March 1, 2023

Student Loans

“The Supreme Court on Tuesday appeared skeptical of the Biden administration’s student-loan debt-relief program. During nearly three and a half hours of oral arguments, a majority of the justices appeared unconvinced that Congress intended to give the secretary of education the power to adopt the program, which has an estimated price tag of $400 billion.” SCOTUSblog

Here’s our prior coverage of the program. The Flip Side

See past issues

From the Left

The left worries that the Court will strike down the program, and argues that it is authorized by the HEROES Act.

“[The case has] pitted two of the conservative majority’s beloved legal doctrines against one another. The case for striking down President Biden’s program… turns on the court’s recently minted ‘major questions’ doctrine. That doctrine, whose legal provenance is questionable and whose contours are still very much being worked out, holds that for ‘major’ questions of ‘vast economic or political significance,’ the court requires a clear statement of congressional intent…

“[But] The court has [also] insisted on strictly policing the constitutional requirement that the federal judiciary may hear only those cases in which the plaintiff has sustained an ‘injury in fact’ — a concrete, particular harm… None of the states [that sued] seems to have sustained any sort of injury from student loan forgiveness: What’s it to them if the federal government doesn’t want its $20,000 back from any given borrower?”

Harry Litman, Los Angeles Times

The administration “rooted the program in the HEROES Act, which Congress enacted in 2003 to replace a previous statute that granted loan relief to people affected by 9/11. It allowed the education secretary to ‘waive or modify’ student debt held by borrowers affected by any national emergency—not just terrorism. And it expressly let the secretary forgive many, many loans in one fell swoop, rather than ‘case-by-case.’… In 2007, Congress made the act permanent…

“By its plain text, the HEROES Act authorizes Biden’s plan. The law was designed to apply to other crises beyond terrorism. Two presidents have declared COVID to be a national emergency… Even Justice Brett Kavanaugh seemed to agree that the text, by itself, covers this plan. ‘Waive is ‘an extremely broad word,’’ he said to [Nebraska Solicitor General James] Campbell. ‘Why not just read that as written?’… If the Supreme Court truly practiced textualism, this would be an easy case.”

Mark Joseph Stern, Slate

The conservative justices “took turns criticizing [Solicitor General Elizabeth] Prelogar’s position because this loan program benefits student borrowers and not, say, someone who took out a loan to start a lawn care business. The obvious response to this legally irrelevant objection to this program is that, as Justice Kagan pointed out, ‘Congress passed a statute that deals with loan repayment’ for student borrowers, and it didn’t pass a statute that provides loan forgiveness to people who own lawn care businesses.”

Ian Millhiser, Vox

From the Right

The right urges the Court to strike down the program, arguing that it usurps Congress’s power.

The right urges the Court to strike down the program, arguing that it usurps Congress’s power.

“In 2020, Congress authorized for several months the suspension of student loan payments in response to the COVID-19 pandemic. But then and later, it failed to pass legislation that would have broadly forgiven student-loan debt. Over eighty bills were introduced in the previous Congress alone addressing loan repayment and forgiveness, but they failed to pass. In 2021, then–Speaker of the House Nancy Pelosi expressed the widespread view of leaders that the president did not have ‘the power for debt forgiveness.’…

“Regardless, Biden sought a pretext for unilateral debt forgiveness, and he turned to the HEROES Act for that purpose. That is a 2003 law passed in the wake of the September 11 terrorist attacks for the purpose of providing support to members of the military. A provision of the law addressed those directly affected by ‘a war or other military operation or national emergency.’ By any intellectually honest view of context, the term ‘national emergency’ contemplates aiding those who were burdened by military deployments.”

Carrie Severino, Fox News

“Because the loan-forgiveness plan is a matter of ‘vast economic and political significance’—to quote last June’s West Virginia v. EPA ruling, which rejected regulatory authority not found in statutory text—Congress has to have spoken clearly to grant such awesome power… If Biden succeeds in reversing the lower courts, it would set a dangerous precedent for presidential abuse of emergency powers and usurpation of Congress’s power of the purse…

“Indeed, the Court within the last couple of years stayed or invalidated three executive actions based on novel and expansive readings of longstanding laws: OSHA’s ‘vaccine or test’ mandate, the CDC’s eviction moratorium, and the Environmental Protection Agency’s greenhouse-gas-emission restrictions…

“One common theme of these rulings is particularly relevant here: the Court’s justified skepticism of an agency’s suddenly discovering novel and sweeping powers that it had never claimed before. The justices should continue running with that theme.”

Ilya Shapiro, City Journal

“Let’s not kid ourselves. Biden and his team knew full well that this would not pass muster if it got into court. The point of this effort wasn’t to pay off student loan debt; it was to manipulate such debt holders into thinking that Biden was ‘fighting’ for them. It was vote-buying on the cheap, and it arguably worked to some extent in the midterms.”

Ed Morrissey, Hot Air

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