Student Loan Debt Relief: How Pittman’s Decision Will Not Imply the Courts’ Major Questions Doctrine in the U.S.

Editor’s Note: Steve Vladeck is a CNN legal analyst and a professor at the University of Texas School of Law. He is the author of the upcoming book “The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic.” The opinions in this commentary are of his own. CNN has more opinion.

The public discourse around the student loan debt relief program, as well as Pittman’s ruling, is a good reminder that not every policy dispute should lead to litigation.

Biden aims to offer up to $20,000 in student loan forgiveness for eligible low and middle income borrowers if they received a Pell grant while in college. The program received 26 million applications before being put on hold.

But for Pittman, the central problem with the program is that its sheer economic size required clearer authorization from Congress than that provided by the 2003 statute on which the executive branch is relying. Invoking the Supreme Court’s new and deeply contested “major questions doctrine,” Pittman’s ruling would, if left intact, make it impossible for the program to be rescued without Congress stepping in.

The program is not legal, so it’s not possible for Brown or Taylor to show how their injuries could be fixed by the courts. Indeed, Pittman’s ruling blocking the program on a nationwide basis provides Brown and Taylor with precisely … nothing.

The standing of the case depends on three elements: That the injury is real and that the courts are able to give some compensation.

Standing is an important doctrine because it is a technical one. As Justice Samuel Alito wrote in a 2007 opinion, “No principle is more fundamental to the judiciary’s proper role in our system of government.”

Basically, the idea is that it’s not the federal courts’ job to answer hypothetical questions or resolve policy disputes. If a party is able to show how they were harmed by the challenged policy in a way that is concrete and specific, they will usually be allowed to challenge it.

If the complaint is just that the government is acting unlawfully in a way that doesn’t affect plaintiffs personally, that’s a matter to be resolved through the political process – not a judicial one. Congress and the chief executive are in charge of preserving the public interest, according to Antonin Scalia 30 years ago.

Instead, objections to the Biden program present the classic kind of “generalized grievance” that the Supreme Court has long held federal courts lack the constitutional authority to resolve – like when a taxpayer tried to sue the CIA in an attempt to force the agency to provide a public accounting of its (allegedly unlawful) expenditures.

For if Justice Alito was right that “no principle is more fundamental to the judiciary’s proper role in our system of government” than the idea that courts can only decide cases that present actual, justiciable controversies between adverse parties, then that principle ought to prevail even against the most strenuous (if not well-taken) objections to the government policy being challenged. Otherwise, the courts aren’t acting as courts; they’re just taking sides in policy debates that no one elected them to resolve.

The Supreme Court on Tuesday heard oral arguments in two challenges to President Joe Biden’s student debt relief plan, with several conservative justices appearing skeptical of the government’s authority to discharge millions of dollars in federally held loans.

The challenge came from two individual borrowers who are not qualified for full debt relief and who claim they were denied an opportunity to comment on the Education Secretary’s decision to provide targeted student loan relief to some.

Major Questions for Student Loans and Covid-19: The Supreme Court’s Benchmark in a High-Sensitivity Case

The justices will consider a dispute brought by a group of states in a different case this term. The court could not say if the two cases would be consolidated.

The program is frozen while legal challenges play out as the court action does not change the state of play. It does, however, add new plaintiffs to the mix.

In the case at hand, Solicitor General Elizabeth Prelogar had urged the justices to lift a block on the program and hear oral arguments this term. They agreed only to the latter request.

“This is the second of two cases in which lower courts have entered nationwide orders blocking the Secretary of Education’s plan to use his statutory authority to provide dept relief to student-loan borrowers affected by the Covid-19 pandemic,” Prelogar argued in court papers.

The biggest point of contention was whether or not the six state objectors have legal standing to challenge the loan forgiveness plan. They have no right to file a suit if they can’t show they’ve suffered a concrete harm.

Up to $20,000 of a borrowers’ debt can be canceled depending on the result of the arguments. How and when the justices rule will also determine when payments on federal student loans will resume after a pandemic-related pause was put in place nearly three years ago.

The administration used the flu as a ruse to mask the true goal of fulfilling the campaign promise to eliminate student loan debt, argued a group of Republican states in Biden v. Nebraska.

