The Supreme Court showdown over Biden’s student debt relief program, in Department of Education v. Brown

On the last day of February, the Supreme Court will consider the fate of President Joe Biden’s student loan forgiveness plan.

The legal issue is immediate: The federal law known as the Heroes Act clearly authorizes the program announced by Biden in the summer of 2022, as the Covid-19 pandemic persists. Under the program, most borrowers who earn less than $125,000 a year during the pandemic will receive $10,000 in student loan forgiveness. Borrowers who receive Pell Grants, a program that serves low-income students, may owe up to $20,000.

However, while this program is clearly provided by federal law that allows the secretary of education to “eliminate or modify” many student loan obligations “as the Secretary deems necessary in connection with war or other military operations or national emergencies,” it cannot survive contact with the Supreme Court dominated by Republican appointees.

The court will hear two cases challenging this loan forgiveness program, Biden v. Nebraska and Department of Education v. Brown.

The reason why at least one of these lawsuits is likely to end in favor of student borrowers is what is known as the “primary question doctrine,” a legal doctrine largely invented by Republicans in the federal courts, and which has no basis in the constitution. text or in the text of any statute.

In theory, the primary question doctrine provides that, when a federal agency takes action of “economic and political interest,'” it must be authorized by a federal law that clearly grants the agency power. . Even under this doctrine, there is a strong argument that Biden’s student loan forgiveness program is legal, because the Heroes Act speaks clearly and expansively about the power of the secretary of education to deny or modify student loan obligations.

But as Justice Elena Kagan wrote in a dissenting opinion in 2022, the primary question doctrine functions less as a serious inquiry into Congressional intent, and more like an “exit-exit-text” card that allows colleagues to veto the federal government. program that you want to cancel for reasons that have nothing to do with the right law.

Therefore, student loan borrowers who are expecting debt forgiveness should think twice before making financial decisions that assume that forgiveness will happen.

Yes, the program is mandated by federal statute. But the Court’s GOP-appointed majority has so far invoked the primary question doctrine to attack at least three Biden administration policies that Republicans oppose. And Republicans strongly oppose this debt forgiveness program.

The student loan forgiveness program is expressly authorized by an Act of Congress

The Heroes Act was enacted after 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 placed in a worse position financially” because of the emergency.

Although it was initially enacted temporarily in 2003, primarily to benefit victims of the 9/11 attacks and military members who may struggle to pay their debts if called to active duty, Congress made the Veterans Act permanent in 2007. Thus, by making the law 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 change student loan obligations is only triggered when the president declares a “national emergency” exists, and only applies to military personnel and other affected individuals. by the emergency. But when such an emergency — like the 9/11 attacks or the Covid-19 pandemic — arises, the Heroes Act speaks volumes about the secretary’s power to change loan obligations.

Under the statute, “the Secretary has the authority to waive or modify any provision” of federal law governing student loans — including provisions governing borrowers’ obligations to repay loans, and provisions governing student loan cancellations. This power may be exercised “as the Secretary deems necessary in connection with war or other military operations or national emergency.”

The act also included several other provisions indicating that Congress wanted the secretary to have a free hand to act during 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 withhold notice and comment when exercising loan modification and forgiveness powers under the Heroes Act.

The Heroes Act also allows the secretary to forgive debts a lot, rather than requiring the Department of Education to determine which individuals are eligible borrowers. According to the statute, “The Secretary is not required to exercise waiver or modification authority under this section on a case-by-case basis.”

And, on top of all this, 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 applicable by specific reference” to the Heroes Act.

Finally, if more evidence is needed that Congress specifically intended the secretary of education to have the power to pay student loans related to emergency situations like the Covid-19 pandemic, Congress created – as part of the 2021 Covid relief law – a provision that states. that nothing will be taxed for federal student loan forgiveness between 2021 and 2025. This is a clear sign that Congress expects that the secretary of education will use the authority to forgive student loans related to the Covid pandemic.

Indeed, after this provision passed the Senate, one of the main champions, Senator Elizabeth Warren (D-MA) published a statement that “this change clears the way for President Biden to use the authority to cancel $50,000 in student loans” (the Biden administration, of course , ultimately decided to only forgive student loans up to $20,000).

