Although the President cannot legally implement broad student loan forgiveness through an executive order, it may be possible to implement loan forgiveness by issuing new regulations in the Income-Contingent Repayment plan, remaking it into a new loan forgiveness program.
Regulatory Authority for ICR
The regulatory authority allows the U.S. Department of Education to reduce the length of the repayment term, reduce the percentage of discretionary income and change the definition of discretionary income. That’s everything needed to implement a broad student loan forgiveness program.This is not just a theoretical exercise. It has already been done twice before. The U.S.
Although the repayment term can be less than 25 years, the Higher Education Act of 1965 requires the repayment term to be at least 5 years, unless the borrower requests a shorter repayment term. There is also some statutory language that suggests that the repayment term must be at least 10 years. However, the economic hardship deferment, income-driven repayment plans, the standard repayment plan and the paused payments during the pandemic all count toward the repayment term.
An application process may be required to get borrower approval for transferring income information from the IRS, which would prevent the loan forgiveness from being implemented automatically. However, the U.S. Department of Education may already have income information for borrowers in an income-driven repayment plan, which is a third of federal student loan borrowers.
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