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House Republicans: Up the Ante in the Student Loan Poker Game

William L. Kovacs

July 2023

House Republicans: Up the Ante in the Student Loan Poker Game

Within hours after the U.S. Supreme Court held Biden’s student loan forgiveness program unconstitutional, the Biden administration issued an already prepared Plan B that would serve the same loan forgiveness purpose as his unconstitutional Plan A. The substantive change from Plan A to Plan B was merely relying on a different statute, the Higher Education Act of 1965, rather than the HEROES Act, an emergency act passed during the pandemic. The administration boasts Plan B is the most affordable repayment plan in history. Moreover, in customary high schoolish swagger, Biden states he, Harris, and Cardona will not stop fighting for borrowers.

The timing is proof that Biden knew all along that his loan forgiveness program was unconstitutional. The timing also revealed that Biden is playing a poker game. He is betting that he can buy the votes of the 38.6 million students wanting someone other than themselves to pay off their debt. The House Republicans need to raise the stakes by informing the president that if he persists with his unconstitutional actions, the House will refuse to fund the entire Department of Education.

So far, however, the Republican House members complain on Fox News about Biden’s unconstitutional acts but look like the proverbial deer in the headlights when it comes to action. Indecision gives Biden the advantage since the student debtors, with little understanding of the Constitution, view him as their champion.

Biden’s bravado gives the House Republicans the opportunity to address one of their top election issues, the nation’s failing education system. By calling Biden’s bluff, Republicans will reestablish that only Congress has the power to appropriate money, not the Executive branch. All the House needs do is to refuse to appropriate any money for the Department of Education.

This big bet puts all the chips on the table, debt forgiveness vs. defunding the Department of Education. It will be one of the few times in history that one House of Congress effectively limited the powers of the Executive without having to pass a law. House Republicans have the power to spend or not spend money. The Constitution is clear, “No money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law….” Spending money requires the agreement of both Houses of Congress. If One House refuses to spend money, then money cannot be spent. One House of Congress that says “No” to spending cuts off the money for Executive activities.

A refusal to spend money on the Department of Education allows a majority of one House of Congress to the power shrink the federal government without the difficulty of passing a new law.

Biden has placed the Department of Education at the center of the loan forgiveness conflict. It is Biden’s most prized possession since it is owned and operated by his most significant political supporters, the teachers’ unions. The teachers’ unions donated $43 million to liberal groups in the 2020 election cycle. The possibility of Biden losing his key supporters’ most valuable asset will likely persuade him to drop his unconstitutional nonsense that the Executive has the power to appropriate money.

The Department of Education has a $ 96 billion discretionary budget. It is the third largest of all Executive departments, behind Defense and Health and Human Services. Since its creation, the U.S. has spent trillions of dollars on an educational bureaucracy that has made little or no impact on education. The most recent  National Assessment of Education Progress report card found the biggest drop in test scores in its thirty-year history of the test.

There are many examples of the Department of Education’s 42 years of failure.

  1. The Programme for International Student Assessment (“PISA”) found that among the 35 members of the Organization for Economic Cooperation and Development, the U.S. ranked 30th in math and 18th in science.
  2. The same PISA study found that U.S. millennials in the workforce were tied for last on mathematics and problem-solving tests among the millennials in all the industrial countries tested.
  3. In 2022, the average total SAT score was 1050, the lowest since the test changed format in 2016.

It is very unlikely that Congress could get the votes to abolish this failed agency in the normal budget process. In the present situation, however, Biden’s refusal to obey the Supreme Court’s ruling gives the House the justification it needs to defend the Constitution by permanently limiting Biden’s unconstitutional spending.

By playing poker to win, the Republican House may save the country’s educational system from an education department whose loyalty is to the Teachers Union that ensures a failed educational system.

This article was first published in The Thinking Conservative.

