This story is part of the Perspectiveseries on how the next president can make progress without new legislation. Read all our articles on the agenda of the first day here.

A Memo from the Department of Education published this week, claiming that the agency does not have the power to write off student debt on its own, claims to be written by Reed Rubinstein, the senior deputy general counsel. But paternity could also be reasonably claimed by a man who has been dead for nearly five years.

Former Supreme Court Justice Archivist Antonin Scalia wrote six of the opinions cited in the memo and co-authored a scientific article cited in the text. Scalia also agreed with opinions in five other cases mentioned in the document. The only quotes cited at length in the memo were either from Scalia’s hand or from an opinion he adhered to. It is fair to say that Antoninus Scalia of the tomb wrote this analysis.

The Rubinstein / Scalia memo was obviously intended as a preemptive strike as the Trump administration draws to a close. For several years now, academics and advocates argued that the Department of Education have all the discretion it needs through a provision in the Higher Education Act known as the “Compromise and Settlement” authority to stop collection, reduce amount owed or fully canceled student loans of millions of borrowers.

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In fact, the Department of Education has already used one of these authorities in the past year. During the pandemic, the agency unilaterally suspended payments on student loans without generating additional interest. The CARES law and the recent COVID relief bill also suspended student loan payments, but the Department of Education did so on its own. The Rubinstein / Scalia note does some flashbacks to assert that the ministry had the power to withhold payments but not to reverse them, even though it came from the same statutory source.

Biden’s incoming administration has come under pressure to write off nearly all of the $ 1.6 trillion in student debt held by the federal government, not only from advocates but also New Senate Majority Leader Chuck Schumer. By formulating a legal opinion just before the end of the Trump administration that student debt cancellation is illegal, conservative opponents now have ammunition to argue that the Biden team cannot act unilaterally.

Unfortunately for them, the note is not binding and bears the signature of a politician, not to mention the fictitious signature of the preferred right-wing lawyer. It’s no surprise that Scalia appears so much in a legal note on statutory interpretation. But this suggests that this is a political document designed for political advantage, rather than unbiased analysis.

From the outset, the memo states that federal dollars can only be spent “according to the letter of tough judgments made by Congress.” (No one mentions Trump embezzlement of congressional funds pay for his border wall.) This quote comes from Office of Personnel Management v. Richmond (1990), an opinion joined by Scalia.

He goes on to state that the higher education law should be interpreted restrictively, citing FDA vs. Brown and Williamson Tobacco, another opinion attached to Scalia. He then quotes Scalia directly from a book he co-wrote titled Reading the law: interpreting legal texts, which is primarily a reaffirmation of his belief in guessing any legal force from the original text (a concept known as “originalism”). Here are five more quotes from this section, all from opinions attached to Scalia, including two written by Scalia: Rake vs. Wade and Kungys v. United States, which contains the “cardinal rule of statutory interpretation that no provision should be interpreted as being entirely redundant”.

The point to remember here is that the memo gets its full frame on how to interpret statutory law from Antonin Scalia, among the most conservative legal minds of the past half century.

The memo then elevates a doctrine invented by Scalia known as “elephants in mouse holes.” The idea here is that Congress would not delegate significant authority to the executive by casually introducing it into the text; he “does not hide … elephants in mouse holes”. the Perspective anticipated an ‘elephants in mouse holes’ argument when discussing attempted legal obstacles to executive action in the Agenda of the first day.

This intelligent reading of the mind is of course the opposite of Scalia’s alleged loyalty to the statutory text. Apparently we are now supposed to believe that Congress text matters unless the politics involved are very important, because Congress just wouldn’t do that. To support this, the note also cites Whitman v. American Trucking Associations, another opinion written by Scalia.

While the memo admits that Congress has, in fact, granted the ability to “enforce, pay, compromise, waive or release” federal student loans, it uses another opinion drafted by Scalia to contradict this. In RadLAX Gateway Hotel v. Amalgamated Bank, Scalia argued that general assignments of authority to the executive were rejected saying more specific provisions should take precedence. The memo cites Scalia in detail here, and cites a similar quote in Morals vs. Trans World Airlines. This is again a fairly new interpretation for a Supreme Court justice who has repeatedly insisted that only the legislative text matters. And again, this same administration used the exact same power to schedule wide pauses on student loan payments, regardless of Scalia’s statements.

A memo like this with a patina of authority might be just what Biden needs to stiffen campaigners over student debt cancellation.

Nonetheless, a memo like this with a patina of authority – although it all came from a deeply conservative and dead Supreme Court justice – might be just what Biden needs to stiffen campaigners on the cancellation of student debt. Biden argued erase $ 10,000 in student debt of individuals, but only through an act of Congress, claiming that it finds the legal argument for executive action “quite questionable. In fact, Biden is trying the same double game as Trump: he agreed to extend suspension of student loan payments using executive power, but refuses to cancel payments with that same authority.

If Biden succumbed to outside pressure and embarked on unilateral debt cancellation, the courts would decide the matter, but only if there is someone with standing to sue. The main party affected by student debt cancellation is the student borrower, and they are unlikely to have a problem with this.

Reid Rubinstein, co-author of the memo by Scalia, is well positioned to lead a conservative attack on policy that would bring mass relief to millions of people. A corporate lawyer, Rubinstein previously served as Senior Advisor to the United States Chamber of Commerce, as well as Advisor Cause of action, a non-profit organization that promotes “limited government” and issues amicus briefs in virtually all Supreme Court cases.