The future is looking grim for President Joe Biden’s signature $400 billion student debt forgiveness plan. It seems almost certain that the Supreme Court’s conservative justices will accept the state plaintiffs’ argument that they have standing to challenge the program even though it’s far from obvious how it affects them. On the merits, the justices showed interest in two alternative legal theories of why the debt forgiveness is beyond the president’s power to do without Congress. Regardless of which one the court adopts, the program seems very likely be struck down by a 6-3 vote.
That sounds bad for liberals. But on closer examination, the legal result may not be such a disaster for liberal principles of legal interpretation. Leave aside whether you think that the loan forgiveness is good public policy, a question on which there is room for disagreement, even among progressives. What’s troubling the conservative justices, legally speaking, is the scope of executive power implicated by the president’s unilateral decision to invoke his emergency pandemic powers to spend nearly half a trillion dollars without the approval of Congress.
And liberals should care about this sort of unchecked executive power as much as conservatives do. The president, after all, is not always a Democrat. When President Donald Trump wanted to spend federal dollars on building a border wall with Mexico without congressional approval, liberals, myself included, rightly objected. We do in fact need some clarification from the Supreme Court on the question of unilateral presidential expenditure. And in the student loan case, we might just conceivably get it.
Let’s start with the question of the states’ standing to sue. The liberal justices all questioned whether the court had jurisdictional authority to decide the case given that the states aren’t hurt in a concrete way by the loan forgiveness. This is part of an ongoing debate about state standing in which the conservative justices have expanded states’ ability to object to federal programs, a debate going back at least to the Affordable Care Act.
What’s notable about the positions in this debate is that, for many decades, liberals favored more relaxed standing rules, so that the courts could address a broader range of issues. Conservatives typically favored narrow standing requirements, to keep an activist liberal judiciary from weighing in on too many cases. Today, when it comes to state standing, the positions have flipped, with liberals trying to rein in the conservative activist court.
But in the end, liberals don’t lose too much if state standing continues to be expanded. The idea that the judiciary has the job of addressing illegality and seeing justice done resonates powerfully with the liberal tradition — more powerfully than the idea that technical requirements must be met before the courts can consider an instance of alleged wrongdoing.
As for the substantive issue of whether Biden is authorized to use emergency pandemic powers to forgive student loans, one conservative objection has to do with the text of the relevant statutes. At issue is a law called the Heroes Act, a “national emergency” measure passed after Sept. 11, 2001. Under the law, the secretary of education may, under emergency conditions, “waive or modify any statutory or regulatory provision” having to do with student-loan programs so that borrowers are left not worse off than they otherwise would have been because of the emergency. This is the stated basis for the Biden administration’s action.
Under the theory of textualism, the justices are supposed to look to the words of the statute to see what it means — not to the statute’s purpose. If they were not quite so committed to textualism, the conservative justices could simply say that forgiving $400 billion worth of loans wasn’t what Congress intended when it created the emergency provision. But they didn’t want to go there, because they claim never to care about a statute’s purpose. So the conservative justices were left trying to insist that canceling student debt altogether is not a “waiver” or “modification” under the language of the statute.
That textualist argument against the forgiveness program isn’t that easy to make. To a lawyer, waive “is an extremely broad word,” as Justice Brett Kavanaugh acknowledged. Justice Elena Kagan, a liberal who has in the past flirted with embracing textualism as a theory of statutory interpretation, beat the point home. The upshot is that, if the conservative justices do decide the case on textualist grounds, they will be open to the painful criticism that they have ignored the explicit words of the statute.
That leaves Chief Justice John Roberts’ preferred approach. Roberts would like to deploy a new doctrine, invented in an opinion of his just last year, called the “major questions” doctrine. Briefly, the doctrine says that when the executive undertakes action with “vast economic and political significance” without clear authority from Congress, the courts should take a close look and block the action. As he made clear in the oral argument, Roberts would apply the major questions doctrine to Biden’s loan forgiveness program given its scale and the lack of any direct congressional authorization.
Liberals have criticized the major questions doctrine as a judge-made initiative by the conservative Supreme Court to block liberal regulatory initiatives that would otherwise be permitted under previously existing administrative law. That criticism is fair, to be sure.
Yet it is also true that, if major questions doctrine is used to block the student loan program, that will create a precedent that the president cannot enact expensive, transformative policies without getting congressional approval first. That would have covered Trump’s border wall. It could also, at least in principle, cover other radical initiatives undertaken by future Republican presidents without the consent of Congress.
Neither party is immune to the use of aggressive executive action under emergency authorization. But seen in the light of history, conservative and reactionary regimes are much more likely to take advantage of emergency laws to effectuate major social changes. Losing the loan forgiveness program in the Supreme Court should be seen in the context. It would not be the outcome the Biden administration would have wanted, and it’s bad news for borrowers. But in the end, it might not be a bad thing for the rule of law.
