Conservatives and liberals differed at the Supreme Court on the Biden student loan plan

The Shadow Docket: Laws and Politics of the Supreme Court: Steve Vladeck Comments on the Biden-Biden Decision to Renew Student Loans

Editor’s Note: Steve Vladeck is a CNN legal analyst and a professor at the University of Texas School of Law. The Shadow Docket is an upcoming book by him, where he explores how the Supreme Court uses stealth rulings to Amass power and undermine the republic. The opinions on this commentary are his own. View more opinion at CNN.

A month ago, the Biden administration began notifying people they were approved for student loan relief. The government stopped taking applications for the program due to 26 million people applying before it was frozen. No debt has been canceled thus far.

The program is designed to aid borrowers who are at highest risk of delinquency or default. Once debt cancellation begins, the plan could offer up to $10,000 in student loan debt relief to eligible borrowers making less than $125,000 ($250,000 per household.)

The Biden Program: A First-Principle Case Against Two Justices Whose Litigation Has No Fundamental Laws

The executive branch uses the 2003 statute on which Congress gives the green light for the program, but it doesn’t give them clear authorization for the program’s sheer economic size. If the ruling is left unchanged, it would make it impossible for the program to be rescued without Congress stepping in.

Against that backdrop, Judge Pittman’s holding that the two plaintiffs in his case had standing just doesn’t hold up. The fact that Alexander Taylor and Myra Brown are partially or fully ineligible for the program was tied to their standing. The program itself is not illegal, because they were unable to argue for the more expansive eligibility criteria that they would have been eligible for. That reasoning, such as it is, is especially ironic for two reasons.

In a nutshell, a case’s standing has three elements: That the plaintiff shows an “injury in fact”; that the injury is “fairly traceable” to the defendant’s allegedly wrongful conduct; and that the courts are able to provide at least some redress for their injuries.

Although standing is a technical doctrine, it’s also an important one. The judiciary’s proper role in our system of government is based on no principle more fundamental than the principle of separation of powers.

Basically, the idea is that it’s not the federal courts’ job to answer hypothetical questions or resolve policy disputes. Only if the party can show how they were hurt in a way that is concrete and specific will they be allowed to challenge the policy.

If the complaint is just that the government is acting unlawfully in a way that doesn’t affect plaintiffs personally, that’s a matter to be resolved through the political process – not a judicial one. As Justice Antonin Scalia put it 30 years ago, “vindicating the public interest (including the public interest in Government observance of the Constitution and laws) is the function of Congress and the Chief Executive.”

Instead, objections to the Biden program present the classic kind of “generalized grievance” that the Supreme Court has long held federal courts lack the constitutional authority to resolve – like when a taxpayer tried to sue the CIA in an attempt to force the agency to provide a public accounting of its (allegedly unlawful) expenditures.

For if Justice Alito was right that “no principle is more fundamental to the judiciary’s proper role in our system of government” than the idea that courts can only decide cases that present actual, justiciable controversies between adverse parties, then that principle ought to prevail even against the most strenuous (if not well-taken) objections to the government policy being challenged. Otherwise, the courts aren’t acting as courts; they’re just taking sides in policy debates that no one elected them to resolve.

The US Supreme Court announced on Monday that it will hold arguments in a second case in February concerning President Biden’s student loan forgiveness program, which is currently on hold.

The challenge has been brought by two individual borrowers – Myra Brown and Alexander Taylor – who are not qualified for full debt relief forgiveness and who say they were denied an opportunity to comment on the Education Secretary’s decision to provide targeted student loan debt relief to some.

Major Questions in Education v. Brown and a Group of States Against the Covid-19 Epidemic-Loan Forgiveness

The justices have already announced they will hear arguments in a different case this term, in a dispute brought by a group of states. The court did not say whether it would ultimately consolidate the two cases.

While Monday’s court action does not change the state of play, it does clarify that the program has been frozen while legal challenges play out. It does, however, add new plaintiffs to the mix.

In the case at hand, the justices were urged to hear oral arguments by the Solicitor General, Elizabeth Prelogar. They agreed only to the latter request.

“This is the second of two cases in which lower courts have entered nationwide orders blocking the Secretary of Education’s plan to use his statutory authority to provide dept relief to student-loan borrowers affected by the Covid-19 pandemic,” Prelogar argued in court papers.

