On the last day of February, the Supreme Court will consider the fate of President Joe Biden’s student loan forgiveness plan.
The legal issues are straightforward: A federal law known as the Heroes Act explicitly authorizes the program that Biden announced in the summer of 2022, as the Covid-19 pandemic persisted. Under that program, most borrowers who earned less than $125,000 a year during the pandemic will receive $10,000 in student loan forgiveness. Borrowers who received Pell Grants, a program that serves low-income students, may have up to $20,000 in debt forgiven.
And yet, while this program is clearly authorized by a federal law permitting the secretary of education to “waive or modify” many student loan obligations “as the Secretary deems necessary in connection with a war or other military operation or national emergency,” it is unlikely to survive contact with a Supreme Court dominated by Republican appointees.
The Court will hear two cases challenging this loan forgiveness program, Biden v. Nebraska and Department of Education v. Brown.
The reason why at least one of these lawsuits is likely to end badly for student borrowers is something known as the “major questions doctrine,” a legal doctrine that was largely invented by Republicans on the federal judiciary, and which has no grounding in either constitutional text or in the text of any statute.
In theory, the major questions doctrine provides that, when a federal agency takes an action of “vast ‘economic and political significance,’” it must be authorized to do so by a federal law that very clearly gives the agency the power to do so. Even under this doctrine, however, there is a strong argument that Biden’s student loan forgiveness program is lawful, because the Heroes Act speaks in clear and expansive terms about the education secretary’s power to waive or modify student loan obligations.
But as Justice Elena Kagan wrote in a 2022 dissenting opinion, the major questions doctrine functions as less as a serious inquiry into Congressional intent, and more like a “get-out-of-text-free” card that allows her colleagues to veto federal programs that they wish to invalidate for reasons completely unrelated to what the law actually says.
For this reason, student loan borrowers who were anticipating loan forgiveness should think twice before making any financial decisions that assume this forgiveness will actually happen.
Yes, the program is authorized by a federal statute. But the Court’s GOP-appointed majority has so far invoked the major questions doctrine to strike down at least three Biden administration policies that the Republican Party opposes. And Republicans overwhelmingly oppose this debt forgiveness program.
The student loans forgiveness program is explicitly authorized by an Act of Congress
The Heroes Act was enacted in the wake of the 9/11 attack on the World Trade Center, to ensure that student borrowers who are impacted by a “war or other military operation or national emergency” are “not placed in a worse position financially” because of that emergency.
Although it was initially enacted on a temporary basis in 2003, primarily to benefit victims of the 9/11 attack and military servicemembers who may struggle to pay back their loans if they are called to active duty, Congress made the Heroes Act permanent in 2007. Thus, by making the law permanent, Congress determined that the education secretary should have broad and lasting authority to modify or eliminate student loan obligations in future emergencies.
The Heroes Act does have some important limitations, the most important of which is that the secretary’s power to alter student loan obligations is only triggered when the president declares that a “national emergency” exists, and it only extends to military personnel and other individuals impacted by that emergency. But when such an emergency — like the 9/11 attack or the Covid-19 pandemic — arises, the Heroes Act speaks in sweeping terms about the secretary’s power to alter loan obligations.
Under the statute, “the Secretary is authorized to waive or modify any provision” of the federal laws governing student loans — including the provisions governing borrowers’ obligation to repay their loans, and the provisions governing cancellation of student loans. This power may be exercised “as the Secretary deems necessary in connection with a war or other military operation or national emergency.”
The law also includes several other provisions indicating that Congress wanted the secretary to have a free hand to act when a national emergency arises. Often, for example, when a federal agency wishes to create a new policy, it must undergo a lengthy process known as “notice and comment” before that policy may take effect. But the Heroes Act explicitly permits the education secretary to forego notice and comment when exercising their loan modification and forgiveness powers under the Heroes Act.
The Heroes Act also permits the secretary to forgive loans en masse, rather than requiring the Education Department to individually determine which borrowers are eligible. According to the statute, “the Secretary is not required to exercise the waiver or modification authority under this section on a case-by-case basis.”