The second case was brought by two individuals who did not qualify for full benefits of the forgiveness program and argued the government failed to follow the proper rulemaking process when putting it in place.

The issue of if the GOP states are threatened by the type of harm that is appropriate for a court to intervene was one that brought a large amount of attention. Campbell received questions from justices on both sides of the ideological spectrum about whether the states had reached the procedural threshold.

Roberts pressed the emerging “major questions doctrine,” which is sometimes called the right-wing doctrine and is generally forbidding agency actions on matters of vast economic and political significance without clear authority from Congress.

The doctrine was raised by the chief justice as he told Elizabeth Prelogar that the casepresented important issues about the role of Congress.

Justice Brett Kavanaugh asked Prelogar to compare the dispute with cases in the court’s history where the court ultimately pushed back against government claims that a national emergency justified the aggressive, unilateral action by the executive branch.

In some of those Covid-19 cases, Kavanaugh noted, the court ruled that the agency exceeded its authority, and in others, the action was upheld – particularly when an executive branch action was found to be in the “wheelhouse” of the agency that implemented it.

Justice Neil Gorsuch, meanwhile, asked Nebraska Solicitor General James Campbell, who is representing the red states, a series of questions that seemed aimed at helping the court further flesh out the doctrine.

“I understand the Secretary [of Education] has considerable expertise when it comes to educational affairs,” Gorsuch said. Do we usually assume that every secretary Cabinet member knows something about macroeconomic policy?

The question suggested Gorsuch’s skepticism to the idea that Congress would have given the secretary of education the power – without more explicit language in the statutory – to do the sort of mass student debt cancellation that could affect the larger economy.

Campbell was questioned if the harms of the loan forgiveness program would cause Missouri to lose its standing in the market.

“It’s been set up as an independent corporate entity with the ability to bring suits on its own,” Justice Kagan said. “Usually we don’t allow one person to step into another’s shoes and say, ‘I think that person has suffered a harm,’ even if the harm is very great.”

Later on, Kagan pointed out that the state of Missouri was so disconnected from MOHELA that the state had to file an open-records request to get the records from MOHELA that it needed from the lawsuit.

Student Loan Forfeiture in Missouri: a Case Study of Biden’s Student Loan Expansion After the Phenomenon

Justice Amy ConeyBarrett stood out for asking pointed questions of the GOP states to set her apart from other conservatives, and she could give the court a pickup vote.

“If MOHELA is an arm of the state, why didn’t you just strong-arm MOHELA and say you’ve got to pursue this suit,” Barrett asked Campbell, among several questions she asked him about the states’ standing claims.

She questioned whether the state of Missouri also had filed a lawsuit to make clear the interests of St. Louis.

The Biden administration will need the support of one more justice if the liberals vote to reject the lawsuit because of standing concerns.

“There’s 50 million students who are – who will benefit from this. Who today will struggle. Many don’t have enough money to bail them out after the epidemic. She said they don’t have friends or families who could help them with their payments. Those debtors will suffer in ways others won’t because of the pandemic, she said.

“And what you’re saying is now we’re going to give judges the right to decide how much aid to give them instead of the person with the expertise and the experience, the secretary of education who’s been dealing with educational issues and the problems surrounding student loans,” she said.

Some members of the court leaned into the individual suit by two borrowers who wanted to argue that the program wasn’t fair to them.

People who have already paid off their debts and never took out a student loan are the ones being questioned about Biden’s proposed student loan forgiveness program.

“Why was it fair to the people who didn’t get arguably comparable relief, not maybe that their interests were outweighed by the interests of those who were benefited or they were somehow less deserving of solicitude,” Alito asked.

Student Loan Forgiveness During a National Emergency: The Supreme Court Reached on a Problem That’s Not Happening to Student Borrowers

The 2003 law that created the special provisions for student loan forgiveness during a declared national emergency was acted on by Congress, said Attorney General Elizabeth Prelogar.

That line of questioning also received pushback from some of the court’s liberal members, including Sotomayor, who said at one point that there is an “inherent unfairness in society because we’re not a society of unlimited resources.”

Everybody suffered in the Pandemic, I think the bottom line is that. But different people got different benefits because they qualified under different programs, correct?” Sotomayor said.

