When the Supreme Court heard arguments this week over President Joe Biden’s student loan plan, the justices questioned the definition of the relevant statutory language and whether the plaintiffs had standing to sue, as well as constitutional questions about the separation of powers. These are all typical matters that must be discussed during a court hearing. But conservative justices also spend a lot of time asking questions about a more nebulous subject: justice.
The issue of fairness arose when the argument in Department of Education v. Brown, a case in which two student borrowers challenged the Biden plan because they did not qualify for any or all of the relief offered.
“Because we’re dealing in a case with individual borrowers or would-be borrowers, I think it’s appropriate to consider some of the fair arguments,” Chief Justice John Roberts said.
Roberts then presents a hypothetical scenario involving two high school graduates, who cannot afford college. One took out a loan for college, while the other took out a loan to start a lawn care service. People who go to college, “we know statistically,” Roberts said, “are going to be better off financially throughout their lives than people who don’t.”
“And then the government comes in and tells the person, ‘You don’t have to pay the loan,'” he said. “No one is telling people who are trying to set up a lawn service business that they don’t have to pay off their loans.”
For a court that often pretends to sit above political matters, this is a line of argument that seems purely political. Courts do not judge whether a policy is fair. Indeed, the chief justice admitted that his views on justice were not at issue.
“You might have a view [the] that justice, and it’s not considered,” Roberts told Attorney General Elizabeth Prelogar. “I may have a view of that justice, and I’m not considered.”
Well, why did the supreme judge think about the fairness of the government’s plan?
The answer is that Roberts is trying to focus the political debate on justice into what he calls the court’s “central question” doctrine.
“We would like to usually leave a situation like that, when you’re talking about spending government money, which is taxpayer money, for the people who are responsible for the money, which is Congress,” said Roberts.
“Why isn’t that a factor that should be considered on the main question – where are we looking at things that are more stringent than what we can do when we talk about statutory authority to make sure that this is something that Congress is going to consider?”
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The doctrine of primary inquiry has emerged in recent years as a favorite tool of the court’s conservative majority to squash unpopular executive branch actions. The doctrine states that agency regulations of “broad economic and political importance” must be specifically authorized by Congress.
The doctrine of primary questions, as the high court has now expressed it, “directs courts not to discern the plain meaning of statutes using normal statutory interpretation tools, but to require clear and specific congressional authorization for specific agency policies,” writes Daniel Deacon. and Leah Litman of the University of Michigan Law School in a draft paper on “The New Leading Question Doctrine.”
The Supreme Court applied the doctrine in recent cases striking down the Biden administration’s COVID-19 vaccine mandate for large employers, the pandemic eviction moratorium and, in the 2022 case West Virginia v. Environmental Protection Agency, yet-to-be-proposed regulations limit greenhouse gases. emissions in power plants.
“The EPA claims to find unheralded power representing a transformative expansion of regulatory authority in the vague language of a long-extant, but rarely used, statute designed as a gap-filler,” wrote Roberts in the West Virginia case. “These findings permit the use of regulatory programs that Congress has expressly rejected. Given these circumstances, there is reason to be ‘hesitating before concluding that Congress’ means to grant EPA the authority it claims.
The main issue here is a concern about the separation of powers – that is, Congress is the proper place to enact economic and political regulatory actions. As Roberts said about the potential action of the Biden administration on greenhouse gas emissions, Congress did not implement a proper regulatory scheme in this case.
But student loan forgiveness programs rest on a fairly solid foundation of statutory authority.
The HEROES Act of 2003 allows the secretary of education to “waive” or “modify” the terms of student loans held by the federal government during a declared national emergency. The COVID-19 pandemic is an emergency. And the secretary of education also waived and modified the terms of certain student loans under legislation passed by Congress by granting forgiveness of up to $20,000.
During the argument on whether the doctrine of major questions should apply to student loan relief plans, the conservative justices questioned whether loan forgiveness meets the definition of waiving or modifying, and whether benefit programs amount to regulatory action. Prelogar argued that Congress authorized the secretary of education to waive or modify any or all of the terms of student loans.
Roberts’ injection of the political issue of justice then became a way to expand the doctrine of the main question beyond whether Congress authorized the secretary to forgive some debts. Even if Congress authorizes a waiver or modification of the terms of the loan, isn’t that fair? And isn’t Congress the only body that can judge justice?
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“I don’t see evidence that they take people who try to start a lawn service because they can’t afford college – I don’t see evidence they take into account,” Roberts said in response to Prelogar.
Other conservatives followed suit. Speaking to the attorney general, Justice Samuel Alito demanded to know whether the administration’s education secretary thinks the plan is fair.
“Why is it fair?” Alito asked. “Why is there no answer that says ‘wanted’? Maybe it’s desired, but why?”
“It’s fair to say that without this relief, there is no denying that there are millions of student loan borrowers who will not be able to repay their student loans,” Prelogar replied. “They’re going to be delinquents, and the HEROES Act was designed specifically for that situation. This is Congress telling the secretary, ‘You shouldn’t let that happen.’ “
Justice Brett Kavanaugh said the plan creates “big winners and big losers,” and he speculated that Congress could “try to hear everything about this and factor everything in.”
“Are there factors to consider as to whether to give a broad reading to the exclusion or a narrow reading?” Kavanaugh said.
“No, I don’t think that should factor into how you interpret the statute,” Prelogar replied. “Courts must consider the text on its own terms.”
Prelogar asked the conservative justices to stick to the limitations of the primary question doctrine set forth in prior case history, rather than trying to expand the doctrine to include whether Congress considered the fairness of actions authorized by law.
The doctrine of the main question has criticized is a judicial power grab that allows conservatives to attack executive actions they don’t like without looking back at precedent. All of these lines of questioning in the student loan argument emphasize that criticism.
When presented with a policy inconsistent with the current major question doctrine, conservative justices reached out to expand it.