If you were hoping that your student loans would be forgiven under a program that President Joe Biden announced last summer, you should, unfortunately, make other plans.
On Tuesday, the Supreme Court heard oral arguments in two cases, Biden v. Nebraska and Department of Education v. Brown, that ask the Court to strike down the student loan relief program. That program would provide $10,000 in relief to most borrowers who earned less than $125,000 a year during the pandemic, and $20,000 in relief to borrowers who received Pell Grants.
The Brown case is laughably weak, and no justice appeared to believe that federal courts have jurisdiction to hear this case. But the Supreme Court only to needs to assert jurisdiction over one of these two cases to kill the loan relief program, and the Court appeared likely to split along party lines in the Nebraska case. Though there is an off chance that Justice Brett Kavanaugh or Amy Coney Barrett might break from their fellow Republican appointees, all six of the GOP-appointed justices appeared inclined to kill the program.
And even if the Biden administration did convince Kavanaugh or Barrett to vote in their favor, that would not be enough. The administration would need both of their votes to prevail.
The justices are likely to strike down the program, moreover, despite the fact that the federal Heroes Act explicitly gives Secretary of Education Miguel Cardona broad authority to “waive or modify” many student loan obligations “as the Secretary deems necessary in connection with a war or other military operation or national emergency,” such as the Covid-19 pandemic. As it turns out, the most important question in American law is not what the law actually says, it is whether the nine justices on the Supreme Court think the policy is a good idea.
Almost immediately after the argument began, the justices split into two partisan camps. The Court’s three Democratic appointees largely argued that the judiciary’s job is to follow the text of federal law. As Justice Elena Kagan put it at one point, the Heroes Act is “really quite clear here” that this student loan forgiveness program is allowed. Under this approach, that should be the beginning and the end of the Court’s inquiry (although it’s worth noting that the three Democratic justices also asked questions suggesting that they do not believe that federal courts have jurisdiction to hear this case).
A handful of questions by Kavanaugh and Barrett aside, the six Republican appointees spent much of the argument fixated on concerns that if this student debt relief program is upheld, then the Biden administration would have too much power. Notably, US Solicitor General Elizabeth Prelogar received some of the harshest questions from Chief Justice John Roberts — ordinarily the most moderate member of the Court’s Republican bloc — who immediately criticized the size of the program because, he claimed, it will lead to “half-a-trillion dollars” in loan obligations being waived.
The Court’s Republican appointees spent much of the argument discussing policy disagreements with President Biden that have nothing whatsoever to do with the question of whether this loan forgiveness program is legal. Roberts, along with Justices Samuel Alito and Neil Gorsuch, for example, all took turns criticizing Prelogar’s position because this loan program benefits student borrowers and not, say, someone who took out a loan to start a lawn care business.
The obvious response to this legally irrelevant objection to this program is that, as Justice Kagan pointed out, “Congress passed a statute that deals with loan repayment” for student borrowers, and it didn’t pass a statute that provides loan forgiveness to people who own lawn care businesses.
But, if Tuesday’s argument is any sign, Roberts, Alito, and Gorsuch’s disagreements with the Biden administration's policy are likely to trump the actual text of the Heroes Act.
Under the Heroes Act, Biden’s loan forgiveness program is lawful
The Heroes Act speaks in expansive terms about the Secretary of Education’s power to forgive student loans, at least in response to a national emergency. Under this law, “the Secretary is authorized to waive or modify any provision” of the federal laws governing student loans — including the provisions governing borrowers’ obligation to repay their loans, and the provisions governing cancellation of student loans. This power, moreover, may be exercised “as the Secretary deems necessary in connection with a war or other military operation or national emergency.”
Additionally, Congress took several additional steps to make sure that the secretary could act quickly to forgive student loans. Frequently, for example, federal law requires government agencies to undergo a time-consuming process known as “notice and comment” before they can alter federal policy. But the Heroes Act explicitly exempts the secretary’s power to waive or modify loans from this process.
(This, by the way, is why the Brown lawsuit is so weak. The plaintiffs in that case allege that the Biden administration's student loan forgiveness program is unlawful because it did not go through notice and comment.)
Additionally, the Heroes Act provides that “the Secretary is not required to exercise the waiver or modification authority under this section on a case-by-case basis” — thus allowing him to dole out loan relief en masse to many borrowers at a time.