William L. Kovacs has served as senior vice president for the U.S. Chamber of Commerce, chief counsel to a congressional committee, and a partner in law D.C. law firms. His book Reform the Kakistocracy is the winner of the 2021 Independent Press Award for Political/Social Change. He can be contacted at [email protected]





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  • Rule of Law: Federal Government Master, Citizens Servants

Rule of Law: Federal Government Master, Citizens Servants

William L. Kovacs

April 2023

Rule of Law: Federal Government Master, Citizens Servants

The U.S. is in its 118th Congress, and the nation, for the first time in its history, appears weak to the world, divided at home and in unmanageable debt. If the U.S. is to reclaim its standing as an extraordinary nation, every citizen needs to reflect on how the federal government changed the Constitution. The federal government is now the master, and its citizens are the servants. Citizens have exchanged positions with the government by electing Congresses that are unwilling to act as an institutional check on the President. The result, the rule of law is what the President determines is the law.

Moreover, since the founding of the Republic, the Supreme Court has been aggressively complicit in this power grab. It has approved almost every law expanding federal power and protecting the federal government’s abuse of power. The expansion of federal authority has created a legal system that exempts the government from the laws it imposes on citizens.

The rule of law is not a rule or a law.

Citizens believe we live in a rule-of-law society, and we are all equal before the law, including government officials. This concept is described in many ways, such as “the law is the king,” “no man is above the law,” or “we are a government of laws, not men.”

We are taught these concepts, so we believe our government will be fair to us. Moreover, if our government breaks the law, it will receive the same treatment under our legal system as any lawbreaker. A very comforting concept to the naïve. The “rule of law” is not a law of any kind. It is not part of our Constitution, and it has no binding effect on anything. It is merely a clever phrase or, more appropriately, a fable repeated to make the government sound fair and accountable while persuading citizens to obey its every command.

Other than the undefined, vague limits placed on the government by the Constitution or laws passed by Congress, there is scant mention of how our legal system applies to the operation of government when it acts illegally, even tyrannically. The fact is the federal government is not held accountable other than occasionally being voted out of office. It operates for its own benefit. The doctrine of Sovereign Immunity protects those running government from being subjected to citizens seeking recourse against it for unlawful actions or even crimes.

Sovereign immunity is not written into our Constitution.

Sovereign immunity is not written into our Constitution. It is merely a doctrine that was not even recognized by the U.S. Supreme Court until 90 years after the ratification of our Constitution. While the Supreme Court protects federal power by applying the doctrine, it struggles to articulate any constitutional or statutory foundation for its use. The doctrine currently holds that the federal government cannot be sued without its consent. It bars all lawsuits against the federal government or its officers unless Congress enacts a law that clearly expresses its intent to lift the bar.

With absolute immunity from suit, unless otherwise legislated, there are few mechanisms to hold the United States government accountable for its illegal actions. The government waives its civil immunity in matters for small claims on its purse, such as torts, breaches of contract, copyright violations, tax disputes,  and violations of civil rights when government officials are acting under the color of law. By establishing the Court of Federal Claims and the Judgment Fund, the government sets out specific mechanisms for citizens to seek monetary damages or injunctive relief against the government. The Government Accountability Office, however, notes the waiver of sovereign immunity is not enough to assume the victim will be paid. Specifically, there can be no payment without a congressional appropriation.

Since the government is immune from civil and criminal liability, the only control of the federal government is another branch checking the powers of an abusive branch. When the respective branches of our government protect each other, the federal government is the master of the nation and its citizens the servants.

Examples of the federal government’s abuse of law.

The corruption of the U.S. legal system through the assertion of sovereign immunity is clearly illustrated when the Executive issues illegal orders and the president’s party in Congress has sufficient votes to block all checks on Executive power. In this circumstance, the Executive is literally free to violate the law with impunity as Congress protects Executive overreach. President Biden proves this point daily by refusing to enforce immigration laws. Such avoidance fosters open illegal immigration and drug and sex trafficking into the country.

Another example is the President’s son. Based on the information on his son’s personal laptop, the President is very likely personally compromised and has perhaps compromised the national security of the nation due to direct dealing with nations hostile to the U.S. Yet, the Department of Justice protects the president and his son by refusing to prosecute massive wrongdoing that would put the average citizen in prison for years. Due to the Executive’s control over who is prosecuted, the government is free to do whatever it wants, and citizens have no legal mechanism to restrain it.