Given the text of the Heroes Act, as well as the provisions governing student loan debt in the 2021 legislation, it is difficult to even think of an argument based on the text of the federal law that undermines the Biden loan forgiveness program.

The Supreme Court’s Republican majority could still use the “get-out-text-free” card to eliminate debt relief programs.

The court plans to hear two lawsuits challenging the student loan forgiveness program: The Nebraska cases brought by the red states of Arkansas, Iowa, Kansas, Missouri, Nebraska, and South Carolina; with chocolate a case brought by two individuals.

There is a possibility that this Court will dismiss the case because neither party has “standing” to bring the lawsuit – to bring a federal case challenging a government policy, the plaintiff must show that they were harmed in that way, and it is not clear how the person was injured if the person others have reduced debt.

That said, if both cases are dismissed for lack of standing, it will likely only delay the show on the debt forgiveness program. Finally, opponents of the program may find some institutions — perhaps companies paid to pay off student loans — that will be financially harmed by this program and that are willing to file lawsuits.

Turning the merits of the two cases, the chocolate the case borders on frivolousness, and is unlikely to win even in the Supreme Court. The plaintiffs’ main argument is that the Biden administration erred in failing to complete the notice and comment process before the debt forgiveness program took effect. However, because the Heroes Act explicitly exempts the secretary’s debt forgiveness authority from the notice and comment process, this argument is without merit. It deserves no further discussion.

At Nebraska case, by contrast, has a good chance to prevail if the Court decides to apply the “main doctrinal question” here. As the Court has explained this doctrine, Congress must “speak clearly if it wishes to determine the decision of the agency of the wide ‘economic and political significance. but the Court has never fully explained just how clearly the statute must be written to survive review according to the doctrine of the main question. So the judge may also deemed the Heroes Act insufficiently clear and eliminated the debt forgiveness program.

This doctrine, invented by the judges themselves, is not mentioned in the Constitution or in any federal statute, and the Court has never tried to claim that it is authorized by any particular law. On the contrary, 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 also in our understanding of the way Congress works.”

Moreover, even a quick look at the Court’s cases applying this judicially created doctrine shows that the Court usually applies the doctrine in a haphazard and unprincipled way, often targeting programs that the Republican Party (or Republican Court appointees) do not like.

On the same day in January 2022, for example, the Court handed down two rulings on the Biden administration’s rule requiring certain workers to receive a Covid vaccine or take routine tests for the disease. In this first decision, National Federation of Independent Business v Department of LaborThe court struck down a general rule that applied to “84 million Americans”.

That rule, the majority of justices reasonably concluded, involved matters of “economic and political importance.”

But in the second case, Biden is running against Missouri, the court upheld the vaccination mandate that applies to about 10 million healthcare workers. The Court did not attempt to explain why a rule affecting 84 million people could trigger the central question doctrine, but a rule affecting only 10 million people would not. It also does not explain what would happen if the Biden administration rejects the vaccination rules that apply to, say, 20 million people. Or 50 million people. Or 83,999,999 people.

Six months later, the Court handed down its decision West Virginia v. Environmental Protection Agency (2022), which removes the EPA’s authority to fight climate change.

West Virginia involved in the Obama administration’s Clean Power Plan, a 2015 policy that set emission reduction targets that the energy industry expected to meet by 2030. But this Clean Power Plan proved to be a nothingburger. It never took effect – the Supreme Court voted across party lines to suspend it in 2016. And, because the dirtiest methods of energy production are also more expensive than cleaner methods, the energy industry achieved the Obama administration’s 2030 goals in 2019 in a clean sweep. business related reasons. So, there will be no significant changes once the Clean Power Plan has been implemented.

And yet, the West VirginiaThe Supreme Court has determined that these unrelated statutes involve substantial economic or political matters that must be dealt with under the central question doctrine.

The main question doctrine, in other words, has no real substance. Most functions as an excuse that the majority of GOP appointees of the Court can use to throw out actions of agencies they do not like.

So the fate of Biden’s loan forgiveness program will turn on whether at least two Republicans on the Supreme Court decide they are in favor of the controversial program implemented by the Democratic administration. Maybe that will happen, but I will not bet on it.