Is it a good idea for the government to cancel $400 billion in student loans? That is not the question that the Supreme Court confronted on Tuesday, though you could be forgiven for thinking it was. Tuesday’s cases involved not the wisdom of loan relief but its legal merits—and, perhaps more importantly, the plaintiffs’ right to challenge the program in the first place.
Defying predictions of doom for the Biden administration, the arguments went much better than expected, given the court’s 6–3 conservative supermajority. The smart money still says SCOTUS will halt the program, resulting in a scenario in which the court ignores constitutional limitations on its own authority to strike a blow against a Democratic president’s signature policy. But that outcome is less certain than it seemed yesterday.
To understand how the Supreme Court ended up the gatekeeper of $400 billion in debt relief, let’s rewind back to August, when Biden announced the program with Secretary of Education Miguel Cardona. Under the plan, most borrowers qualify for a one-time cancellation of $10,000 in student debt (or $20,000 for Pell Grant recipients) if they earn less than $125,000 a year. Most beneficiaries earn less than $75,000 a year, and they are disproportionately racial minorities. The program was coupled with a plan to restart loan payments, which have been on pause since the start of the pandemic.
Biden and Cardona rooted the program in the HEROES Act, which Congress enacted in 2003 to replace a previous statute that granted loan relief to people affected by 9/11. It allowed the education secretary to “waive or modify” student debt held by borrowers affected by any national emergency—not just terrorism. And it expressly let the secretary forgive many, many loans in one fell swoop, rather than “case-by-case.” Initially set to expire in 2005, the HEROES Act was extended by Congress for another two years. Then, in 2007, Congress made the act permanent.
By its plain text, the HEROES Act authorizes Biden’s plan. The law was designed to apply to other crises beyond terrorism. Two presidents have declared COVID to be a national emergency. The current education secretary clearly thinks that those affected by COVID deserve relief.
If the Supreme Court truly practiced textualism, this would be an easy case. The liberal justices hit this point over and over again on Tuesday. “Congress could not have made this much more clear,” Justice Elena Kagan told Nebraska Solicitor General James Campbell, who argued against the program. “We deal with congressional statutes every day that are really confusing. This one is not.” Even Justice Brett Kavanaugh seemed to agree that the text, by itself, covers this plan. “Waive is “an extremely broad word,” he said to Campbell. “Why not just read that as written?”
But most of the conservative justices have devised a tool to wriggle out from under the text of a law: the “major questions doctrine,” a dubious and ill-defined rule that courts can use to strike down any policy that presents a “major question” if Congress has not authorized it explicitly enough. (How major? Nobody knows.) Chief Justice John Roberts involved the major questions doctrine in an early colloquy with Solicitor General Elizabeth Prelogar, who was there representing the Biden administration to defend the program. He asked Prelogar if she “would recognize at least that this is a case that presents extraordinarily serious, important issues,” requiring the court to look at it “a little more strictly than we might have otherwise to make sure that this was something that Congress would have contemplated.” Kavanaugh connected the doctrine with the notion that courts should look skeptically at policies justified by emergencies, implicitly invoking decisions that upheld Japanese internment and other wartime civil liberties violations as a (questionable) comparison.
“Some of the biggest mistakes in the court’s history were deferring to assertions of executive emergency power,” Kavanaugh told Prelogar. “Some of the finest moments in the court’s history were pushing back against presidential assertions of emergency power.”
These questions on the merits, however, often took a back seat on Tuesday. Front and center, instead, was the threshold problem: the argument for why they were there in the first place. The plaintiffs have struggled mightily to explain why they have standing to sue at all. This doctrine requires plaintiffs to prove three things: a concrete injury, a direct connection between the injury and the government’s action, and a potential form of relief that would redress that injury. Standing is a problem for the plaintiffs because it’s not clear that anyone is actually injured when the government wipes student debt off the books. The government, after all, holds that debt already. (A small subset of loans are held by private institutions, but those are not included in Biden’s plan.) Before the administration announced its plan in August, it had already quietly forgiven tens of billions of dollars in student debt. Nobody except the borrowers appeared to notice or care, because nobody is negatively affected.
