A majority on the
Supreme Court
appeared highly skeptical of the legality of President
Joe Biden
‘s student debt relief plan, prompting justices to fixate on the high cost, at
least $400 billion
, and examples of past decisions in which the court struck down executive actions.
Chief Justice
John Roberts
, who is more centrist among the six Republican-appointed justices, zeroed in on the large price tag during the first of two legal challenges Tuesday, saying, “We’re talking about half a trillion dollars and 43 million Americans.”
“Congress shouldn’t have been surprised when half a trillion dollars is wiped off the books?” Roberts asked Justice Department Solicitor General Elizabeth Prelogar, who was defending the plan.
Justice Brett Kavanaugh, one of three appointees of former President Donald Trump, later mentioned that limits of executive power was a recurring topic during his contentious 2018 confirmation hearings. He pointed to an amicus brief from Fordham Law School professor Jed Handelsman Shugerman, who wrote Biden’s plan was a “case study” for how the executive branch abuses emergency powers.
KAVANAUGH SAYS SUPREME COURT’S ‘FINEST MOMENTS’ ARE BLOCKING PRESIDENTS IN OMINOUS SIGN FOR BIDEN
“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, and that’s continued not just in the Korean War but post-9/11, in some of the cases there,” Kavanaugh said.
Kavanaugh appeared to reference the 6-3 ruling in 1952 against President Harry Truman’s bid to seize steel mills, a landmark ruling against overly broad executive authority. Although the justice did not provide examples for “mistakes,” the Supreme Court was responsible in part for enabling the wartime internment of U.S. citizens of Japanese descent in the 1944 case Korematsu v. United States, which became known as a bleak mark in U.S. history.
Kavanaugh’s example referenced an executive action taken during a wartime scenario. The Department of Education has relied on the 2003 HEROES Act to justify its loan forgiveness plan, a law that was enacted to “waive or modify any requirement or regulation applicable to the student financial assistance” during wartime or national emergencies. The administration contends financial hardships caused by the COVID-19 pandemic constituted a national emergency worthy of relying on the law.
In more modern times, the Supreme Court delivered a blow to the Bush administration in 2006 with its 5-4 decision against a military commissions system to try detainees at Guantanamo Bay, ruling that they were unauthorized by federal statute.
Roberts also
offered
an example Tuesday about the
Trump administration
“acting on its own” to cancel the Deferred Action for Childhood Arrivals program, saying, “We blocked that effort” in 2020.
Biden also faced setbacks from the court post-2020 after a majority discontinued the Centers for Disease Control and Prevention’s eviction moratorium that began under Trump at the start of the pandemic and a separate ruling against the Biden administration’s efforts to impose a vaccine-or-test requirement for large businesses.
Biden’s plan, announced last August, would forgive up to $10,000 in federal student debt for U.S. borrowers making under $125,000 who took out loans to pay for college and $20,000 for recipients of Pell Grants awarded to students from lower-income families.
Case Western Reserve University School of Law professor Jonathan Adler told the Washington Examiner that as the executive branch has become “more aggressive” in repurposing existing statutory authority to address new problems, the court in turn has implemented more aggressive scrutiny on those actions.
But Adler noted there is a delicate needle to thread to avoid upsetting the precedent behind judicial review. “While the justices are concerned about not exceeding the scope of their own jurisdiction, they are also concerned about executive branch efforts to circumvent the traditional checks on agency power,” Adler said.
Although the conservative majority appeared sharply critical of the merits in the case and questioned Biden’s ability to enact his costly plan, three liberal justices and conservative Justice Amy Coney Barrett raised questions about whether the plaintiffs had standing to bring the case.
Several law professors told the Washington Examiner that of the two arguments presented on Tuesday, the lawsuit involving six states that sued the administration and said they would reap economic damage posed a stronger possibility of achieving legal standing, or the ability to show Biden’s plan would inflict harm. Law professors were apprehensive to say two plaintiffs who sued because they didn’t qualify for all or part of the loan relief plan presented a strong argument for standing.
Liberal Justice Ketanji Brown Jackson, a Biden appointee, raised similar concerns on Tuesday, highlighting a “big-picture” concern about the court opening Pandora’s box for people to sue to stop government policies they dislike.
“I’m concerned that we’re going to have a problem in terms of the federal government’s ability to operate,” Jackson said.
Jonathan Entin, who also teaches law at Case Western, said he believes the states also posed weak arguments for standing, referencing Missouri’s claims that a student loan entity in the state might fail to make payments into the state treasury if Biden’s plan is permitted.
“An injury must be concrete, not speculative. The Supreme Court has repeatedly held that speculative injuries are insufficient to confer standing,” Entin said, noting that the justices might “find a way to say that the states’ alleged injury is sufficiently concrete to support standing” because a majority seems to believe the loan cancellation exceeds Biden’s authority.
Ilya Somin, a law professor at George Mason University,
said
the oral arguments suggested the majority was skeptical of using the HEROES Act, in part because the ability to “waive or modify” student loan conditions does not include large-scale cancellation of debt principal.
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Somin, who was
critical
of Trump threatening to use emergency powers if Congress did not fund his southern border wall project, added that there’s a heavy burden of proof to show 40 million possible beneficiaries of Biden’s plan are “in a worse position financially in relation to” their loan obligations as a result of the pandemic.
“What they’re doing is they’re giving [relief] to many millions of people where there’s no proof that they even were actually left worse off with respect to paying off their debt by the pandemic at all,” said Somin, suggesting the administration might have had better luck with the program if it provided “some loan forgiveness to people who had long spells of unemployment or suffered serious illness as a result of COVID.”
