- The Washington Times - Tuesday, February 28, 2023

Supreme Court justices expressed skepticism Tuesday over President Biden’s student loan forgiveness plan, with the court’s Republican-appointed members raising questions about fairness and wondering why Congress wasn’t consulted on a $400 billion program.

Justices homed in on what is known as the major questions doctrine, a judicial philosophy that calls for courts to be skeptical of unilateral action by the executive branch on issues that have been debated on Capitol Hill.

The outcome of the case could shape how courts approach other exercises of executive power at a time when presidents — Mr. Biden in particular — are looking for ways to act without getting Congress on board.

“Some of the biggest mistakes in the court’s history were deferring to assertions of executive emergency power. Some of the finest moments in the court’s history were pushing back against presidential assertions of emergency power,” said Justice Brett M. Kavanaugh.

Citing some factors about abuse of presidential power, Chief Justice John G. Roberts Jr. reminded colleagues that they blocked the Trump administration from canceling the DACA program for illegal immigrant “Dreamers.”

“I just wonder, given the posture of the case and given our historic concern about separation of powers, you would recognize at least that this is a case that presents extraordinarily serious important issues about the role of Congress and about the role that we should exercise in scrutinizing that?” the chief justice said. “Significant enough that the major questions doctrine should be implicated?”

Justice Sonia Sotomayor pleaded the case of the borrowers.

“There’s 50 million students who will benefit from this who today will struggle, many of them don’t have assets sufficient to bail them out after the pandemic. They don’t have friends or family or others who can help them make these payments. The evidence is clear that many of them will have to default,” Justice Sotomayor said. “What you’re saying is now we’re going to give judges the right to decide how much aid to give me, instead of the person with the expertise.”

Caving to intense pressure before the midterm elections, the Biden administration announced last year that the federal government would cancel up to $20,000 of student loan debt per borrower. Education Secretary Miguel A. Cardona pointed to provisions in the Heroes Act that allow “waiver or modification” of loans when a national emergency affects borrowers’ ability to repay.

Mr. Cardona said the pandemic was so disastrous that it demanded full forgiveness for millions of students.

“This is a big program, but that’s in direct reaction to the COVID-19 pandemic,” U.S. Solicitor General Elizabeth Prelogar told the justices.

The issue came before the court during arguments in two cases against Mr. Biden’s student debt forgiveness plans.

One case was brought by a group of Republican-led states arguing that the president has no unilateral authority to forgive roughly $400 billion in debt. The other case was brought by two borrowers who said they were left out of the sweeping debt forgiveness plan or were not able to claim all of the benefits.

The crux of the arguments is that the president’s move runs afoul of the Constitution and federal law.

“It is the creation of a brand new program that goes far beyond what Congress intended,” said Nebraska Solicitor General James A. Campbell.

Arkansas, Iowa, Kansas, Missouri and South Carolina have joined Nebraska in the legal challenge.

J. Michael Connolly, who represented the two borrowers, said Congress didn’t intend for the secretary of education to make such a sweeping decision behind closed doors.

Mr. Connolly said his clients should have had a “meaningful voice” under federal law, which requires notice and comment from the public before agency action. He said the Biden administration skirted that step.

Lower courts ruled in favor of the challengers and issued an injunction halting the administration from carrying out any forgiveness.

The case turns largely on whether Congress envisioned debt cancellation when it granted modification or waiver powers.

Justice Elena Kagan said the law seemed expansive enough to embrace Mr. Cardona’s actions.

“We deal with congressional statutes every day that are confusing. This one is not,” she said. “This is very broad language.”

Chief Justice Roberts wondered about “fairness.” He suggested the juxtaposition of two people who graduate from high school and can’t afford college. One takes out loans to go to school, and the other gets a bank loan to start a lawn care business.

“Nobody’s telling the person trying to set up the lawn business he doesn’t have to pay his loan. He still does,” the chief justice said.

He said those sorts of questions may be better left to Congress rather than a single official, the secretary of education.

Justice Sotomayor said Congress made those decisions when it enacted a law affecting student loans but not business loans.

“There’s inherent unfairness in society because we’re not a society of unlimited resources,” she said. “That’s not an issue of fairness. It’s an issue of what the law protects or doesn’t.”

Chief Justice Roberts pointed to the administration’s findings showing that half of borrowers figured they could pay.

“If more than half the people say they don’t need this relief, extending relief to that breadth certainly raises questions,” he said.

Ms. Prelogar said it was impossible to single out borrowers who would struggle and those who wouldn’t.

She challenged the standing of the Republican-led states and the borrowers for filing lawsuits. She said neither party showed a direct injury from the forgiveness.

Those arguments seemed attractive to the court’s three Democratic appointees.

The states argued that the Higher Education Loan Authority of the State of Missouri, known as Mohela, services loan accounts in all 50 states, giving the states a means to launch the legal battle. They said the debt cancellation would harm Mohela by making it unable to meet all of its obligations.

Justice Ketanji Brown Jackson said the state of Missouri and Mohela were “totally disentangled” and noted that Missouri wasn’t a party to the litigation when Mohela was sued in the past. She and Justice Elena Kagan repeatedly noted that Mohela was not in the courtroom.

Ms. Prelogar said 26 million Americans have applied for relief and 16 million have been approved. The relief is on hold while the high court deliberates.

Decisions in the cases are expected by the end of June.

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

• Alex Swoyer can be reached at aswoyer@washingtontimes.com.

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