Jackson wondered if the same fairness issues would arise with respect to any federal benefit programs.

A handful of Republican-dominated states seemed on the verge of invalidating President Biden’s student loan forgiveness plan at the Supreme Court on Tuesday, with a majority of the court’s conservatives indicating great skepticism.

Congress passed a law after 9/11 to make sure student loan borrowers weren’t hurt in a national emergency. Specifically, the law says that when the president declares such an emergency, the secretary of education has the power to “waive or modify any statutory or regulatory provision” governing student loan programs.

Estimates of the plan’s cost have ranged from $300 billion to $430 billion, but on Tuesday at the Supreme Court, Chief Justice John Roberts went high. He said we had half a trillion dollars in debt and 43 million borrowers. If you’re going to “give up” that much money and “affect the obligations of that many Americans on a subject that’s of great controversy, they would think that’s something for Congress to act on,” he added.

The justice focused on the people who lent them money. Many of them will have to default because they don’t have friends or families who can help them make their payments, she said. If you default you will get much worse hardship on you. You’re going to pay more for things because you can’t get credit. The general population doesn’t suffer from this kind of disease, but that’s about to change.

Conservative Justices Clarence Thomas, Neil Gorsuch and Amy Coney The education secretary has the ability to waive and modify the terms of student loans, but this isn’t the same as wiping the debt off the books.

Justice Ketanji Brown Jackson added that the court should “be concerned about jumping into the political fray unless we are prompted to do so by a lawsuit that is brought by someone who has an actual interest.”

Roberts was very active in his chair, asserting the court’s authority during a session that lasted three and a half hours. Roberts has had to deal with many of his colleagues who reside to his right but these cases gave him a commanding presence in that part of the law.

Student Loan Forgiveness: Is It Fair? Major Questions Doctrine for a Student with a College Loan, or a Professor Who Had a Bad Idea

He also showed an attitude toward basic policy choices, as he questioned the fairness of federal assistance for a student who had taken out a college loan, over someone who’d never had a college opportunity and instead started a lawn care service.

Roberts explained that the government would tell a hypothetical college loan borrower not to pay their loan. Nobody is telling the person who wants to start a lawn service business that he doesn’t need to pay his loan. Even though his tax dollars will support the loan forgiveness for the college graduate, who will make more than him over the course of his lifetime, he still does.

The conservative majority invoked variations of a “major questions doctrine” in order to limit the Biden administration’s initiatives to protect air quality through limits on power plant emissions and prevent the spread of the coronaviruses.

In the power plant emissions decision, the court said that regulations raising major questions, such as those about the climate-change crisis, should only be allowed if an agency can point to congressional authorization for its action.

Millions of Americans have been unable to pay rent, utilities, food, and other debts over the past three years. Loan forgiveness is a paradigmatic form of debt relief and the secretary acted within his authority and in line with the central purpose of the HEROES Act in providing that relief here. To apply the major questions doctrine to override that clear text would deny borrowers critical relief that Congress authorized, and the secretary deemed essential.”

Roberts was skeptical at every turn: “We’re talking about a half-trillion dollars and 43 million Americans. How does that fit under the normal understanding of ‘modifying’?”

Source: https://www.cnn.com/2023/03/01/politics/john-roberts-student-loan-forgiveness-major-questions-doctrine/index.html

The HEROES Act, Education, and the Work of the Department of Education: Conservative Critics of the Recent Major Questions Approach to Public Integrity

Thesecretary of education can handle a wide range of emergencies thanks to the HEROES Act.

She acknowledged the significant costs and major policy at issue, but said, “I think that that applies to any number of actions that the government might take, and especially in the context of a benefits program, where just based on the size of those programs and the numbers of individuals affected, the costs can frequently run into the billions of dollars.”

Prelogar’s arguments were bolstered by the three liberals among the nine. The senior justice on the left warned that judges would seize more power if agency authority to carry out acts of Congress were diminished.

There has been a shift in the power of the branches. Last year, in the power plant emissions case, Justice Elena Kagan protested that the relatively recent “major questions” approach usurped the expertise of agencies.

“Congress didn’t say exactly the circumstances in which it wanted the secretary to use this authority. Absolutely not. She said that the legislation was for emergencies and that they deal with congressional statutes daily. This one is not what it looks like.