On the last day of February, the Supreme Court will consider the fate of President Joe Biden’s student loan forgiveness plan.
The legal issues are straightforward: A federal law known as the HEROES Act expressly authorizes the program that Biden announced in the summer of 2022, as the Covid-19 pandemic continues. Under that program, most borrowers who earned less than $125,000 a year during the pandemic would receive $10,000 in student loan forgiveness. Borrowers who receive Pell Grants, a program that serves low-income students, can have up to $20,000 in loan forgiveness.
And yet, even though the program is expressly authorized by a federal law that allows the secretary of education to “forgive or modify” many student loan obligations “as the secretary deems necessary in connection with war or other military operations or national emergencies,” this Republican Communication with the Supreme Court influenced by appointees is unlikely to survive.
The court will hear two cases challenging this loan waiver program, Biden v. Nebraska And Dept. of Education v. Brown.
The reason at least one of these cases ended badly for student borrowers is a legal doctrine known as the “major question doctrine” that was originally invented by Republicans in the federal judiciary, and which has no constitutional basis in the text or the text of any law.
In theory, the main question doctrine provides that, when a federal agency takes an action of “vast ‘economic and political significance,'” it must be authorized to do so by a federal statute that expressly empowers the agency to do so. . Even under this doctrine, however, there is a strong argument that Biden’s student loan forgiveness program is valid, because the Heroes Act speaks clearly and broadly about the Secretary of Education’s ability to forgive or modify student loan obligations.
But as Justice Elena Kagan wrote in a 2022 dissenting opinion, the leading question doctrine serves less as a serious inquiry into congressional intent and more as a “text-free” card that allows her colleagues to override the federal veto. Programs that seek to cancel for reasons completely unrelated to what they say in the law.
For this reason, student loan borrowers who were expecting loan forgiveness should think twice before making any financial decisions that assume this forgiveness will actually happen.
Yes, the program is authorized by a federal law. But the court’s GOP-appointed majority has so far invoked the key question doctrine to strike down at least three Biden administration policies opposed by the Republican Party. And Republicans overwhelmingly oppose the loan forgiveness program.
The Heroes Act was enacted in the wake of the 9/11 attacks on the World Trade Center, to ensure that student borrowers affected by “war or other military operations or national emergencies” are not “financially disadvantaged”. Because of that emergency.
Although it was initially enacted on a temporary basis in 2003, primarily to benefit victims of the 9/11 attacks and members of the military who may struggle to pay their debts when called to active duty, Congress made the Heroes Act permanent in 2007. Thus, by making the Act permanent, Congress determined that the Secretary of Education should have broad and lasting authority to modify or eliminate student loan obligations in future emergencies.
The Heroes Act has some important limitations, the most important of which is that the Secretary’s power to modify student loan obligations is triggered only when the President declares that a “national emergency” exists, and it extends only to military personnel and other affected individuals. By that urgency. But when such an emergency — such as the 9/11 attacks or the Covid-19 pandemic — occurs, the Heroes Act speaks broadly to the Secretary’s ability to modify debt obligations.
Under the statute, “the Secretary is authorized to waive or modify any provision” of federal laws governing student loans — including provisions governing borrowers’ loan repayment obligations and provisions governing student loan cancellations. This power may be used “as the Secretary deems necessary in cases of war or other military operations or national emergencies.”
The Act contained several other provisions indicating that Congress intended the Secretary to have a free hand to act in the event of a national emergency. Often, for example, when a federal agency wants to create a new policy, it must go through a lengthy process known as “notice and comment” before the policy can take effect. But the HEROES Act expressly allows the Secretary of Education to skip notice and comment when exercising their loan modification and forgiveness powers under the HEROES Act.
The Heroes Act allows the Secretary to forgive loans a lotInstead of requiring the Department of Education to individually determine which borrowers are eligible. According to the statute, “the Secretary shall not exercise waiver or modification authority under this section on a case-by-case basis.”
And, above all, the statute expressly instructs federal courts not to interpret other federal statutes to limit the Secretary’s authority to modify student loan obligations. The Heroes Act allows the Secretary to use this authority “notwithstanding any other provision of law, unless made with specific reference to the Heroes Act”.
Finally, if more proof were needed that Congress specifically intended the Secretary of Education to have the power to discharge student loans related to emergencies like the Covid-19 pandemic, Congress enacted — as part of the 2021 Covid Relief Act — a provision called No one will be taxed on federal student loans that are forgiven between 2021 and 2025. This is a clear sign that Congress assumed the Secretary of Education would exercise their authority to forgive student loans related to the Covid pandemic.