If the conservatives decide that the policy is in favor of the challengers, they will have to consider legal questions about how states and individual borrowers should be allowed to go after the program.

Depending on how the arguments go, millions of student loan borrowers could see up to $20,000 of their debt canceled. How and when the justices rule will also determine when payments on federal student loans will resume after a pandemic-related pause was put in place nearly three years ago.

A group of Republican-led states argued the administration overreached by using the Pandemic as a ruse to mask their goal of eliminating student loan debt.

Two individuals who did not qualify for the full benefits of the forgiveness program argued the government failed to follow the proper rulemaking process, which led to the Department of Education v. Brown.

The main issue was whether the GOP states were threatened by the harm that would make it appropriate for a court to intervene. Campbell was asked if the states had overcome the procedural threshold, which is known as “standing”, by justices on both sides of the ideological spectrum.

The “Major Questions Doctrine,” a legal theory embraced by the court’s Republican appointees, states that Congress can be expected to speak with specificity when it grants an agency power.

Chief Justice John Roberts raised the doctrine as he told the US Solicitor General that the case presented very serious issues about the role of Congress.

Some of the greatest moments in court’s history were when the court pushed back against presidential claims of emergency power.

In some of those Covid-19 cases, Kavanaugh noted, the court ruled that the agency exceeded its authority, and in others, the action was upheld – particularly when an executive branch action was found to be in the “wheelhouse” of the agency that implemented it.

Justice Neil Gorsuch, meanwhile, asked Nebraska Solicitor General James Campbell, who is representing the red states, a series of questions that seemed aimed at helping the court further flesh out the doctrine.

The Secretary of Education has a lot of experience when it comes to educational affairs. “But … in terms of macroeconomic policy, do we normally assume that every secretary Cabinet member – as learned as they are – has that kind of knowledge?”

The idea of Congress giving the education secretary the power to cancel student debts without explicit language in the statute was considered to be doubtful by Supreme Court justices.

The states are arguing that Biden’s plan to discharge millions of loans would cause the state of Missouri to lose revenue from its higher education loan authority.

Student-loan-forgiveness-supreme-court-arguments-takeaways: The state of Missouri should not have filed a lawsuit

“It’s been set up as an independent corporate entity that can bring suits on its own,” Justice Kagan said. Even if the harm is very important, we don’t usually allow one person to step into another’s shoes and say they think that person has suffered a harm.

The state of Missouri had to file an open records request in order to get records from the lawsuit, which was related to the state’s inability to get information from MOHELA.

Justice Amy ConeyBarrett is a potential pickup for the court’s three liberal members, as she is the only one who stands out for asking specifically pointed questions of the GOP states.

Campbell was asked several questions about the state’s standing claims and why they didn’t just strong-arm MoHELA.

She also questioned if the state of Missouri had filed a lawsuit to vindicate the interests of the city.

The Biden administration will need one more justice to vote against the lawsuit if Barrett swings to the liberals.


Justices in the Court of Appeal for Student Loan Forgiveness in the Presence of Student Debtors after the 2011-2012 Pandemic

50 million students will benefit from this. Who today will struggle. Many of them don’t have assets sufficient to bail them out after the pandemic. She remarked they don’t have friends or family that can help them make the payments. She said that the poor will suffer in ways that others won’t.

“Congress wanted to cover the waterfront and ensure in advance that the secretary had the tools depending on whatever situation he confronted to make sure that student-loan borrowers weren’t going to be left worse off,” she told the justices.

Some of the court’s conservative members leaned into the individual borrowers claims that they were deprived of a notice-and-comment period to argue that the program wasn’t fair to them.

Those justices peppered Prelogar with questions about whether Biden’s proposed student loan forgiveness program is fair in respect to people who won’t benefit – those who have already paid off their student debt or never took out student loans to begin with, for example.

Alito wondered why people who didn’t get the same relief were not treated the same.

Prelogar replied that in this case, the secretary of education made the necessary findings to justify the loan forgiveness. Without relief for debtors, there will be a “wave of default across the country with all of the negative consequences that has for borrowers,” she said. The Biden plan is a good example of where the executive should be allowed to use their emergency powers.

That line of questioning also received pushback from some of the court’s liberal members, including Sotomayor, who said at one point that there is an “inherent unfairness in society because we’re not a society of unlimited resources.”

“I think the bottom-line answer to be, everybody suffered in the pandemic. But different people got different benefits because they qualified under different programs, correct?” “Soto said.”

