When Donald Trump wanted to spend $2.5 billion in Pentagon money that Congress never appropriated to build his border wall, the Supreme Court of the United States, without explanation, acquiesced. Environmental groups had contended that under constitutional and federal law, the president couldn’t “irretrievably commit taxpayer funds” to a project that would wreak havoc across habitats and public lands along the Southwest border—let alone do so without Congress’s blessing. Hiding behind the shadow docket, the five conservative justices who sanctioned this scheme didn’t bother to put in writing why this disruption was justified. One year later, the same justices agreed to let Trump’s border construction continue undisturbed.
Now that a different president is in office, a new challenge to the authority of the Executive Branch has landed before the Supreme Court, this time in the form of a pair of cases calling into question whether Joe Biden and his Department of Education were authorized to offer some 43 million borrowers student debt relief under the Higher Education Relief Opportunities for Students Act of 2003. Unlike Trump’s border money moves, which rested on a manufactured crisis, Biden responded under the HEROES Act, as the law is known, to meet the very real economic emergency precipitated by the Covid-19 pandemic. Congress didn’t hide this elephant in a mousehole. For many years, the law has granted the secretary of education broad authority to “waive or modify any statutory or regulatory provision applicable to the student financial assistance programs” in the department’s portfolio of loans.
This HEROES Act authority may also be extended on a class-wide basis to millions of borrowers at a time. That’s what Trump’s own secretary of education, Betsy DeVos, did at the outset of the pandemic and then again toward the end of her term to allow borrowers to hit the pause button on their student-loan payments, providing crucial relief in the form of forbearance, freezing interest accrual, and changing the terms for loan deferrals. According to the government, the earlier mass forbearance program, which is entering its third year and has remained a lifeline for millions, has a higher annual price tag than debt cancellation outright. Yet, while DeVos’s actions caused no stir, the Biden administration’s similar moves have prompted Republican outrage, accusations of executive overreach, and legal maneuvers to get them invalidated in the courts.
Biden is also in something of a bind of his own making. Biden v. Nebraska and Department of Education v. Brown, which the Supreme Court considered on Tuesday, exist, in significant part, because Biden created the conditions to feed this outrage machine in the first place. Had the president made good on his campaign promise to cancel student debt swiftly and without hesitation, as debt forgiveness advocates urged, instead of the hemming and hawing that led his administration to seek legal advice and drag its feet in other ways, perhaps these cases would’ve never gained as much traction in the court of public opinion—much the same way that no one thought to challenge Trump’s or Biden’s authority to put in place and maintain the loan forbearance programs that remain broadly popular and are costing the public billions.
Yet here we are, and on Tuesday, a number of the Republican-appointed justices leaned on the grievances that have entered the political discourse about student loan forgiveness—more so than the text of the HEROES Act itself—to signal that Biden, and only Biden, may have acted unlawfully.
Leading the skeptics was Chief Justice John Roberts, who throughout the three-hour-plus hearing actively prodded the Biden administration’s top lawyer before the Supreme Court, Solicitor General Elizabeth Prelogar, on whether debt cancellation at this scale, but not others, may have been a bridge too far.
“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,’” Roberts said. “And if they haven’t acted on it, then maybe that’s a good lesson to, say, for the president or the administrative bureaucracy, that maybe that’s not something they should undertake on their own.”
Unlike Clarence Thomas or Neil Gorsuch or the late Antonin Scalia, Roberts isn’t a true-blood textualist; the meaning of statutory words doesn’t matter as much to him as things like the separation of powers, the limits of presidential power, or the role of Article III judges in the constitutional scheme—all of which, he said in the hearing, are “extraordinarily serious, important issues” he and his colleagues must look out for. Prelogar, unflappable throughout her presentation, pushed back forcefully on each of the chief’s worries, making it clear that Congress has already spoken on the issue of loan cancellation in the HEROES Act—and that “unenacted legislation,” as she put it, is not what should carry the day in a legal controversy about what the law on the books today says. “I would think that the court, as it usually does, would place more focus on enacted legislation,” Prelogar said.
