The 6-3 Republican-appointed majority on the Supreme Court seemed leery on Tuesday about the legality of President Joe Biden‘s student debt relief plan but did not hold back on skepticism as to whether the challengers had the legal grounds to sue the administration.
Biden’s plan, which has approved at least 16 million eligible borrowers to cancel up to $20,000 in debt, has been blocked since the U.S. Court of Appeals for the 8th Circuit issued a temporary injunction in October. The Education Department cited the 2003 Higher Education Relief Opportunities for Students Act to justify the plan, arguing the COVID-19 pandemic constituted a national emergency worthy of relying on the law.
The six Republican-led states that sued, along with two plaintiffs who brought a separate case, argue in large part that the plan circumvents Congress, which has the sole power to form laws related to debt forgiveness. If allowed to go through, the student debt relief plan could cost more than $500 billion.
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In the first case argued, Biden v. Nebraska, a majority of justices appeared to suggest there may be a clear violation of the separation of powers for the president to forgive billions of dollars in student debt unilaterally.
“The case reminds me of the one we had a few years ago under a different administration, where the administration tried acting on its own to cancel the ‘Dreamers’ program. And we blocked that effort,” Chief Justice John Roberts told Justice Department Solicitor General Elizabeth Prelogar, who defended the Biden administration in both arguments on Tuesday.
But the high court’s three liberals, as well as conservative Justice Amy Coney Barrett, joined together in questioning whether states had the legal standing (or the ability to show clear harm) to sue.
A large part of Barrett and the liberals’ questions centered on the loan forgiveness plan’s alleged harm to the Higher Education Loan Authority of the State of Missouri, which is one of America’s largest student loan servicers, and whether it gives Missouri standing to bring its lawsuit. Barrett took serious issue to MOHELA not being a party in the case.
“If MOHELA is an arm of the state, why didn’t you just strong-arm MOHELA and say you’ve got to pursue this suit?” she asked Nebraska Solicitor General James Campbell, who argued for the six states. Campbell said that was a matter of state politics, and liberal Justice Elena Kagan chimed in to say that even to get records from MOHELA, Missouri had to use “the state equivalent of a FOIA request.”
Under pressure from several justices, Campbell responded that Missouri would be harmed if MOHELA lost revenue and couldn’t make its payments owed to the state.
“Both parties, the states in our case, and the private parties in the other case had strong standing arguments,” Campbell told the Washington Examiner in a statement following oral arguments. “The court just needs to get to the merits, and once it gets to the merits, we’re hopeful that a majority of the court will find the program was unauthorized.”
In a separate case heard immediately after Nebraska, J. Michael Connolly represented two plaintiffs challenging the plan, one who did not qualify for any forgiveness and another who didn’t qualify for the maximum relief. He said the Education Department had to provide a notice-and-comment period for debt relief. That case was Department of Education v. Brown.
But several liberal justices, including Sonia Sotomayor, argued, “The HEROES Act specifically says no notice and comment.”
“No negotiated rulemaking, specifically — says there’s going to be an emergency. So we’re waiving those procedural requirements. So, you know, you might think that Congress made a wrong call there. But that’s Congress’s call,” Sotomayor said.
But the conservative justices argued that forgiving vast amounts of debt was “unfair” to the people who had paid off their student debt or those who never had debt to begin with.
“Why was it fair to the people who didn’t get arguably comparable relief, not maybe that their interests were outweighed by the interests of those who were benefited or they were somehow less deserving of solicitude?” conservative Justice Samuel Alito asked.
The so-called major questions doctrine was brought up several times throughout both arguments and has been suggested by numerous legal experts as a potential legal theory the conservative court could use to quash the debt relief plan without digging too far into the weeds on plaintiffs’ issue of standing, which both lawyers had difficulty articulating on Tuesday.
The major questions doctrine was cited in the 6-3 decision that curbed the Environmental Protection Agency’s ability to broadly regulate carbon emissions from power plants. The justices also ruled in 2021 that the Centers for Disease Control and Prevention needed specific congressional authorization to continue its pandemic-justified eviction moratorium.
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After hearing both cases, the justices will cast tentative votes at a private conference in the coming days, and the senior justice in the majority will either assign the majority opinion to a colleague or keep it for themselves.
A decision of such magnitude will likely be released sometime in June. Despite hearing two separate cases, it’s possible the justices will issue a single ruling over both cases.
