The Supreme Court is an incredibly powerful institution, with the capacity to do tremendous damage to society. In recent months it has rolled back labor rights, stripped environmental protections, gutted affirmative action, legalized discrimination on free speech grounds, and more. But it did not kill student loan relief, though the ultraconservative supermajority certainly tried. President Biden’s cancellation plan, which grants up to $20,000 of relief for borrowers making under $125,000 a year, still has a fighting chance.
Only hours after the decision came down, Biden announced his commitment to pursuing cancellation through another legal pathway, namely the compromise and settlement authority granted to him by the Higher Education Act—an authority activists like myself have long been pushing the president to use. But the devil is in the details. For cancellation to have a chance of sticking this time around, the administration needs to learn from its past mistakes and act boldly and aggressively, implementing relief broadly and swiftly. While there is nothing the Biden administration can do to completely ward off future litigation, it would be far better—legally, morally, and politically—to fight these battles from the high ground of relief having already hit people’s accounts.
To be clear, Biden v. Nebraska rested on the flimsiest of pretexts and should have been laughed out of court. Indeed, a lower judge in fact dismissed it. But the case was then rushed up the chain using what’s called a “writ of certiorari,” a fast-tracking procedure that has been deployed fewer than 20 times in the court’s history. This meant there was no discovery process—the false claims at the heart of the case were never properly interrogated. The six Republican-led states behind the lawsuit argued that they had grounds to sue because Missouri would be “harmed” by Biden’s relief program—harmed because MOHELA, a Missouri-based loan servicer, would lose revenue. MOHELA, however, was not formally part of the litigation, and in fact publicly distanced itself from the effort. What’s more, research by the Debt Collective, the debtors’ union I cofounded, and the Roosevelt Institute showed that MOHELA’s revenue was actually on track to reach record high revenue after cancellation.
The justices didn’t let facts get in their way, or in the way of the right-wing billionaires they pal around with. This year, Justice Samuel Alito and Justice Clarence Thomas (or, rather, his conspiracy-spewing wife Ginni) have been shown to have ties to plutocratic opponents of debt relief. They invoked a false harm to inflict a very real one—namely, the denial of debt cancellation to 43 million people. Sixteen million debtors have received notices from the Department of Education that their applications had been approved. Many of them made critical financial decisions on the assumption that the federal government could be trusted to keep its word.
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The SCOTUS decision, penned by John Roberts, never mentions debtors or the havoc denying them promised cancellation will play on their lives. Instead, Roberts spends pages quibbling over the word “modify.” Biden v. Nebraska hinged on the president’s use of the Higher Education Relief Opportunities for Students (HEROES) Act—a 2003 law that grants the Department of Education the ability to “waive or modify” any provision of the student loan program to prevent borrowers from being made worse off by a national emergency (for example, the Covid-19 pandemic). In February, former representative George Miller, one of the architects of the act, told Insider that the law was crafted to give the education secretary wide discretion and that the Biden administration was using it exactly as intended.
The right-wing judges disagreed. Invoking the specter of the French Revolution, Roberts declared the program too economically and politically significant to proceed. This is the basic logic of the novel, interpretative framework known as the “major questions doctrine.” Major questions posits that Congress should not be assumed to have delegated matters of economic and political significance to administrative agencies, making it a handy tool to eviscerate the regulatory and welfare state. In addition to halting promised debt relief, this interpretive fig leaf was used to justify blocking the Environmental Protection Agency from regulating carbon emissions in 2022’s West Virginia v. EPA. In her dissent, Justice Elena Kagan rightly calls it a “made-up” doctrine; I consider it a pretentious way of saying “power grab.” Of course, major questions are not invoked when PPP loans are forgiven, failing banks are bailed out, interest rates raised, or fossil fuel companies subsidized by the public purse.
Supreme Court justices often accuse legislators and the president of breaching the Constitution, but it is highly unusual for a justice to accuse their colleagues of doing so, as Justice Kagan, joined by Justices Sotomayor and Jackson, does in her fiery dissent: “The result here is that the Court substitutes itself for Congress and the Executive Branch in making national policy about student-loan forgiveness.” Kagan stresses that “the Court, by deciding this case, exercises authority it does not have. It violates the Constitution.”
For long-time proponents of debt relief like myself, these words offer cold comfort. They validate what the Debt Collective and our allies have long pointed out—that Congress has clearly delegated the authority to cancel student loans to the president and the Department of Education. But debtors need more than words. We need action.
In his remarks last week after the ruling, Biden promised borrowers that his administration would “use every tool at our disposal to get you the student debt relief you need.” He also warned that the new approach will be slow and bureaucratic. In reality, there is nothing in the Higher Education Act that prevents the president from immediately canceling student debt under the current regulations.
The fact that the president even said the words “Higher Education Act” instead of throwing in the towel is a testament to grassroots organizing—organizing that is only gaining momentum. But just using this specifically legal authority is not enough to guarantee success. How he uses it, and how fast, matters, too. Last year, the White House took an astonishing 51 days to put the application for relief online after announcing the president’s cancellation program. By moving at a snail’s pace, the administration bought time for Republican officials and billionaire-backed front groups to line up lawsuits with sympathetic judges. President Biden must not repeat past mistakes and further enable opponents who already enjoy numerous advantages, including deep-pocketed supporters and a judiciary stacked in their favor.
Of course, speed and conviction alone won’t force right-wing ideologues and rogue justices to stand down. Lawsuits will still be filed. But tens of millions of people actually seeing their balances reduced or wiped out would certainly be transformative, and would change the political terrain on which any legal challenges are waged. Instead of handing conservatives an easy victory, why not dare John Roberts and his colleagues to try to reimpose canceled debt, a process that is hardly straightforward? Doing so would help clarify the truth we all need to face if we want not only debt cancellation but democracy itself to survive: The only thing more illegitimate than student loans is the Supreme Court.