Indeed, as the solicitor general noted, Congress has already passed, and Biden signed, legislation that exempts student loan forgiveness from tax liabilities until 2025—which supports the argument that Congress was happy with the HEROES Act in its present form and determined that no additional fixes to it were needed. Biden also didn’t do anything particularly novel in wiping out $10,000 in debt from every qualified borrower, and $20,000 for Pell Grant recipients, under it. The very nature of this “tailored” relief, as the administration calls it, is far more modest than broader proposals by other prominent Democrats, and thus it undermines the belief that this is the unprecedented free-for-all its detractors denounce. Even Republican lawmakers who have filed legislation to negate the authority that Biden already has are all but conceding that the law is on the president’s side. Why else seek to amend it?
All of this left the conservative justices in the uncomfortable position of pushing alternative theories, outside the text of the HEROES Act, for why Biden may have violated the law. Like suggesting, as Roberts, Gorsuch, and Justice Samuel Alito did, that a proper exercise of this authority should’ve taken into account the “fairness” of extending relief to college-educated people but not to people who chose not to go to college—like a person who runs a lawn care business and is out of luck. Or pointing out, as Thomas and Justice Brett Kavanaugh did, that Congress didn’t specifically use the exact words loan cancellation or loan forgiveness in the HEROES Act, and thus the relief program consists of something heretofore unforeseen in our nation’s history. Or banging the drum of the so-called major questions doctrine, which the Supreme Court turbocharged last year when it curbed the powers of the Environmental Protection Agency to regulate carbon emissions.
Prelogar batted away all these extratextual concerns by repeatedly going back to the text and purpose of the HEROES Act. She even conceded that Biden’s debt-relief program was not like the Centers for Disease Control and Prevention’s “inserting itself in the landlord-tenant relationship”—a clear nod to the pandemic-era eviction moratorium the Supreme Court struck down in the first year of the Biden administration. “That’s not what we have here,” Prelogar told Kavanaugh, observing that student loan programs and discharges are “within the wheelhouse” of the secretary of education. More important still, Prelogar ably sought to calm the justices’ distaste for the regulatory state by explaining that, unlike government rules that impose heavy burdens on regulated entities, canceling student debt is a benefit that helps people. That is, the program doesn’t subject anyone to stiff penalties, let alone harm them in any tangible way.
In a perfect world, this latter point should carry a lot of weight with the Supreme Court, if not decide the future of Biden’s student-debt plan entirely, because before the justices even get to the lawfulness of the program, they must decide whether the parties challenging it have standing to sue. One core tenet of federal litigation is that you must suffer an actual injury that can be traced to unlawful conduct before you can go to court and vindicate your rights. And here, again, the conservative justices must face the reality that none of the parties challenging the student-debt program—a group of states in Nebraska and two individual plaintiffs in Brown—have slam-dunk claims of injury. (In one case, the states claim that an independent loan servicer that’s an arm of the state of Missouri is harmed, and thus the state is harmed, allowing it to sue. In the other, the two borrowers claim that Biden’s plan doesn’t offer them as much relief as they’d like, and so they can sue to invalidate it, in which case they’d get… nothing.)
What the Supreme Court will do with this “Rube Goldberg theory of standing,” as Prelogar called the plaintiffs’ theory in the Brown case, is anyone’s guess. But one thing that these cases would reveal, in the event the justices bend or expand their own rules to reach a desired outcome, is their own willingness to abandon nominally conservative doctrines and principles to get their way—and in the process, kick the courthouse door open to any and all comers who have a grievance against a federal program they don’t like. As Justice Ketanji Brown Jackson suggested on Tuesday, that’s no way to run a government. “I guess I’m concerned that we’re going to have a problem in terms of the federal government’s ability to operate,” she said.