Do not think for a second that this fight over standing is merely some kind of technicality. It is the crux of the battle: The modern Supreme Court has transformed standing into a foundational limit on judicial power, at least when Republicans stand to benefit. For decades, conservative justices have deployed this doctrine to defeat progressive litigation. They have relied on standing to kill off lawsuits that would protect the environment, preserve separation of church and state, guard against illegal government surveillance, shield consumers from abusive credit agencies, and so much more. Enforcing the limits to standing is a favored tool of conservatives because it slams the courthouse door on plaintiffs seeking to vindicate civil liberties or public interests.
So much of Tuesday’s arguments boiled down to this: Now that the rules of standing might benefit a Democratic president and 43 million student borrowers, conservatives are ready to toss it out as a concept altogether.
The two cases before the Supreme Court on Tuesday present several dodgy theories of standing. First, in Biden v. Nebraska, Missouri claims it is suing on behalf of MOHELA, a corporation it created that services student loans. MOHELA pays a fixed sum into the state treasury periodically. The state speculates—with zero evidence—that loan relief will hobble MOHELA’s ability to pay that sum.
It’s a fundamental principle that this kind of “speculative chain of possibilities,” backed up with no proof, does not establish standing. Justice Ketanji Brown Jackson hammered this fact, noting, “We don’t know really what the ultimate loss would be to MOHELA.” But there’s an even deeper problem: MOHELA is a separate legal entity from the state, with its own ability to sue and be sued. It is not a party to this litigation. In fact, it has refused to participate in the suit, notifying the government that it is eager to implement loan relief. State officials had to file public records requests just to collect details about its operation. And yet Missouri claims a right to sue on MOHELA’s behalf.
Justice Amy Coney Barrett unexpectedly asked the toughest questions about Missouri’s weak standing argument. “Do you want to address why MOHELA’s not here?” she pointedly asked Campbell, the Nebraska solicitor general. “Why didn’t the state just make MOHELA come?” Campbell, tail between his legs, tacitly admitted that it did not want to be there. Kagan jumped in to remind Campbell that “you couldn’t even get documents from MOHELA without filing the state equivalent of a FOIA request.” It was a rough exchange for a man who waltzed into arguments with every reason to believe the wind was at his back.
The second case, Department of Education v. Brown, went even better for the government. The plaintiffs are two borrowers who are suing because they did not get a chance to submit a public comment on Biden’s plan. They say they’re angry that debt relief was not broad enough to encompass their loans. And so they want the Supreme Court to abolish the entire program.
This theory flunks standing for an obvious reason: The plaintiffs claim that they want more debt relief, yet they are demanding no debt relief for anyone. In standing terms, that means their injury won’t be redressed by the relief they seek, so they have no right to sue. Not a single justice was ready to accept this bizarro theory of standing. As Justice Sonia Sotomayor put it, the plaintiffs “come into court to say ‘I want more’ ” while demanding a decision that ensures they’re “going to get nothing? … This is so totally illogical to me.”
It sure sounds as if Sotomayor, along with Kagan and Jackson, is ready to give the Biden administration a total victory, while Barrett is poised to toss the cases on standing. That leaves the government one vote short. It’s far from clear which justice would provide it. Predictably, Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch appeared ready to shoot down the plan. Like Kavanaugh, Roberts was obviously displeased with Biden’s program, repeatedly suggesting it was not “fair.”
“I think it appropriate to consider some of the fairness arguments,” he said, then spun out a hypothetical about a man who took on debt to start a lawn care service. Why doesn’t he get relief when college graduates do? “We like to usually leave situations of that sort—when you’re talking about spending the government’s money, which is the taxpayers’ money—to the people in charge of the money, which is Congress,” Roberts scolded Prelogar. “Why isn’t that a factor that should enter into our consideration under the major questions doctrine?”
And so, in the end, the chief justice boiled it all down to a policy argument thinly dressed up in the garb of legal doctrine. The blunt truth is that SCOTUS can invalidate Biden’s plan only by shamelessly scrapping everything it has said about standing over the past half century for the one-time purpose of sticking it to Biden. It must, in effect, declare that student debt relief is so unconscionable that, to conquer it, the court must suspend the legal rules that apply to everybody else. Maybe Roberts, Kavanaugh, and Barrett will find the principle to acknowledge that they cannot strike down every policy that offends their sense of how government is supposed to work. But it is not encouraging that the fate of 43 million borrowers rests on 2 of these 3 justices’ mustering enough integrity to uphold a program they despise.
