The Supreme Court heard two cases Tuesday challenging the Biden administration’s claim that it could use a law meant to provide relief to first responders and military personnel after 9/11 to cancel $430 billion in student loan debt for over 40 million borrowers.
The administration has relied on an emergency-powers law called the HEROES Act, which was passed in response to the Sept. 11, 2001, terrorist attacks. President Joe Biden claims that he can use that law to cancel student loan debt for more than 95% of all borrowers.
At oral argument, the justices and lawyers debated a wide range of questions, but at the core of the sprawling dispute were two questions that arose again and again in different forms: First, does any challenger opposed to what the administration is doing have a right to sue; and, if so, is mass debt cancellation a question that only Congress can decide?
Whether anyone has a right to sue is decided by the legal doctrine called “standing.” That doctrine requires that before a court will hear a case, the plaintiff must have suffered a concrete injury caused by the other party that a court can fix.
In the first case, several states argue that they have standing primarily because if Biden cancels student loan debts, state agencies that the federal government pays to service those loans will lose revenue because they are paid on a per-loan basis. That loss of revenue, in turn, could diminish funds available for scholarships and other education programs meant to benefit citizens of those states.
In response, U.S. Solicitor General Elizabeth Prelogar, representing the Biden administration, argued that those state entities are not really arms of the states that they serve, and thus, the states cannot sue on behalf of the agencies.
The conservative justices seemed largely uninterested in Prelogar’s argument—although Justice Amy Coney Barrett probed both sides about it. But the three liberal justices strongly signaled that they agreed with the government’s argument.
In the second case, two borrowers who did not qualify for debt cancellation argued that by creating this program in secret and pursuant to emergency powers, the administration denied them the procedural right to participate in the decision-making process. In response, Prelogar argued that the law did not require the government to involve anyone in this process.
The liberal justices again strongly signaled their support for Prelogar’s position, and some of the conservative justices seemed more receptive to her counterargument than they did in the first case.
If the court concludes that none of the plaintiffs have standing, then regardless of whether Biden’s plan is unlawful, the court will not block it. On the other hand, if the court concludes that even one of the plaintiffs has standing, it will proceed to decide the merits of the case.
On the merits question, the outcome may depend on how the court interprets the language in the HEROES Act that empowers the secretary of education to “waive or modify” the laws and regulations governing student loans.
Prelogar conceded that the power to cancel debt is not expressly stated in the HEROES Act. Nonetheless, she insisted that the phrase “waive or modify” is broad enough, using the terms separately or jointly, to infer that it gives the secretary the power to cancel student loans.
If the words waive and modify are considered in isolation, that is a possible reading of the statute. But the maxim “Ye shall know them by their fruits” may be useful here. That is to say, the consequences of an interpretation can tell us much about how plausible or faithful to Congress’ intention that interpretation really is.
The Biden administration’s $430 billion plan is about more than just student loan borrowers. It would transform what Congress intended as loans into taxpayer-funded grants—an action never before taken under the HEROES Act.
It would allow the secretary to address by himself a host of economic problems for student borrowers that existed before the COVID-19 pandemic and that cannot be attributed to that emergency. And it would do all this long after the pandemic reached our shores, long after vaccines became widely available, and long after mask mandates and the like were abandoned as unnecessary—in short, long after any real emergency was over.
The Biden administration and the secretary of education constructed this program in secret, without public input, without consulting Congress. Moreover, they designed the cancellation to deprive affected parties of a right to challenge this action in court.
This led Chief Justice John Roberts to observe that in the federal government’s view, neither the public nor Congress had any direct role to play in the creation of this massive benefits program funded entirely by taxpayer funds. And by denying that either party has standing, the federal government sought to deprive the court of any role in reviewing the program for compliance with the HEROES Act or the Constitution.
For these reasons, many of the conservative justices were skeptical of Biden’s plan and seemed to think that this was an issue for Congress, not the administrative bureaucracy, to decide.
As the court stated last June in a case involving overreach by the Environmental Protection Agency, there are “certain extraordinary cases” in which an agency must identify “something more than a merely plausible textual basis for [its] action”; it must “point to clear congressional authorization for the power it claims.”
This approach protects the Constitution’s separation of powers—the foundation of our limited government.
Several justices seemed to think that student debt cancellation is one of those extraordinary cases.
Prelogar conceded that debt cancellation is of enormous political and economic consequence. She could hardly say otherwise. Still, she maintained that this is not one of those extraordinary cases because Congress clearly gave the secretary broad authority through the words “waive or modify.”
That answer only begged the question: What do those words mean here? Congress could give the secretary broad emergency authority without giving him unlimited remedial powers.
In response to these arguments, Prelogar and Justice Elena Kagan argued that the loan cancellation was permissible because the pandemic was an unprecedented emergency. But as the court recognized in two other pandemic emergency cases—one challenging the eviction moratorium and the other challenging the vaccine mandate—if we read old statutes as giving the president and his secretaries every power they deem expedient to address the side effects of major events, then emergencies would rapidly become blank checks granting almost unlimited presidential power.
This possibility concerned Justice Brett Kavanaugh, who noted that some of the Supreme Court’s biggest mistakes were when it deferred to the executive branch during emergencies, and some of the court’s finest moments were when it pushed back despite the declaration of emergency.
The burden of student debts was significant before this case and, sadly, it will remain so no matter how the court rules. Debt cancellation for one set of borrowers is no real solution.
But if the court determines no plaintiff has standing and declines to reach the merits, or if it defers to the secretary of education’s interpretation of the HEROES Act, we will see an ever-growing list of contested social issues addressed unilaterally by the president under the guise of an emergency.
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