A conservative Supreme Court justice appeared poised to overturn a student loan relief plan targeted by President Joe Biden during arguments on Tuesday, though the debt could survive if two conservatives sided with liberal justices and dismissed plaintiffs who want to sue.
At least five of the six conservative justices appeared skeptical of the argument made by Attorney General Elizabeth Prelogar that the student loan relief program is legal. He questioned the authority of Education Secretary Miguel Cardona under the HEROES Act to cancel student loan debt and stated that this action violates the doctrine of the main question of the court, which prohibits executive regulatory actions of unclear “economic or political importance”. authorized by Congress.
The only hope for more than 40 million student loan borrowers who are scheduled to receive up to $20,000 in debt relief is that the court refuses to stand in six states and two people suing to block the program. The court’s three liberal justices were clearly opposed to giving the plaintiffs standing, while conservative Justice Amy Coney Barrett seemed deeply skeptical of the state’s arguments.
In questioning the legality of the student loan program, conservative judges first focused on the definition of the words “waive” and “modify” in the 2003 HEROES Act, the law used to authorize the program. The law allows the secretary of education to “eliminate or modify” elements of federal student loan debt during a declared national emergency. Conservatives question whether the program’s cancellation of up to $20,000 in debt exceeds the definition of “waive” or “modify.”
At least one previous court definition of “change” suggested only moderate changes, Chief Justice John Roberts pointed out.
“Perhaps it is good English to say that the French Revolution ‘changed’ the status of the French nobility, but only because of a figure known as understatement and a literary device known as sarcasm,” said Roberts, quoting from an earlier opinion. by the late Justice Antonin Scalia.
“We’re talking about half a trillion dollars and 43 million Americans,” Roberts added. “How does that fit into the normal understanding of ‘transforming?'”
Instead of a waiver or modification, the program amounts to a “grant” that should have gone through the congressional appropriations process, Justice Clarence Thomas supported, referring to the friend-of-the-court brief submitted by the opponent of the program.
Prelogar refuted the question by noting that the HEROES Act authorizes the modification or elimination of elements of federal student loan debt and that debt cancellation is the only exception and modification of the terms of the eligible loan. And because no money is drawn from the Treasury, the program does not violate the Appropriations Clause of the Constitution, he said.
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The conservative justices also directed the program to violate the court’s leading question doctrine. He asked how a large program with a cost of $ 500 billion is not a major question of “substantial economic or political importance.”
“This case presents a serious question — serious enough for the doctrine of the leading question,” Roberts said.
In a world without the central question doctrine, wouldn’t Congress “treat it as a central question?” Justice Samuel Alito asked.
“In colloquial terms, you could say it’s a major policy,” Prelogar replied, but it’s not a “primary question.” As a benefit program and not a regulatory decision, this program does not qualify for the doctrine of the main question of the court, he said.
The prior application of the doctrine of the main question presented regulatory decisions issued by executive agencies with the justification of non-specific congressional authority such as the regulation of greenhouse gas emissions at power plants or the mandate of the COVID-19 vaccine for employees of large companies. The Supreme Court overturned both actions.
“This is not a regulatory authority statement,” Prelogar said. “This is a statement from the benefits program.”
When he took the stand, Prelogar argued that none of the six states could show actual harm or harm caused by the program that would give him standing to sue. The two men’s argument for standing — that they did not benefit from the program and therefore no one else benefited — was deemed “illogical” by Justice Sonia Sotomayor.
Most of the arguments about standing revolved around Missouri’s claim, as it is the only state granted standing in the decision of the court of appeals before the Supreme Court’s argument. The other five states are Arkansas, Iowa, Kansas, Nebraska and South Carolina.
Missouri says its student loan relief plan would hurt the state-created student loan service MOHELA because it has some direct loans that will be forgiven. While MOHELA is a separate corporate entity from the state, Missouri claims it will harm the state because MOHELA is supposed to contribute money to the state’s charitable trust fund.
But as Prelogar and the liberal judges noted, MOHELA is a separate entity from the state of Missouri with its own right to sue and be sued. Missouri created MOHELA to separate its finances from the state and, therefore, any harm to MOHELA’s income or assets would affect MOHELA and not the state.
If MOHELA had brought a suit, they would have sued, Prelogar said, but they didn’t. It would be “absolutely anomalous” for the court to “overrule” Missouri’s decision to separate itself and MOHELA in order to find standing for the state, he added.
Liberal judges clearly took this position when they questioned Nebraska Solicitor James Campbell.
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“Normally we don’t allow one person to step into another’s shoes and say ‘I think that person was harmed’ even if the harm was great,” Justice Elena Kagan said. “We leave it up to people, him or her, to make that decision.”
The liberal judges also focused on the secondary argument that undermining MOHELA’s finances could lead to contributions to the state’s capital fund fund and, thus, harming the state. They pointed out that MOHELA has not contributed to the fund in 15 years, and Justice Ketanji Brown Jackson Campbell admitted that the state has no plans for the fund.
The biggest question about standing, however, came from Barrett. He repeatedly pressed Campbell on why the state brought this suit and not MOHELA. Since the state has jurisdiction over MOHELA, it has the right to sue on its behalf, Campbell said.
“Why doesn’t the state just make MOHELA come?” Barrett objected, noting the attorney general had acknowledged MOHELA would have standing to sue. “If MOHELA is an arm of the state, why don’t you just be a strong MOHELA and say you have to enforce this suit?”
Campbell simply dismissed it as “a question of state politics.”
Barrett was the only conservative justice to openly question plaintiff status. Among other things, Alito openly stated hit is a belief that they deserve to stand. The other four — Roberts, Thomas, Neil Gorsuch and Brett Kavanaugh — have remained silent on the matter.
With at least five conservative justices against the program on the merits, the only hope for the program is Barrett and one other conservative justice join the liberals in refusing to stand. The 40 million plus borrowers who are eligible to pay their debts will just have to wait for the court to decide their fate.