US Supreme Court doubt over student debt relief looms over Biden agenda
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[March 01, 2023]
By John Kruzel and Andrew Chung
WASHINGTON (Reuters) - The skepticism expressed by conservative U.S.
Supreme Court justices toward President Joe Biden's move to forgive $430
billion in student debt not only cast doubt on the plan's fate but also
signaled trouble ahead for the use of executive power to get things done
in his remaining time in office.
Questions posed by the conservative justices during arguments on Tuesday
over Biden's debt relief indicated that the conservative-majority court
could strike down the plan as an unlawful overreach of executive power.
The conservative justices may apply the exacting legal standard that
they have used to undo prior policy actions by Biden - one that could
stop him from employing executive power to enact other items on his
agenda even as he deals with a divided Congress unlikely to pass
legislation he wants.
Republicans control the House of Representatives while Biden's fellow
Democrats control the Senate.
The court is due to rule by the end of June on the legality of the debt
relief, which the administration argued was lawful under authority given
to the executive branch by the Higher Education Relief Opportunities for
Students Act, or HEROES Act. That 2003 law authorizes the U.S. education
secretary to "waive or modify" student financial assistance during war
or national emergencies, in this case the COVID-19 pandemic.
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"If it (the court) indicates that it doesn't think the HEROES Act
authority extends to loan forgiveness in this context, this would be a
signal that the court intends to constrain future applications of
aggressive statutory interpretation by the Biden or successor
administrations," said Andrew Rudalevige, a professor of government at
Bowdoin College in Maine.
Such an outcome, Rudalevige added, could have serious consequences for
basic governance in Washington.
"If Congress can't or won't step up, and the court won't let presidents
do so, what are we left with? Governance by five justices does not seem
like good government, either," Rudalevige said, referring to the number
of votes needed to win a case at the Supreme Court.
Presidents of both parties have used executive orders and other
unilateral steps when Congress has failed to act as they hoped -
sometimes tiptoeing to the very edge, or perhaps beyond that, of
encroaching on legislative authority.
When Biden was vice president in 2014, then-President Barack Obama
remarked that he could bypass congressional gridlock through his
executive authority, saying, "I've got a pen, and I've got a phone."
Obama did so on immigration and other policies.
Since then, the Supreme Court has moved rightward, particularly since
achieving a 6-3 conservative majority in 2020 with Republican President
Donald Trump's appointment of Justice Amy Coney Barrett.
The court has repeatedly applied to Biden policies the so-called major
questions doctrine, a judicial approach that casts a skeptical eye
toward far-reaching action by federal agencies deemed lacking clear
congressional authorization.
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A sign calling for student loan debt
relief is seen in front of the Supreme Court as the justices are
scheduled to hear oral arguments in two cases involving President
Joe Biden's bid to reinstate his plan to cancel billions of dollars
in student debt in Washington, U.S., February 28, 2023.
REUTERS/Nathan Howard
![](http://archives.lincolndailynews.com/2023/Mar/01/images/ads/current/graue_lda_ENCOREpreowned_020723.jpg)
Its conservative justices already have invoked it to scuttle a
pandemic-era residential eviction moratorium, a COVID-19
vaccination-or-testing mandate for large businesses and federal
limits on carbon emissions from power plants.
'A GOOD LESSON'
Chief Justice John Roberts said during Tuesday's arguments that
policies involving a lot of money and generating a lot of political
controversy might be "something for Congress to act on."
"And if they haven't acted on it, then maybe that's a good lesson to
say for the president or the administrative bureaucracy that maybe
that's not something they should undertake on their own," Roberts
said.
Biden's plan, announced last August, would forgive up to $10,000 in
federal student debt for Americans making under $125,000 who took
out loans to pay for college and other post-secondary education and
$20,000 for recipients of Pell grants awarded to students from
lower-income families.
In some instances, like Biden's unilateral effort to extend the
eviction moratorium, he took executive action following
congressional inaction. The same dynamic was at play when his
administration unveiled the debt forgiveness policy, according to
David Lublin, a professor of government at American University in
Washington.
"The program surely reflects Democratic frustration with being
unable to do this legislatively and the (legal) challenges reflect
Republican desire to challenge Democrats at every turn," Lublin
said. "We are in very polarized times."
Lublin said the impact on Biden's future agenda will depend on how
the court explains when a president's administration exceeds its
authority under a federal statute or the U.S. Constitution.
For example, Lublin said, "If many similar statutes have similar
statutory wording, broad or major administrative action may also
come under challenge."
"Any of this is more likely to have an impact on Democrats because
they are more likely to want to have the government take aggressive
action via spending," Lublin added.
Liberal Justice Ketanji Brown Jackson, a Biden appointee, raised
similar concerns on Tuesday, highlighting a "big-picture" worry
about the court making it too easy for people to sue to stop
government policies they dislike.
![](http://archives.lincolndailynews.com/2023/Mar/01/images/ads/current/ldn_sda_NILA_012823.png)
"I'm concerned that we're going to have a problem in terms of the
federal government's ability to operate," Jackson said.
(Reporting by John Kruzel and Andrew Chung in Washington; Editing by
Will Dunham)
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