are the plaintiffs suing?
It is really about the scope and details of the secretary of education’s power, rather than a general question of whether he has power.
The problem is that Congress, in the emergency debt relief law, explicitly gives the secretary power to waive or modify student loans during times of emergency, but it does not specify a cap for the loan amounts the secretary may waive or modify. Nor does Congress set aside a chunk of money necessary to cover all the potential loans the secretary might modify or waive.
The question is whether Congress can give the executive branch what amounts to a blank check to spend on student loan forgiveness.
The administration argues that because Congress didn’t place any limit on the secretary of education’s waiver and adjustment power, the secretary can adjust or cancel as many loans as he wants, and Congress has implicitly agreed to pick up the tab.
The plaintiffs are saying that Congress didn’t intend to give the executive such wide power to adjust and waive student loans, because that would mean practically unlimited spending power for the executive branch.
5. How has the Court’s approach to executive power changed over time?
Executive power was relatively limited until the 1940s. The Supreme Court rejected attempts by Congress to delegate power to the executive branch.
But in an increasingly complex world where good policy depends on expert analysis and evolving facts, Congress is ill-positioned to deal with some issues. Congress could know, for instance, that air pollution is bad, but determining exactly how much particulate in the air is too much – or, for that matter, which particulate is harmful – is beyond Congress’ capabilities.
But the current Supreme Court is concerned about increasingly expansive executive power that upsets the balance of power between Congress and the president. This Supreme Court often requires very specific statutory support when the executive branch takes sweeping action on issues of major significance – what legal scholars call the major questions doctrine. The Supreme Court will not, as Justice Antonin Scalia wrote in 2001, uphold broad executive power based on “vague terms or ancillary” statutory text because Congress “does not … hide elephants in mouseholes.”
This doctrine, of course, lies at the center of the student debt relief cases, with the Biden administration emphasizing that the law specifically grants the secretary of education power to waive and modify loans. The challengers argue that the administration is trying to pull an elephant out of a mouse hole, because Congress never imagined debt relief of this scope or under these circumstances.
I have no current affiliations to disclose. I did, however, volunteer with the Obama-Biden Presidential Transition Team in 2008.
Largely overlooked in the effort to save local news are the nation’s local public radio stations.
Among the reasons for that oversight is that radio operates in a crowded space. Unlike a local daily newspaper, which largely has the print market to itself, local public radio stations face competition from other stations. The widely held perception that public radio caters to the interests of people with higher income and education may also have kept it largely out of the conversation.
But as a scholar who studies media, I believe that local public radio should be part of the conversation about saving local news.
There are reasons to believe that public radio can help fill the local news gap.
Trust in public broadcasting ranks above that of other major U.S. news outlets. Moreover, public radio production costs are relatively low – not as low as that of a digital startup, but far less than that of a newspaper or television station. And local public radio stations operate in every state and reach 98% of American homes, including those in news deserts – places that today no longer have a daily paper.
Finally, local public radio is no longer just radio. It has expanded into digital production and has the potential to expand further.
To assess local public radio’s potential for helping to fill the local information gap, I conducted an in-depth survey of National Public Radio’s 253 member stations.
The central finding of that study: Local public radio has a staffing problem. Stations have considerable potential but aren’t yet in a position to make it happen.
That’s not for lack of interest. Over 90% of the stations I surveyed said they want to play a larger role in meeting their community’s information needs. As one of our respondents said, “The need for the kind of journalism public media can provide grows more evident every day. The desire on the part of our newsrooms is strong.”
To take on a larger role, most stations would need to expand their undersized news staff.
Sixty percent of the local stations have 10 or fewer people on their news staff, and that’s by a generous definition of what constitutes staff. Respondents included in this count broadcast and digital reporters, editors, hosts, producers and others who contribute to local news and public affairs content in its various forms, as well as those who directly provide technical or other support to those staff members. In addition to full-time employees, stations were asked to include part-time employees and any students, interns or freelancers who contribute regularly.
The staffing problem is most acute in communities that have lost their newspaper or where local news gathering has been sharply cut back. Many of these communities were judged by the respondents to have a below-average income level, which limits the local station’s fundraising potential.
Although the staffing problem is more pronounced at stations in communities where local news is in short supply, staff size at nearly every station falls far short of even a moderate-sized daily newspaper.
The Des Moines Register, for example, has a daily circulation of 35,000 copies and a nearly 50-person newsroom – a staff larger than 95% of local public radio stations.
Limitations on potential
One consequence of the staffing problem is that local public radio is actually not all that “local.”
The survey found that in the 13-hour period from 6 a.m. to 7 p.m. on weekdays, only about two hours of locally produced news programming was carried on the average station, some of it in the form of talk shows and some of it as repeat programming. For stations with a news staff of 10 or fewer people, the daily average of locally produced news – even when including repeat programming – is barely more than one hour.