A Navy officer took photographs of a nuclear submarine he worked on and was imprisoned for improperly handling national security secrets. During the same time period, a presidential candidate of the same party as the sitting President maintained an illegal secret server in her home. The unprotected server illegally received classified security information, which placed our nation’s secrets at risk of being obtained by foreign governments. The candidate was never prosecuted.

Congress issues a subpoena to the DOJ for information on its false filings before the Foreign Intelligence Surveillance Court. The DOJ refused to provide Congress with the documents to avoid embarrassment and likely the acknowledgment of its criminal activity. By refusing to provide such information, the constitutional checks on the other branches of government are rendered meaningless by the Executive branch.

The FBI regularly demanded Twitter, a private company,  ban what it deemed misinformation on its site, notwithstanding the fact that it was the FBI spreading the misinformation. While these actions are a violation of the First Amendment rights of citizens and perhaps direct election interference, the Executive will never prosecute itself or its corrupt agents carrying out his demands.

The most recent is the Trump series of prosecutions. No matter how negative one may think of Trump, prosecutions based on “Get Trump” are, as Professor Dershowitz asserts, a very significant threat to civil liberties, due process, and the constitutional rule of law.

Without an Independent Congress, there is no power to check an abusive Executive or even a tyrant.

Unless the President of the U.S. agrees to hold the federal government accountable for crimes or Congress is able to check the powers of the abusive Executive, most likely through impeachment, there are no other mechanisms for holding the federal government accountable for its crimes. The House of Representatives can always impeach an Executive that acts illegally; however, removing the Executive is unlikely since it requires a two-thirds vote of the Senate. Unless the President’s party votes to convict, the Executive remains in office, no matter the criminality of the conduct.

Certainly, citizens, we can speak out, protest, demonstrate, sometimes complain at government meetings, or send nasty letters to our elected officials. In the end, however, they will be ignored if the government wants to ignore them. Or arrested if the government wants them arrested, as illustrated by the FBI’s efforts to intimidate parents seeking answers from the Loudoun County School Board that covered up the actions of a sexual predator who assaulted a student in their school.

Citizens could emulate the peaceful resistance or nationwide strikes that Mahatma Gandhi led in India. Unfortunately, if peaceful resistance is undertaken, it is likely, the federal government will use the tactics of the British Empire by brutally attacking citizens. A recent incident supports this proposition. In a small Pennsylvania town, twenty heavily armed FBI agents, with weapons drawn, supported by a fleet of armored vehicles, arrested a pro-life activist at his home while playing with his seven children in the front yard. The crime was not disclosed by the FBI, but press reports suggest the person was arrested for pushing a man who was verbally harassing one of his young children. State authorities refused to prosecute the alleged “crime.” The person claiming to be pushed filed a criminal complaint in state court but failed to show up at trial. The case was dismissed. The FBI, however, targets certain groups, like pro-life advocates, Catholics attending Latin mass,  and parents who speak out at school board meetings, asserting them to be domestic terrorists, yet, leftist radicals who burn down cities are never prosecuted. The federal government views these arsonists as exercising free speech rights.

The only power “We the people” have is our vote for Congress.

The only power “We the people” have to control the federal government is our power to vote for members of Congress. We do not vote for the President; that is done by the Electoral College and a convoluted quilt of state voting laws and state Secretaries of State. All federal judges are appointed, as are the millions of nameless bureaucrats that make laws every day by regulating almost every aspect of society.

Our right to vote for members of Congress is extraordinarily powerful. It is a legal mechanism for a peaceful revolution. Citizens have the power to vote out the entire House of Representatives every two years and all elected officials over six years. To restrain the federal government, citizens must elect a Congress that is a trustee of the Constitution and a fiduciary to the institution in which they serve. Only by electing a Congress that is willing to check the powers of the other branches can Congress protect citizens. Until “We the people” elect a Congress that checks Executive power and judicial super legislating, we are accepting that –the federal government is our master, and we are its servants.

William L. Kovacs has served as senior vice president for the U.S. Chamber of Commerce, chief counsel to a congressional committee, and a partner in law D.C. law firms. His book Reform the Kakistocracy is the winner of the 2021 Independent Press Award for Political/Social Change. He can be contacted at [email protected]