WASHINGTON — The Supreme Court hears oral arguments Tuesday in two cases to determine whether President Joe Biden can lean on a 2003 law to fulfill a campaign promise and forgive up to $20,000 in student loans for millions of borrowers nationwide.
The justices are set to decide not only if the Biden administration has the power for a program that could cost the government more than $400 billion, but whether the courts should even allow the lawsuits to challenge the program filed by a group of Republican-led states and a group of frustrated borrowers who don’t qualify.
Biden’s program faces a conservative Supreme Court that has been skeptical when agencies appear to overstep the powers Congress gave them, legal experts say. In this case, the Biden administration says Secretary of Education Miguel Cardona can alter student loan terms in emergency situations.
Daniel Urman, a law and public policy professor at Northeastern University, said several conservative members of the court have expressed a general desire to roll back the government’s administrative power.
To move forward with the program, Urman said the Biden administration would have to convince at least two of the six justices on the conservative wing of the court, along with all three of the justices on the liberal wing.
“I could see these cases going in a lot of ways, but I think it is uphill for the Biden administration,” Urman said. “Now uphill doesn’t mean impossible, but I think it is uphill.”
Support for the program largely cuts along party lines, and Congress did not explicitly act on Biden’s call for student loan debt relief. Republican lawmakers in briefs urged the Supreme Court to stop the Biden program, and Senate Majority Leader Charles E. Schumer and other Democratic lawmakers plan to join a rally outside the court to support it.
The justices are expected to issue opinions by the conclusion of the term at the end of June. In the meantime, the Biden administration has continued to pause federal student loan payments for all borrowers, as they have since the start of the coronavirus pandemic.
Authority questioned
The Biden administration seeks to overturn two lower court rulings that paused the program based on challenges that Cardona overstepped his authority when he launched the program last year.
The administration argued in briefs that Congress gave Cardona broad powers when it passed the law in the wake of the Sept. 11, 2001, terrorist attacks, including to address national emergencies like the coronavirus pandemic. Several provisions in the law “underscore Congress’ intent to respond quickly and fully to national emergencies.”
“The lower courts’ orders have erroneously deprived the Secretary of his statutory authority to provide targeted student-loan debt relief to borrowers affected by national emergencies, leaving millions of economically vulnerable borrowers in limbo,” a brief said.
Dozens of advocacy groups, attorneys and several states have weighed in on the administration’s side, calling the forgiveness essential amid the pandemic and well within the secretary’s legal authority.
Urman noted that the statute includes language about the secretary’s authority to “modify” the terms of student financial assistance programs and a waiver from the government’s normal rule-making process — but that may not convince several conservatives on the court.
Justices Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch have a track record of hostility to broad assertions of administrative authority, Urman said. Chief Justice John G. Roberts Jr. also wrote an opinion in West Virginia v. EPA last year that reined in efforts to address greenhouse gas emissions.
“There are these major cases where the Supreme Court has said some version of ‘if Congress really wanted this agency to deal with this issue, they would have said so,’” Urman said.
Major question
A slew of lawsuits challenged the program, but judges rejected most of them because they found the challengers did not have the legal right to file a lawsuit.
The U.S. Court of Appeals for the 8th Circuit found a group of Republican-led states did have the right to pursue a lawsuit and paused the program during that legal fight. And the U.S. Court of Appeals for the 5th Circuit upheld a district court ruling that found frustrated borrowers also had the right to pursue a lawsuit and that the administration overstepped its authority, and then entered an injunction to stop the program nationwide.
Those challengers have embraced the approach the court adopted in the EPA case, known as the “major questions” doctrine. The doctrine requires an agency to point to “clear congressional authorization” for rules on any “major questions” of political and economic significance.
The frustrated borrowers, in a brief, called the forgiveness program a “textbook” major questions doctrine case and said it has “vast economic and political significance, as it would cancel nearly half-a-trillion dollars in debt for tens of millions of individuals.”
And Nebraska and the other states challenging the program argued in their brief that the program steps on Congress’ power of the purse without any clear justification in the law.
A majority of congressional Republicans have backed that approach to the doctrine, among some of the dozens of outside individuals and organizations who have weighed in on the cases.
The Biden administration has argued that the major questions doctrine does not apply to its program, because the authority to discharge debt is part of a federal benefit program — not a regulatory action — and it is central to a 2003 law.
Vaishali Rao, an attorney at the Hinshaw & Culbertson law firm, said the clear language in the statute goes in favor of the Biden administration. But the sheer size of the program makes it likely that the justices will discuss the major questions doctrine during oral arguments.
“There is all kinds of significance, economic and political, to the kind of relief we’re talking about here,” Rao said.
