Tomorrow, the Supreme Court hears oral arguments in two cases challenging President Joe Biden’s student-loan-forgiveness plan. Because of the vast sums at stake—at least $400 billion—the case has enormous practical consequences. But the legal issues are even more important. Both the Eighth Circuit in Biden v. Nebraska and the district court in Department of Education v. Brown (which the Fifth Circuit effectively affirmed) put the program on hold, signaling serious constitutional issues that the justices agreed to consider on an expedited basis.

In effect, the plan combines the dubious legal mechanisms that Donald Trump asserted in diverting military funds to pay for border wall construction (which Congress had rejected) with those Biden invoked in attempting to extend the Centers for Disease Control’s eviction moratorium and impose a vaccine mandate through the Occupational Safety and Health Administration (without attempting to get Congress to legislate either). If Biden succeeds in reversing the lower courts, it would set a dangerous precedent for presidential abuse of emergency powers and usurpation of Congress’s power of the purse. That’s unlikely to happen, given how a majority of the Court have previously handled claims of expansive executive power, but nothing is guaranteed.

[The difference between the two may be nuanced, but it’s constitutionally significant. Trump moved funds around that were appropriated by Congress to Homeland Security and the Defense Departments. Since those funds were not earmarked — a fun argument in itself — the executive branch has leeway to move those around, especially since Congress authorized the border wall in 2006. Biden’s program would have directly seized $400 billion without any such appropriation by Congress. It won’t be difficult for the court to distinguish between the two situations. Tomorrow’s arguments should be interesting indeed. And that Neil Diamond reference in the headline is all mine. — Ed]