All of this said, the Supreme Court has, in recent years, developed a doctrine that it uses to strike down federal policies created by a government agency, even when those policies are explicitly authorized by an act of Congress. This doctrine, known as “major questions,” provides that Congress must “speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’”
So, when Roberts almost immediately brought up the fact that this particular loan forgiveness program will impact many borrowers and will save them a whole lot of money, he was speaking the language of this major questions doctrine. The whole idea behind the doctrine is that big government programs are inherently suspect, at least when they are promulgated by a federal agency.
It should be noted that, even on its own terms, the major questions doctrine only requires Congress to “speak clearly” if it wants to expansive powers to a federal agency. And, as Justice Kagan noted during oral argument, “Congress doesn’t get much clearer” than the Heroes Act.
But this doctrine itself isn’t very clear; the Court hasn’t laid out how “clearly” Congress must speak, or what does or does not constitute a matter of “vast ‘economic and political significance.’” Moreover, the Court hasn’t exactly applied this major questions doctrine in a principled way. In West Virginia v. Environmental Protection Agency (2022), for example, the Court struck down a regulation that never took effect, and that likely would have accomplished nothing at all, on the grounds that it involved a matter of “vast ‘economic and political significance.’”
So, if at least five of the justices want to end this loan forgiveness program, the major questions doctrine could easily be used to strike it down.
With two exceptions, the Republican-appointed justices were very hostile to the loan forgiveness program
Two Republican-appointed justices did ask a few questions that suggest that, at the very least, they don’t believe that the legal case against the loan forgiveness program is a slam dunk.
One side issue in this case is whether any of the plaintiffs challenging the loan forgiveness program have “standing” to bring a federal lawsuit — in order to file such a suit, a federal plaintiff must show that they were injured in some way by the policy they hope to challenge. The plaintiffs in the Nebraska suit are six red states, only one of which, Missouri, has a plausible claim that it was injured by the student loan relief program.
Essentially, Missouri argues that it is injured because a corporation largely controlled by the state — the Higher Education Loan Authority of the State of Missouri (MOHELA) — will lose revenue if the loan forgiveness program takes effect.
No one, including Solicitor General Prelogar, contests that MOHELA would have standing to challenge this program if it wanted to. But MOHELA did not file a lawsuit, Missouri did, and it is unclear under current law whether a state may claim an injury because a state-owned corporation is injured by a federal policy.
All three of the Democratic justices appeared to believe that, if MOHELA wants to challenge this program, it must do so itself. Similarly, Justice Amy Coney Barrett also wondered why MOHELA didn’t file its own lawsuit. If MOHELA is simply an arm of the state, Barrett asked at one point, then why couldn’t Missouri simply “strongarm” MOHELA into filing a lawsuit?
But even if Barrett agrees with the three Democratic appointees that Missouri itself lacks standing, that’s only four votes out of nine. And Barrett also asked questions suggesting that she might read the Heroes Act narrowly to prohibit the government from outright forgiving student loans.
Justice Brett Kavanaugh, meanwhile, did have a moment when he seemed to acknowledge the breadth of the Heroes Act, suggesting that the word “waive” is broad enough to permit the government to cancel a student loan entirely.
But Kavanaugh is also a strong proponent of the major questions doctrine, and many of his questions focused on his desire to limit the federal government’s power — at one point, he even seemed to compare this debt relief program to President Harry Truman’s unconstitutional attempt to seize control of much of the nation’s steel industry during the Korean War.
(Truman’s actions are not like the modern-day student loan forgiveness program because, as the Supreme Court explained at the time, he acted without relying on any “statute that expressly authorizes the President to take possession of property as he did here.”)
Similarly, Kavanaugh joined Roberts in noting the sheer ambition of Biden’s student loan relief program, and he indicated at one point that the Heroes Act did not “authorize the specific action” taken by the Biden administration. That suggests that he is likely, but not entirely certain, to vote with his fellow Republican appointees to nix the program.
Given the hostility Roberts displayed toward the student loan program Tuesday, the liberal appointees would most likely need to win both Kavanaugh’s and Barrett’s votes to preserve the program.
Ultimately, this case boils down to a question of who gets to decide important questions of federal policy. The position articulated by Kagan and her fellow Democratic appointees is that Congress should decide. And, if Congress writes a statute that clearly delegates a particular power to a federal agency, then the courts should not second-guess that agency’s decision.
Meanwhile, the Court’s Republican appointees seemed more concerned that giving too much power to a presidential administration is itself inherently dangerous, and thus the Court must create some extratextual limits on the administration's power. Under this approach to the law, the ultimate decision whether to cancel student loans rests not with any elected official, but with the Court itself.
And, with six Republican appointees and only three Democrats on the Court, that means that it is likely that no one will have their loans forgiven.