Jackson echoed that point, telling Prelogar, “I’m wondering whether or not the same fairness issue would arise with respect to any federal benefit programs.”

Sensitivity to the Cost of Student Loan Forgiveness: Inviting Congress to Adopt a Republican-Dominated Law

A handful of Republican-dominated states seemed on the verge of invalidating President Biden’s student loan forgiveness plan at the Supreme Court on Tuesday, with a majority of the court’s conservatives indicating great skepticism.

The law passed after 9/11 was intended to make sure that student loan borrowers wouldn’t be hurt in a national emergency. Specifically, the law says that when the president declares such an emergency, the secretary of education has the power to “waive or modify any statutory or regulatory provision” governing student loan programs.

Chief Justice John Roberts spoke about the cost of student loan forgiveness during oral arguments Tuesday. But as he repeatedly cited the big cost, he reinforced a broader, more familiar point that could further undercut executive power and enhance the Supreme Court itself.

The justice focused on the borrowers. “Many of them will have to default on their payments, worsening their financial situation, because they don’t have friends or family who can help them make the payments,” she said. The hardship on you is much greater if you default. You’re not going to get credit because you will pay higher prices for things. They are going to suffer from this disease in a way that other people don’t.

Conservative Justices Clarence Thomas, Neil Gorsuch and Amy Coney Barrett countered that a provision that gives the education secretary the power to waive and modify the terms of federal student loans is not the same thing as erasing all or part of those loans, wiping the debt off the books.

If we’re prompted to do so by a lawsuit that is brought by someone who has an interest, then we should be cautious about jumping into the political waters.

Roberts was especially active in the center chair, asserting the court’s authority and his own, during a session that lasted three and a half hours. Now in his 18th term, Roberts has sometimes struggled to control his colleagues, the majority of whom reside to his ideological right but these cases afforded him a commanding presence in an area of the law he’s been driving.

Student loan forgiveness: Major questions doctrine for a student with a college loan and a hypothetical lawn service employee who doesn’t have to pay his loan

He questioned the fairness of federal assistance for a student with a college loan who was also starting a lawn care service while the other didn’t have a college opportunity, in what was seen as a basic policy choice.

“Along comes the government and tells that person: You don’t have to pay your loan,” Roberts said of a hypothetical college loan borrower. “Nobody’s telling the person who is trying to set up the lawn service business that he doesn’t have to pay his loan. He still does, even though his tax dollars are going to support the forgiveness of the loan for the college graduate, who’s now going to make a lot more than him over the course of his lifetime.”

In recent years, the conservative majority has invoked variations on a “major questions doctrine” as it curtailed Biden administration initiatives to prevent the spread of the coronavirus (an eviction moratorium and then emergency vaccination and testing requirements) and to protect air quality through limits on power plant emissions.

The Court has the power to make the decision about climate policy, not Congress or expert agencies, according to a dissenting opinion written by Elena Kagan. I cannot think of a more frightening thing.

millions of Americans have struggled to pay rent, utilities, food and many have been unable to pay their debts in the past three years. “Loan forgiveness is a paradigmatic form of debt relief, and the secretary acted within the heartland of his authority and in line with the central purpose of the HEROES Act (of 2003) in providing that relief here. The major questions doctrine can’t be applied if the text is clear, as it would deny vital relief to the borrowers.

Roberts was not sure if they were talking about a half-trillion dollars or 43 million Americans. How does that fit under the normal understanding of ‘modifying’?”


Justice Elena Kagan: The HEROES Act is clear about the secretary of education’s power to make laws for student financial assistance in national emergencies

On Tuesday, Kagan asserted that the HEROES Act was clear regarding the secretary of education’s authority in national emergencies to “waive or modify any statutory or regulatory provision” of student financial assistance.

She said that she believed that the costs of any actions the government takes are based on the size of the benefits program and the number of individuals affected.

Three liberals were part of Prelogar’s arguments. If the agency’s authority was diminished, the judges would seize more power and that was warned by a senior justice on the left.

There was a shift in power among the branches. Last year, in the power plant emissions case, Justice Elena Kagan protested that the relatively recent “major questions” approach usurped the expertise of agencies.

The secretary is allowed to use this authority in certain circumstances. Of course not.” This was legislation for emergencies, she stressed, adding, “We deal with congressional statutes every day that are really confusing. This one is not.”

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