Supremely skeptical
Conservative justices hint at overreach in Joe debt relief
President Biden’s $400 billion bid to cancel student loan debt for millions of Americans met skepticism on Tuesday from key swing justices on the conservative Supreme Court, which heard oral arguments in a case that could quash the relief program.
Across more than three hours of arguments, a lawyer representing the Biden administration, Solicitor General Elizabeth Prelogar, claimed six GOP-led states lacked legal standing to challenge the program, and that the administration can clear the debt under emergency powers granted by Congress.
Conservative justices in the majority appeared to be toying with a ruling that would reject her arguments and dispense with the White House’s plan to wipe out up to $20,000 in student loans for low-income Americans and up to $10,000 for individual earners making up to $125,000 a year.
“Some of the biggest mistakes in the court’s history were deferring to assertions of executive emergency power,” said Justice Brett Kavanaugh, a conservative who sits near the ideological center of the nine-member court. “Some of the finest moments in the court’s history were pushing back against presidential assertions of emergency power.”
Chief Justice John Roberts, another swing conservative, said the case reminded him of a challenge to former President Donald Trump’s plan to end a program that protects young undocumented migrants.
By a 5-to-4 vote, the Supreme Court turned back Trump’s plans to terminate the policy, called Deferred Action for Childhood Arrivals. Roberts wrote the majority opinion in that case.
“We take very seriously the idea of separation of powers, and that power should be divided to prevent its abuse,” Roberts said Tuesday.
“You would recognize at least that this is a case that presents extraordinarily serious, important issues about the role of Congress?” Roberts asked Prelogar.
She countered that the judiciary has a role in the questions at play, but that the Republican-led states — Arkansas, Iowa, Kansas, Missouri, Nebraska and South Carolina — are not “proper plaintiffs in this case.”
Partisan state challenges to federal policies have increased since 2007, when the Supreme Court found that states are “entitled to special solicitude” in the court’s analysis of standing. At the time, Roberts wrote a dissent challenging the finding.
Aside from the question of standing, Prelogar also said Tuesday that the White House’s debt relief plan properly deploys emergency powers vested in the education secretary under the so-called HEROES Act.
“Congress wanted to cover the waterfront,” Prelogar said of the 19-year-old law. “This is not a situation where the secretary is acting outside the heartland of his authority.”
Biden’s policy, premised on the COVID emergency, would benefit a projected 43 million American borrowers and wipe the full debt balances for an estimated 20 million.
Liberal justices, who are outnumbered 6-to-3 on the court, seemed comfortable with the Biden administration’s position that the HEROES Act empowered the White House to clear the debt.
“Congress could not have made this much more clear,” Justice Elena Kagan said. “We deal with congressional statutes every day that are really confusing. This one is not.”
She and her liberal colleagues sometimes steered the conversation back to the question of standing.
“It’s hard to imagine how the state of Missouri can claim an injury,” Justice Sonia Sotomayor said, sounding unmoved by the challengers’ position that the federal plan would harm Missouri by depriving its Higher Education Loan Authority of revenue.
At least one conservative on the court, Justice Amy Coney Barrett, seemed puzzled by the challengers’ advocacy on behalf of the authority, called MOHELA, which has a foggy quasi-governmental status but pays into the state’s coffers.
James Campbell, the Nebraska solicitor general who represented the challengers, said the debt relief policy would cut about 40% of MOHELA’s revenue.
“Why didn’t the state just make MOHELA come then, if MOHELA’s really an arm of the state, and all of this would be a lot easier?” Barrett asked Campbell. “If MOHELA was here, MOHELA would have standing.”
He replied, “Your Honor, that’s a question of state politics.”