If the U.S. Supreme Court winds up overturning President Joe Biden’s student debt-relief plan, it will likely do so by invoking a once-obscure legal theory called “the major questions” doctrine. The theory asserts that administrative actions that affect issues of great social importance are invalid unless they are expressly and precisely authorized by Congress.
Like the doctrine of “qualified immunity” that the court often uses to shield police officers from liability in federal civil rights lawsuits, the major questions doctrine is a made-up theory created by the court itself. It is nowhere to be found in the text of either the Constitution or in any federal statute.
The doctrine first appeared in Supreme Court decisions in the 1990s, but has been expanded by the court under the leadership of Chief Justice John Roberts as a cudgel against progressive initiatives undertaken by federal regulatory agencies. In 2021, the Roberts court invoked the doctrine to strike down the Center for Disease Control and Prevention’s moratorium on residential evictions. Last year, it used the same defense to quash the Occupational Safety and Health Administration’s vaccine-or-test mandate for large employers; and the Environmental Protection Agency’s plan to impose an industry-wide carbon-emission cap on power plants.
Biden announced his student debt plan on August 24, delivering on a promise he made during the 2020 presidential campaign. The plan directs the Department of Education to cancel up to $20,000 in federal student debt for Pell Grant recipients and up to $10,000 for non-Pell Grant recipients. Borrowers are eligible if their individual income is less than $125,000, or $250,000 for married couples.
The plan was necessary, according to the White House “fact sheet” that accompanied the President’s announcement, to help alleviate the economic harm caused by the COVID-19 pandemic. Although Biden’s proposal is far less ambitious than the plans offered during the 2020 campaign by Senators Elizabeth Warren of Massachusetts and Bernie Sanders of Vermont, it would bring immediate relief to American students and graduates, many of whom are drowning in debt. According to the Education Data Initiative, 43.5 million student borrowers owe a staggering $1.75 trillion in outstanding loans. Approximately $1.6 trillion of that amount consists of loans issued by the federal government through the Department of Education, with the remainder coming from private sources. An estimated 43.5 million borrowers have federal student loan debt, with an average balance of $37,574.
On February 28, the Supreme Court heard oral arguments in two cases challenging the debt plan. The first, Biden v. Nebraska, was brought by six states with Republican governors and attorneys general. The second, Department of Education v. Brown, was initiated by two student loan borrowers who claim the plan doesn’t go far enough. The students’ case has been funded byThe Job Creators Network, a conservative advocacy group established by Home Depot co-founder Bernie Marcus.
The two cases present identical legal questions, procedurally and substantively. On the procedural side, the issue is whether any of the challengers have “standing” to sue the Administration. Standing refers to the capacity of a party to bring a lawsuit. To establish standing, a party must demonstrate that they have suffered actual harm as a result of a challenged government action.
During the oralarguments conducted in both cases, Solicitor General Elizabeth Prelogar, representing the Administration, asserted that neither the states nor the student borrowers can show they have been injured by the debt-relief program. The students, she argued, would receive no benefits at all if the plan is invalidated. The states, she contended, lacked standing because they could not show a loss of revenue from the proposal.
Although it is sometimes difficult to predict final outcomes from the tenor of oral arguments, it seems a safe bet that the court’s Republican majority will let the state case proceed, even if they opt to dismiss the student case for lack of standing.
On the merits, it appears all but certain that the majority will invalidate the plan under the major questions doctrine. Prelogar argued that the HEROES Act of 2003—a law passed after the September 11 attacks that empowers the Secretary of Education to “modify” student-loan programs in response to a “national emergency”—authorizes the Department of Education to forgive student debt in response to the emergency created by COVID-19.
The Republican justices, however, were quick to counter. Congress “could have . . . referred to loan cancellation [in the HEROES Act] but those [words] are not in the statutory text,” Justice Brett Kavanaugh interjected in a rejoinder to Prelogar in the states’ case, implying that the Administration had overstepped its authority with Biden’s plan.
Amplifying Kavanaugh’s concerns, Justice Clarence Thomas added, “this is a grant of $400 billion, and it runs headlong into” Article I of the U.S. Constitution, which stipulates that only Congress can appropriate money.
As the argument in the states’ case proceeded, it became clear that what really rankled the court’s conservatives was not the way the plan was drafted, but its generosity. “We’re talking about half a trillion dollars and forty-three million Americans,” Chief Justice Roberts remarked at one point, seemingly aghast at the cumulative price tag.
Roberts’ reservations, however, paled in comparison to those voiced by Justice Neil Gorsuch, who characterized the plan as fundamentally unfair to “to people who have paid their loans, people . . . who have planned their lives around not seeking loans and people who are not eligible for loans in the first place and that a half a trillion dollars is being diverted to one group of favored persons over others.”
Much the same could be said of nearly every emergency declaration issued by the federal government. Lines are drawn; some people are singled out for relief while others are not. If fairness is our guide, the remedy in such situations is to assist all in need, not to withdraw assistance for everyone.
Student debt relief, whatever the shortcomings of the Biden plan, enjoys broad popular support, especially among minority populations who are often hit hardest by the burdens of debt. In the meantime, the Supreme Court’s popular approval ratings continue to plummet, and for good reason.
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