It’s only a few so far, but any sort of insta-backlash from the president’s own party on the day of a major policy announcement is noteworthy.

I suspect most Democrats who are vulnerable this fall are waiting for the polling to tell them what to do. If you’re a progressive representing a deep-blue district, it’s an easy call: The policy is wonderful, a good start on what should end up as a much broader debt-forgiveness plan. If you’re a conservative, it’s also easy: The policy is irresponsible and unjust in about six different ways. But if you’re a centrist Dem running in a purple district, you’re caught between not wanting to piss off your college-educated liberal base by opposing the plan and not wanting to piss off center-righties by endorsing it. The polling will tell you whose side to take.

Which is why it’s notable that some Democrats aren’t waiting, having evidently been convinced already that the class politics of this giveaway to the professional class are so toxic that they’d better line up against Biden ASAP. Politico rounds up some of the comments that I missed yesterday:

Sen. CATHERINE CORTEZ MASTO (D-Nev.): “I don’t agree with today’s executive action because it doesn’t address the root problems that make college unaffordable. We should be focusing on passing my legislation to expand Pell Grants for lower income students, target loan forgiveness to those in need, and actually make college more affordable for working families.”

Rep. JARED GOLDEN (D-Maine): “This decision by the president is out of touch with what the majority of the American people want from the White House, which is leadership to address the most immediate challenges the country is facing.”…

Rep. SHARICE DAVIDS (D-Kan.): “It’s not how I would have addressed the issue.”

The head of policy at the center-left group Third Way is also unenthused:

Fiscally reckless, unjustified on policy grounds, likely unconstitutional, politically fraught. Political backlash on #CancelStudentDebt @JoshKraushaar reports in @axios https://t.co/Zwi5MBj8Yx

— Jim Kessler (@ThirdWayKessler) August 25, 2022

So are some prominent Democratic economists, including the man who famously warned of inflationary effects last year when Democrats passed their COVID relief bill. “I hope the Administration does not contribute to inflation macro economically by offering unreasonably generous student loan relief or micro economically by encouraging college tuition increases,” Larry Summers tweeted a few days ago. “Every dollar spent on student loan relief is a dollar that could have gone to support those who don’t get the opportunity to go to college.” Jason Furman, who chaired the Council of Economic Advisors under Obama, also lowered the boom:

The White House fact sheet has sympathetic examples about a construction worker making $38K and a married nurse making $77,000 a year.

But then why design a policy that would provide up to $40,000 to a married couple making $249,000? Why include law and business school students? pic.twitter.com/463YMmCT9g

— Jason Furman (@jasonfurman) August 24, 2022

Most importantly, everyone else will pay for this either in the form of higher inflation or in higher taxes or lower benefits in the future. I did a thread on this last night but given the new announcement you need to double everything in it. https://t.co/CJ7aPYyAw3

— Jason Furman (@jasonfurman) August 24, 2022

How often do you see a major American newspaper use its lead editorial to dump on a big new Democratic policy initiative? You’re seeing it today at WaPo: “Widely canceling student loan debt is regressive. It takes money from the broader tax base, mostly made up of workers who did not go to college, to subsidize the education debt of people with valuable degrees. Though Mr. Biden’s plan includes an income cap, the threshold does not reflect need or earnings potential, meaning white-collar professionals with high future salaries stand to benefit.”

Why would Biden risk so much political pain from his own side to follow through on this? The answer may lie in this NBC piece. Broadly speaking, student loan forgiveness is a pre-midterm bribe to college grads — but Hispanic college grads in particular tend to carry larger debt burdens than other students do and will benefit disproportionately. Some 51 percent of Hispanic students have borrowed money to help pay for college, and of that number, roughly half will have their entire outstanding balance wiped away by Biden’s new plan.

One of the key subplots of this election cycle is the degree to which Hispanics have shifted from left to right during the Trump era. Liberal analyst Ruy Teixeira has written endlessly about how woke cultural politics have scared a working-class group like Latinos into the GOP tent, a shift that’s left Democrats even more dependent on their well-educated base. That makes the new debt-forgiveness plan a twofer, aimed at motivating that well-educated base to turn out this fall but also aimed at wooing back some Hispanic voters who might otherwise be drifting towards Republicans.

Which brings us to an overlooked question: Is, uh, any of this legal? Typically when the federal government enacts a major policy change, it starts with a bill in Congress. Why, it was just a month ago as I recall that the Supreme Court reaffirmed that the executive branch can’t act unilaterally on “major questions” of policy. That would suggest that Biden lacks the constitutional authority to do what he did yesterday. But don’t take my word for it:

>> @SpeakerPelosi says Biden does *not* have the power to cancel student loan debt — as some Democrats, led by @SenSchumer, are urging him to do.

"That has to be an act of Congress," Pelosi says. pic.twitter.com/2V7ALDDG3y

— Michael Stratford (@mstratford) July 28, 2021

Lefty law prof Jed Shugerman is uneasy about the legal sturdiness of Biden’s order for the same reason:

I am generally skeptical of presidents using (and abusing) emergency powers.
I think reasonable people can make arguments for and against the order.
I cannot defend the OLC's weak choice to just ignore the recent Roberts Court precedents against invoking COVID emergency powers.

— Jed Shugerman 🇺🇦 (@jedshug) August 24, 2022

Some law profs ask me how the "Major Question Doctrine" precedents would've affected the analysis. Here is how I would have approached the memo:
Step 1. The MQD is now law. Is this debt relief a question of "vast economic & political significance"?
Of course…

— Jed Shugerman 🇺🇦 (@jedshug) August 25, 2022

Could it be that Biden issued the order *because* he suspects it won’t survive in court? I had the same thought yesterday as Josh Barro and Sarah Isgur:

And when both parties use the White House to pursue base politics knowing they have no legal leg to stand on (ex. Obama: DACA/DAPA), relying on the courts to be the heavy, the WH pays no political price. But the courts are increasingly viewed as partisan by the other side. https://t.co/19yAIKc7xH

— Sarah Isgur (@whignewtons) August 24, 2022

The optimal outcome here for the White House is to make their base happy by announcing the policy and then have SCOTUS strike it down to spare them from the many pernicious consequences of actually implementing it. That won’t happen before the midterms, but if a 6-3 conservative Court trashes the policy next year, that’ll be nice turnout fuel for lefties in 2024. “The g-ddamned Republicans blocked us again!”

In lieu of an exit question, read Gabe Malor’s thread last night wondering if the courts might let Biden’s policy stand after all. It’s not that Shugerman is wrong about the dubious constitutional basis for it, it’s that there’s no one who obviously has standing to challenge the policy in court. The closest thing we have to a party that’s suffered a concrete injury here are the creditors who made the loans that’ll now be forgiven by Uncle Sam — but what “injury” have they suffered, exactly? They’re going to get the money owed to them, just from the federal government instead of the borrowers. And while they may lose out on years of interest payments by having the principal suddenly paid off, borrowers are already entitled under the law to pay off their balance at any time. Debtors aren’t legally entitled to that interest. So who has proper standing to sue?