I had hoped the administration would realize that the unilateral student loan pause is terrible policy. It’s a $5 billion per month handout to some of the most privileged people in our society. And though all handouts have consequences, this one is particularly bad.

The student loan pause is harmful

For one, it’s a straightforward tax on the poor. Enriching well-off college graduates has artificially increased buying power, which drives up inflation and translates to a tax on low-income families. For another, it creates an incentive not to work, exacerbating the labor shortage. Of the millions who lost their jobs during COVID, only about half are looking to rejoin the labor force. That makes everyone’s life miserable (have you been to a restaurant lately?), and makes goods and services more expensive. And it’s horribly unfair. Do we care about the young man who chose to be an electrician instead of a communications major? Nope, he still has to pay his bills. Unfair policies are bad policies.

I could go on, but I’ve already lost the public opinion battle. Only 33% of voters agree with me that the pause is a bad idea, and another 17% are unsure.

The loan-pause law was designed for active-duty soldiers

But even if you like the policy, hopefully you don’t like a totally lawless bureaucracy. But that’s exactly what the student loan pause is.

In our democracy, Congress gives unelected agencies, here the Department of Education, certain limited powers. Without Congress’s blessing, an agency has no authority to act. That means student loans can only be deferred if the agency can point to a law authorizing it.

The Department of Education claims the HEROES Act of 2003 blesses a nationwide student loan pause. But it doesn’t.

In the wake of September 11, Congress saw thousands of students end their studies mid-semester to join the fight against terrorism. When they returned home, most soldiers had accumulated student loan debt and some had been dropped from programs entirely. Congress passed the HEROES Act to ensure our active duty men and women would not be worse off for serving their country. For example, Sheila Jackson-Lee of Texas said, “The HEROES Act of 2003 ensures that the brave young men and women of our armed services will not have their educations compromised when they answer the call to active duty.”

And so the language of the bill is narrowly tailored to provide relief to people uniquely affected by war and disaster. The law allows the Department of Education to make student loan changes to prevent “affected individuals” from becoming worse off on their loans because they are “affected individuals.” And these “affected individuals” are people who (1) serve on active duty, (2) perform National Guard duties, (3) reside in a “disaster area,” or (4) suffer “direct economic hardship as a direct result of a war or other military operation or national emergency.” The administration thinks #3 applies.

The loan-pause law helps people unable to attend school or work

Weirdly, we all actually live in a disaster area. In 2020, the Trump administration approved COVID-related “major disaster” declarations for every county in every state, enabling tens of billions of FEMA dollars to be spent on unemployment benefits to testing. These disaster declarations are not doing much work today; states can now handle their 0.15 daily deaths per county. And young people with student loans are notoriously free from disaster. As we now know, more people under age 65 died from alcohol than COVID in 2020.

Back to the law – it does not say that the Secretary of Education may waive payments for everyone who lives in a “disaster area.” It says people in a disaster area cannot be put in a worse position financially because they live in a disaster area. That makes sense. Let’s say a hurricane floods your university, place of work or home. In that case, you can’t attend school or work because of the hurricane, meaning your loans will unfairly rack up because you live in a disaster area. COVID is the opposite. Does living in Cuyahoga County (Ohio) or Loudoun County (Virginia) or Brevard County (Florida) cause you to unfairly rack up loans because you live there? Obviously not.

The loan-pause law was not designed for nationwide use

If any of this was up for debate, another clue shows the Secretary’s power is very narrow. When Congress passed the HEROES Act, they priced it at $10 million, which was important because Congress had to find an “offset” to pay for it. This meager price tag shows Congress did not bless a nationwide pause at $5 billion a month.

Letting the administration rewrite the law is short-sighted

One might have argued that the student loan pause had legal grounding at the beginning of COVID (but you would not have needed to, as Congress itself passed a short COVID-related student loan pause). Today, however, there’s no real question that the student loan pause is lawless. The question, then, is what can we do about it? The court system is not well-suited for this challenge, as courts don’t like to answer legal questions in the abstract. That leaves Congress. They can absolutely step in and stop the executive branch from running roughshod over their clear-cut law. If they don’t, we’ll just keep seeing bolder and bolder abuses of the law. This is good for no one. While you might like abusing the law in one direction today, you’ll be devastated when the abuse goes the other way, when another party is in charge.

May Mailman is a legal fellow at Independent Women’s Law Center (iwlc.org).