This is only one indicator of the limitations of an undersized newsroom.
Stations with a news staff of 10 or fewer people, for example, were only half as likely as those with more than 20 to have a reporter routinely assigned to cover local government. Some stations are so short of staff that they do not do any original reporting, relying entirely on other outlets, such as the local newspaper, for the stories they air.
A small news staff also means it’s hard to create content for the web, as illustrated by stations’ websites. The stations with 10 or fewer people in their newsroom were only half as likely as those with a staff size of more than 10 to feature local news on their homepage. A local station’s website cannot become the “go-to” place for residents seeking local news on demand if the station fails to provide it.
Who covers local political races if a town’s newspaper has gone under? AP Photo/Ryan J. Foley
The stakes for democracy
With more staff, local public radio stations could help fill the information gap created by the decline of local newspapers. They could afford to assign a reporter full time to cover local government bodies like city councils and school boards.
It would still be a challenge for stations in rural areas that include multiple communities, but that challenge is also one that newspapers in rural areas have always faced and have in the past found ways to manage.
With adequate staff, local stations could also make their programming truly “local,” which would broaden their audience appeal.
Programming created by NPR, PRX and other content providers accounts for much of the appeal of local stations. But it can be a handicap in areas where many potential listeners have values and interests that aren’t met by national programming and where the station offers little in the way of local coverage. As one respondent noted, stations must provide coverage “that reflects the entirety of their communities.”
How much new money would local stations require to expand their coverage? Based on our respondents’ estimates and a targeting of the funding for the communities most in need, roughly $150 million annually would be required.
Given that these communities tend also to be the ones in below-average income areas, the funding would have to come largely from outside sources. That won’t be easy, but it needs to get done. As the Knight Foundation’s Eric Newton noted, local news gives people the information they “need to run their communities and their lives.”
This story has been corrected to state the name of one of two content providers to public radio stations, PRX.
Thomas E. Patterson does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.
The federal government, along with many state and foreign governments and some companies, has banned TikTok on work-provided phones. This type of ban can be effective for protecting data related to government work.
But a full ban of the app is another matter, which raises a number of questions: What data privacy risk does TikTok pose? What could the Chinese government do with data collected by the app? Is its content recommendation algorithm dangerous? And is it even possible to ban an app?
Governments around the world have been banning TikTok on government-issued phones.
Vacuuming up data
As a cybersecurity researcher, I’ve noted that every few years a new mobile app that becomes popular raises issues of security, privacy and data access.
Apps collect data for several reasons. Sometimes the data is used to improve the app for users. However, most apps collect data that the companies use in part to fund their operations. This revenue typically comes from targeting users with ads based on the data they collect. The questions this use of data raises are: Does the app need all this data? What does it do with the data? And how does it protect the data from others?
So what makes TikTok different from the likes of Pokemon-GO, Facebook or even your phone itself? TikTok’s privacy policy, which few people read, is a good place to start. Overall, the company is not particularly transparent about its practices. The document is too long to list here all the data it collects, which should be a warning.
There are a few items of interest in TikTok’s privacy policy besides the information you give them when you create an account – name, age, username, password, language, email, phone number, social media account information and profile image – that are concerning. This information includes location data, data from your clipboard, contact information, website tracking, plus all data you post and messages you send through the app. The company claims that current versions of the app do not collect GPS information from U.S. users. There has been speculation that TikTok is collecting other information, but that is hard to prove.
If the data does end up in the hands of the Chinese government, the question is how could it use the data to its benefit. The government could share it with other companies in China to help them profit, which is no different than U.S. companies sharing marketing data. The Chinese government is known for playing the long game, and data is power, so if it is collecting data, it could take years to learn how it benefits China.
One potential threat is the Chinese government using the data to spy on people, particularly people who have access to valuable information. The Justice Department is investigating TikTok’s parent company, ByteDance, for using the app to monitor U.S. journalists. The Chinese government has an extensive history of hacking U.S. government agencies and corporations, and much of that hacking has been facilitated by social engineering – the practice of using data about people to trick them into revealing more information.
The second issue that the U.S. government has raised is algorithm bias or algorithm manipulation. TikTok and most social media apps have algorithms designed to learn a user’s interests and then try to adjust the content so the user will continue to use the app. TikTok has not shared its algorithm, so it’s not clear how the app chooses a user’s content.
The algorithm could be biased in a way that influences a population to believe certain things. There are numerous allegations that TiKTok’s algorithm is biased and can reinforce negative thoughts among younger users, and be used to affect public opinion. It could be that the algorithm’s manipulative behavior is unintentional, but there is concern that the Chinese government has been using or could use the algorithm to influence people.
TikTok’s algorithm for serving you videos has also become a source of concern.
Can the government ban an app?
