The Washington Post
That student loan case? I’m rooting against both sides.
The Biden administration’s legal arguments for its student loan forgiveness plan, presented before the Supreme Court during more than three hours of oral arguments on Tuesday, made me doubly queasy.
As a threshold matter, the administration contends that technical rules about who has standing to sue in this case make the loan-forgiveness program effectively unreviewable in court. As I wrote soon after the court agreed to hear the case, that’s troubling, especially when the cost of the plan is somewhere in the neighborhood of half a trillion dollars.
On the merits, the administration rests its legal authority for forgiving student loan debt on a 2003 law that gives the Education Department broad power to change loan rules during times of war or national emergency. That had the air of a workaround — after candidate Joe Biden in 2020 promised student loan relief untethered to the impact of the covid-19 pandemic, after Congress balked at legislation that would have granted loan forgiveness, and without going through the ordinary, timeconsuming process of writing new regulations.
And yet, as Tuesday’s oral arguments underscored, the positions taken by the states challenging the president’s plan are similarly unsettling. If the student loan case raises the specter of an overreaching president abusing emergency powers, it also evokes fears of an imperial judiciary, straying beyond its constitutionally imposed boundaries at the expense of the other branches.
I find myself rooting against both sides.
The court is actually hearing two challenges to the loan forgiveness plan — one brought by six Republicancontrolled states, the other by borrowers who say it should have been more generous to them.
The strongest argument for standing involves Missouri, which created a loan-servicing entity called MOHELA that, the state contends, stands to lose money as a result of the forgiveness program. But do the states really get to barge into federal court to have the program overturned?
U.S. solicitor general Elizabeth B. Prelogar acknowledged that MOHELA itself would have standing to sue — if it chose to do so. But it didn’t, and the states’ claims that they are harmed by the loan-forgiveness plan, she told the court, are too “indirect” to let them turn a policy disagreement into a federal case.
The conservative justices, with the possible exception of Justice Amy Coney Barrett, didn’t seem inclined to let that get in the way of diving into the merits of the case. And here is where their professed textualism goes to war with their general aversion to regulation and their specific distaste for the policy at issue here.
The Heroes Act, first passed in 2003, gives the education secretary broad authority, during a presidentially declared emergency, to “waive or modify any statutory or regulatory provision” applicable to student loan programs, “as may be necessary to ensure” that recipients of financial aid “are not placed in a worse position financially” as a result of the emergency.
The Trump administration used that power to pause repayment obligations during the pandemic, and the Biden administration continued that practice at a monthly cost of $5 billion — more per year than loan forgiveness would cost, and without the accompanying uproar.
Invoking the law to cancel student debt entirely — the Biden program would eliminate up to $10,000 of debt for those earning up to $125,000 annually, and another $10,000 for those who received income-based Pell grants — would be a step of a different magnitude, affecting more than 40 million borrowers. “Never before has the Heroes Act been used to forgive a single loan,” Nebraska solicitor general James Campbell, arguing for the states, told the court.
The justices could find that the Biden plan goes beyond what the law permits: Does the authority to “waive” provisions of the law encompass canceling debt? If the law is supposed to prevent those affected by emergencies from being worse off, does forgiving loans go too far, especially because many who would benefit said they would have no trouble making repayments?
Or, even if they find the language of the Heroes Act applies to cancellation, they could invoke their newly hatched “major questions” doctrine to assert that a step of this magnitude required clearer congressional authorization.
“I think most casual observers would say if you’re going to give up that much amount of money, if you’re going to affect the obligations of that many Americans on a subject that’s of great controversy, they would think that’s something for Congress to act on,” Chief Justice John G. Roberts Jr. observed.
Maybe, but here’s something to ponder: Is the “major questions” doctrine, rolled out last year in a case involving the Environmental Protection Agency’s power to deal with climate change, respectful of congressional power or dismissive of it? “Congress used its voice in enacting this piece of legislation,” Justice Elena Kagan told Campbell, the states’ lawyer. “All this business about executive power, I mean, we worry about executive power when Congress hasn’t authorized the use of executive power. Here, Congress has authorized the use of executive power in an emergency situation.”
Roberts, invoking the majorquestions doctrine, raised the example of two high school graduates, one of whom takes out a student loan, the other who borrows to start a lawn business. The student borrower will probably end up better off financially — and now the lawn care person not only gets no such break, he’s being asked to subsidize the student’s bonanza.
“We like to usually leave situations of that sort, when you’re talking about spending the government’s money, which is the taxpayers’ money, to the people in charge of the money, which is Congress,” Roberts said.
Prelogar had an answer: Congress had already decided to give the executive branch broad powers to deal with student loans, not for lawn business borrowing. And ruling otherwise would impinge on congressional authority to provide for emergency responses. No, Congress didn’t manage to enact loan forgiveness on its own, but “the people in charge of the money” also passed up a chance to reverse the administration’s action.
So, we should worry here — not just about an imperial presidency but about an imperial judiciary. The conservative justices usually tout rules about standing as essential guardrails to constrain judicial authority. “Federal courts do not possess a roving commission to publicly opine on every legal question,” all the conservatives but Justice Clarence Thomas pronounced just two years ago. They now seem ready to junk those rules precisely so they can do some opining.
Same with the major-questions doctrine. It’s an approach, or so we were told, to be deployed in “extraordinary cases.” But at times during Tuesday’s arguments, it seemed the major-questions doctrine was another way for the justices to say, “I have some major questions with this policy.”
And that raises another major question: Is the court protecting congressional prerogatives — or are the conservative justices merely enhancing their own power to intervene, especially when an executive branch action is not to their liking?
If the student loan case raises the specter of an overreaching president abusing emergency powers, it also evokes fears of an imperial judiciary.