President Biden has declared a substantial amount of student loans forgiven. Critics have questioned the legality of student loan forgiveness after Biden completed the action through executive order. In a legal opinion, the Justice Department said the Biden Administration has the grounds to do it.

Citing the HEROES Act of 2003, the legal opinion read the administration has “sweeping authority” to reduce or eliminate student debt during a national emergency. The law from 2003 was enacted to help military families during the Iraq invasion. The law states the federal government can forgive student debt “in connection with a war or other military operation or national emergency.”

The United States is not at war but is under a state of national emergency because of the COVID-19 pandemic. A national emergency declaration opens the door to more executive power. That national emergency was first enacted in March 2020 at the beginning of the pandemic under President Trump. President Biden extended it a second time in February 2022 and the emergency declaration is not set to expire until February 2023. Presidents have the authority to extend or suspend national emergency declarations. Loan forgiveness is just the latest example of pandemic powers overriding the norm.

House Speaker Nancy Pelosi (D-CA) and the U.S. Department of Education have adjusted stances on the legality of loan forgiveness. Both previously stated no executive privilege would allow student loan forgiveness.

A Department of Education memo, produced in the final days of the Trump administration, concluded that there was no authority to cancel debt on a broad basis. The department has never invoked the law, or any other statute, “for the blanket or mass cancellation, compromise, discharge or forgiveness of student loan principal balances,” former Department of Education lawyer Reed Rubinstein wrote in January 2021.

On Wednesday, the Department of Education published a new memo rebuking the previous one. “We have thus determined that the January 2021 memorandum was substantively incorrect in its conclusions,” the memo stated.

“People think that the President of the United States has the power for debt forgiveness. He does not.  He can postpone. He can delay. But he does not have that power. That has to be an act of Congress,” Pelosi said in July 2021.

Pelosi has since changed her position after being asked about the announcement this week.

“We’re excited about the president, because we didn’t know what — what authority the president had to do this,” Pelosi said. “Now clearly, it seems he has the authority to do this.”

Legal challenges are bound to come. Critics have said forgiving student debt should be settled by Congress.