If the federal government comes to the conclusion that TikTok should be banned, is it even possible to ban it for all of its 150 million existing users? Any such ban would likely start with blocking the distribution of the app through Apple’s and Google’s app stores. This might keep many users off the platform, but there are other ways to download and install apps for people who are determined to use them.
A more drastic method would be to force Apple and Google to change their phones to prevent TikTok from running. While I’m not a lawyer, I think this effort would fail due to legal challenges, which include First Amendment concerns. The bottom line is that an absolute ban will be tough to enforce.
There are also questions about how effective a ban would be even if it were possible. By some estimates, the Chinese government has already collected personal information on at least 80% of the U.S. population via various means. So a ban might limit the damage going forward to some degree, but the Chinese government has already collected a significant amount of data. The Chinese government also has access – along with anyone else with money – to the large market for personal data, which fuels calls for stronger data privacy rules.
Are you at risk?
So as an average user, should you worry? Again, it is unclear what data ByteDance is collecting and if it can harm an individual. I believe the most significant risks are to people in power, whether it is political power or within a company. Their data and information could be used to gain access to other data or potentially compromise the organizations they are associated with.
The aspect of TikTok I find most concerning is the algorithm that decides what videos users see and how it can affect vulnerable groups, particularly young people. Independent of a ban, families should have conversions about TikTok and other social media platforms and how they can be detrimental to mental health. These conversations should focus on how to determine if the app is leading you down an unhealthy path.
This article has been updated to indicate that TikTok CEO Shou Zi Chew testified before Congress on March 23, 2023.
Doug Jacobson does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.
As a scholar of the legislative branch, I study how its practices and procedures have changed over time. This move is just one in a growing list of norm-breaking events that have colored how the House, during the 118th Congress, conducts business.
U.S. Rep. Marjorie Taylor Greene and other Republican members of Congress react during President Joe Biden’s 2023 State of the Union address. Jim Watson/AFP via Getty Images
118th Congress broke norms from the start
Even before this session of Congress began in January 2023, Republicans members of the House broke a norm by forcing 15 ballots over four days before voting to make McCarthy speaker. The last Speaker vote that required multiple ballots was in 1923 when it took nine.
In the House, Republican and Democratic leadership are traditionally in control of which members they submit for committee assignments. Despite this norm, McCarthy refused to allow Schiff or Swalwell a seat on the Intelligence Committee after Minority Leader Hakeem Jeffries put their names forward.
Accusing Reps. Swalwell and Schiff of misusing the panel during the previous two Congresses, McCarthy said he was denying the two representatives seats on the committee for national security reasons. And he forced a floor vote to oust Omar for her antisemitic comments, even though she apologized.
U.S. Reps. Ilhan Omar (center), Eric Swalwell (left) and Adam Schiff speak at a press conference about congressional committee assignments. Kevin Dietsch via Getty Images News
That was not the first time Pelosi denied the Republican minority leader his choice of committee appointments. During the 117th Congress, when she and House Democratic leadership were populating the Jan. 6 committee to investigate the Capitol insurrection, McCarthy wanted to seat two known Trump loyalists: Reps. Jim Banks of Indiana and Jim Jordan of Ohio. Pelosi rejected them.
When norms are ignored
Traditionally, if a member of Congress committed an offense that did not rise to the level of an ethics investigation, their leadership would decide how to punish them. That was the case in 2019, when then-Minority Leader McCarthy stripped now former Iowa Rep. Steven King of his committee assignments, citing King’s racist comments.
But McCarthy did not punish Greene – Pelosi did.
At the time, Republicans warned Pelosi she was setting a precedent – or new norm – of the majority party in the House determining committee assignments for the minority party.
The norms of governance in the House provide stability and clarity regarding what type of behavior is and is not allowed among members. But when those norms are broken, a series of devolving consequences can follow.
Partisan fights pay
Republican members of Congress attacking Democrats and Democratic members of Congress attacking Republicans has long been a way for elected officials to grab voters’ attention. But the divisive rhetoric and deeply partisan behavior of officeholders over the past few decades has only pushed the two parties farther apart, particularly during the 2000s.
Today, donors reward shocking behavior. Sen. Josh Hawley, of Missouri, for example, raised US$3 million after he voted to block the presidential election results on Jan. 6, 2021.
Greene raised $3.2 million after only three months in office when news broke that she embraced conspiracy theories and previously threatened violence against Democratic politicians. Perhaps seeking similar results, when McCarthy kicked Schiff off the House Intelligence Committee, Schiff went on TikTok to announce his candidacy for the Senate.
Whether this extreme behavior by elected officials is motivated by political one-upmanship or money, or both, Americans are watching, and many don’t approve of the behavior. A February Gallup Poll has approval of Congress hovering around 18%.
Sarah Burns receives funding from the Institute for Humane Studies and she is a non-resident fellow at The Quincy Institute.