Chief Justice John Roberts pounded away on the price tag – “about half a trillion dollars” – for the Biden administration’s student loan forgiveness program during oral arguments Tuesday. But as he repeatedly cited the big cost, he reinforced a broader, more familiar point that could further undercut executive power and enhance the Supreme Court itself.
Roberts was especially active in the center chair, asserting the court’s authority and his own, during a session that lasted three and a half hours. Now in his 18th term, Roberts has sometimes struggled to control his colleagues, the majority of whom reside to his ideological right but these cases afforded him a commanding presence in an area of the law he’s been driving.
The 68-year-old Roberts pressed an emerging “major questions doctrine,” embraced by the right and generally forbidding agency actions on matters of vast economic and political significance without clear authority from Congress.
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.
“Along comes the government and tells that person: You don’t have to pay your loan,” Roberts said of a hypothetical college loan borrower. “Nobody’s telling the person who is trying to set up the lawn service business that he doesn’t have to pay his loan. He still does, even though his tax dollars are going to support the forgiveness of the loan for the college graduate, who’s now going to make a lot more than him over the course of his lifetime.”
The cases tested whether a 2003 statute permitting the secretary of Education to “waive or modify” federal student loans in national emergencies could be used, in the wake of the Covid-19 pandemic, to forgive loans for more than 40 million borrowers. The lawsuits were brought by six Republican-led states and two borrowers who were ineligible for the full relief of up to $20,000 in individual loan forgiveness.
In recent years, the conservative majority has invoked variations on a “major questions doctrine” as it curtailed Biden administration initiatives to prevent the spread of the coronavirus (an eviction moratorium and then emergency vaccination and testing requirements) and to protect air quality through limits on power plant emissions.
Last June, in the power plant emissions decision, which Roberts wrote, the court held that regulations raising “major questions,” such as those around the climate-change crisis, should be permitted only if an agency can “point to clear congressional authorization” for its action.
US Solicitor General Elizabeth Prelogar, defending the Biden program, tried to blunt that approach as she stepped to the lectern.
“Over the past three years, millions of Americans have struggled to pay rent, utilities, food, and many have been unable to pay their debts,” Prelogar said. “Loan forgiveness is a paradigmatic form of debt relief, and the secretary acted within the heartland of his authority and in line with the central purpose of the HEROES Act (of 2003) 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’?”
Later, he was more explicit.
“I think most casual observers would say, if you’re going to give up that much amount of money, if you’re going to 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,” Roberts said. “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.”
Prelogar said that the HEROES Act, officially known as the Higher Education Relief Opportunities for Students Act of 2003, was broadly written to allow the secretary of education to handle a range of emergencies.
“Congress wanted to cover the waterfront and ensure in advance that the secretary had the tools depending on whatever situation he confronted to make sure that student-loan borrowers weren’t going to be left worse off,” she told the justices.
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. Sonia Sotomayor, the senior justice on the left, warned that judges would seize greater power if agency authority to carry out acts of Congress were diminished.
Addressing Nebraska state Solicitor General James Campbell, who argued against the Biden administration, Sotomayor said, “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, we’re going to take it upon ourselves, instead of leaving that decision in the hands of the person who has experience with these questions.”
Such a shift in power among the branches has been highlighted in the past. Last year, in the power plant emissions case, Justice Elena Kagan protested that the relatively recent “major questions” approach usurped the expertise of agencies.
“The Court appoints itself – instead of Congress or the expert agency – the decisionmaker on climate policy,” Kagan wrote in a dissenting opinion. “I cannot think of many things more frightening.”
On Tuesday, Kagan asserted that the HEROES Act was clear regarding the secretary of education’s authority in national emergencies to “waive or modify any statutory or regulatory provision” of student financial assistance.
“Congress didn’t say exactly the circumstances in which it wanted the secretary to use this authority. Of course not.” This was legislation for emergencies, she stressed, adding, “We deal with congressional statutes every day that are really confusing. This one is not.”
A few beats later, Roberts implicitly rejoined with the recent precedent of the conservative supermajority. He pointed to cases in which the court had found that a statute’s provisions covered the authority an agency sought to exercise, but “that given the nature of the authority and its consequences,” those terms were simply “not clear enough.”