Indeed, after the provision passed the Senate, one of its early champions, Sen. Elizabeth Warren (D-MA) released a statement saying “this change clears the way for President Biden to use his authority to cancel $50,000 in student loans” (the Biden administration, of course, ultimately decided to only forgive up to $20,000 in student loans ).
Given the text of the HEROES Act as well as the provisions governing student loan debt in the 2021 law, it’s hard to imagine an argument rooted in the text of federal law that undercuts Biden’s debt forgiveness program.
The Supreme Court’s Republican majority may nevertheless use its “get-out-of-text-free” card to end the debt relief program.
The court plans to hear two cases challenging the student loan forgiveness program: The Nebraska lawsuits brought by the red states of Arkansas, Iowa, Kansas, Missouri, Nebraska, and South Carolina; And brown The lawsuit was brought by two private individuals.
There is a chance that this court will dismiss the case because none of these parties have “standing” to bring these cases – to bring a federal lawsuit challenging a government policy, a plaintiff must show that they are injured in some way by that policy and that it is ambiguous. How does one get hurt if someone else’s debt goes down?
That said, if those two cases are dismissed for lack of standing, it will likely delay a showdown over the loan forgiveness program. Eventually opponents of the program are likely to find some institution—perhaps an institution that pays for student loans—that will be financially harmed by the program and is willing to file a lawsuit.
Turning to the merits of the two cases, brown The case borders on frivolity, and is unlikely to prevail even in this Supreme Court. The plaintiffs’ primary argument is that the Biden administration erred by failing to complete the notice and comment process before the loan forgiveness program went into effect. But, since the Heroes Act expressly exempts the Secretary’s loan forgiveness authority from the notice and comment process, this argument is completely without merit. It is no longer negotiable.
The Nebraska On the contrary, if the court decides to apply the “major question doctrine” here, there is a strong possibility that it will. As the Court has described the doctrine, Congress must “expressly state that it wishes to assign an agency decision of great ‘economic and political significance.'” Again, the Heroes Act speaks in broad terms about the Secretary’s power to forgive student loans, but courts have never fully explained how clearly a statute must be written to survive review under the major question doctrine. So judges could potentially find the Heroes Act insufficiently clear and shut down the loan forgiveness program.
This doctrine, which was invented by the Justices, is not enshrined in the Constitution or in any federal law, and the Court has never attempted to claim that it is authorized by any special statute. In contrast, in a recent appearance at Notre Dame Law School, Justice Brett Kavanaugh — a supporter of the doctrine — claimed that it is “rooted in constitutional values, and our understanding of how Congress works.”
Moreover, even a quick look at the courts’ application of this judicially-discovered doctrine reveals that the courts generally apply the doctrine in a haphazard and unprincipled manner, often targeting programs that the Republican Party (or the Court’s Republican appointees) dislike.
On the same day in January 2022, for example, the court handed down two decisions related to Biden administration rules requiring certain workers to either receive a Covid vaccine or be regularly tested for the disease. In the first of these decisions, National Federation of Independent Business v. Department of LaborThe court struck down a broad rule that applies to about “84 million Americans.”
Such a rule, most judges fairly reasonably concluded, involved matters of “huge economic and political significance.”
Yet in the second case, Biden v. Missouri, the court upheld a vaccination order that applies to nearly 10 million health care workers. The court made no attempt to explain why a rule affecting 84 million people triggers the main question doctrine, but a rule affecting only 10 million people does not. Nor did it explain what would happen if the Biden administration pushed through a vaccination rule that would apply to 20 million people. or 50 million people. Or 83,999,999 people.
Six months later, the court gave its verdict West Virginia v. Environmental Protection Agency (2022), which stripped EPA of much of its authority to combat climate change.
West Virginia The Obama administration’s Clean Power Plan was involved, a 2015 policy that set emissions reduction targets that were supposed to hit the energy industry by 2030. But this clean power plan proved to be a thing of the past. It never took effect — the Supreme Court voted along party lines to strike it down in 2016. And, because even the dirtiest methods of energy production are more expensive than the cleaner methods, the energy industry fully met the Obama administration’s 2030 goals in 2019. Business-related reasons. So it is likely that nothing significant would have changed if the Clean Power Plan had gone into effect.
And yet, in West VirginiaThe Supreme Court determined that this irrelevant regulation involved matters of such great economic or political significance that it must be excluded under the major question doctrine.
The doctrine of the main question, in other words, has no real substance. It essentially serves as an excuse that the court’s GOP-appointed majority can use to toss out agency actions they don’t like.
And so the fate of Biden’s debt forgiveness program will turn on whether at least two Republicans on the Supreme Court will decide they prefer a controversial program enacted by a Democratic administration. Maybe that will happen, but I wouldn’t bet on it.