Student loan cancellation memo draft has existed since April, emails show

Department of Education officials assembled and edited the draft on April 4 and 5.

The content of the memo is redacted, meaning that the administration still has not stated if it believes the executive branch can cancel student loans without approval from Congress.

The Department of Education has released a completely redacted draft of a long-awaited memo, which is believed to state the administration’s position on whether the executive branch can unilaterally cancel student debt.

The memo has been the source of speculation and debate for seven months. On April 1, White House Chief of Staff Ron Klain told Politico that Biden had asked Education Secretary Miguel Cardona to write a memo on whether student cancellation can be done without approval from Congress. Klain said he hoped the memo would be ready in the coming weeks.

As of press time, the memo still has not been made public, though a public records request from Debt Collective and posted by Yahoo has revealed that a draft memo existed since early April. On April 5, senior officials in the Department of Education’s Office of the General Counsel conferred via email about the content and timing of the document. Emma Leheny, Acting General Counsel, wrote to colleagues, “We will be circulating a revised memo internally within leadership today.” That same day, Joanna Darcus, Senor Counsel, compromised on a redacted provision, writing, “Just can’t let ED be perceived as the hold up!”

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The contents of the draft memo are entirely redacted, so the public still cannot see whether the Biden administration believes it has the power to unilaterally cancel student debt. Such redactions are generally allowable under public records law: The law allows agencies to redact documents that are not yet finalized, because such documents are considered part of the “deliberative process.”

As Campus Reform previously reported, a group of progressive lawmakers led by Rep. Ilhan Omar had asked Sec. Cardona to release the memo by no later than Oct. 22. On that day, the memo had not been made public, though a Department of Education spokesperson told Campus Reform that the Department had received the lawmakers’ letter and planned to respond to its authors.

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On Jan. 12, the Trump administration issued a memo, posted by Politico, answering the same question. The Trump team found that the Secretary of Education lacks the legal authority to cancel student debt for multiple reasons. The memo notes that spending power lies with Congress and that the emergency powers of the Education Secretary to pause mandatory student loan payments and interest accrual does not allow him or her to cancel the principal of the loan.

Progressive lawmakers continue to insist that Biden could cancel student loans “with the flick of a pen” and by “existing legal authority.” The content of the memo could tell the nation if the administration agrees.  

Editor's Note: The writer of this article worked at the Department of Education at the time of the creation and publication of the memo stating that loan cancellation cannot be carried out by the executive branch alone. 

Follow the author of this article on Twitter: @AngelaLMorabito