And, on top of all of this, the statute explicitly instructs federal courts not to interpret other federal laws to limit the secretary’s authority to alter student loan obligations. The Heroes Act permits the secretary to exercise this authority “notwithstanding any other provision of law, unless enacted with specific reference to” the Heroes Act.
Finally, in case more evidence was needed that Congress specifically intended the secretary of education to have the power to discharge student loans in connection with emergencies like the Covid-19 pandemic, Congress enacted — as part of the 2021 Covid relief law — a provision stating that no one will be taxed on federal student loans that are forgiven between 2021 and 2025. That’s a clear sign that Congress anticipated that the education secretary would exercise their authority to forgive student loans in connection with the Covid pandemic.
Indeed, after this provision passed the Senate, one of its primary champions, Sen. Elizabeth Warren (D-MA) released a statement saying that “this change clears the way for President Biden to use his authority to cancel $50,000 in student debt” (the Biden administration, of course, ultimately decided to only forgive up to $20,000 in student debt).
Given the text of the Heroes Act, as well as the provision governing student loan debt in the 2021 legislation, it is hard to even conceive of an argument rooted in the text of federal law that undercuts Biden’s loan forgiveness program.
The Supreme Court’s Republican majority could nevertheless use its “get-out-of-text-free” card to strike down the debt relief program anyway
The Court plans to hear two lawsuits challenging the student loan forgiveness program: The Nebraska case brought by the red states of Arkansas, Iowa, Kansas, Missouri, Nebraska, and South Carolina; and the Brown case brought by two private individuals.
There is a chance that this Court will dismiss the case because none of these parties have “standing” to bring these lawsuits — to bring a federal case challenging a government policy, a plaintiff must show they were injured in some way by that policy, and it is unclear how anyone is injured if someone else has their debt reduced.
That said, if these two cases are dismissed for lack of standing, that will likely only delay a showdown over the loan forgiveness program. Eventually the program’s opponents are likely to find some institution — perhaps a company that is paid to service student loans — that will be hurt financially by this program and that is willing to file a lawsuit.
Turning to the merits of the two cases, the Brown case borders on frivolousness, and is unlikely to prevail even in this Supreme Court. Its plaintiffs’ primary argument is that the Biden administration erred by failing to complete the notice and comment process before this loan forgiveness program took effect. But, because the Heroes Act explicitly exempts the secretary’s loan forgiveness authority from the notice and comment process, this argument is wholly without merit. It deserves no further discussion.
The Nebraska case, by contrast, has a good chance of prevailing if the Court decides to apply the “major questions doctrine” here. As the Court has described this doctrine, Congress must “speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’” Again, the Heroes Act speaks in expansive terms about the secretary’s power to forgive student loans, but the Court has never fully explained just how clearly a statute must be written to survive review under the major questions doctrine. So the justices could potentially deem to Heroes Act to be insufficiently clear and strike down the loan forgiveness program.
This doctrine, which was invented by the justices themselves, is not mentioned in the Constitution or in any federal statute, and the Court has never tried to claim that it is authorized by any particular law. To the contrary, at a recent appearance at Notre Dame Law School, Justice Brett Kavanaugh — a supporter of the doctrine — claimed that it is “rooted in constitutional values, and also our understanding of how Congress operates.”
Moreover, even a quick look at the Court’s cases applying this judicially-invented doctrine reveals that the Court typically applies the doctrine in a haphazard and unprincipled way, often targeting programs that the Republican Party (or the Court’s Republican appointees) do not like.
On the same day in January of 2022, for example, the Court handed down two decisions concerning Biden administration rules that required certain workers to either receive a Covid vaccine or take regular tests for the disease. In the first of these decisions, National Federation of Independent Business v. Department of Labor, the Court struck down a broad rule that applied to about “84 million Americans.”
Such a rule, a majority of the justices fairly reasonably concluded, involved matters of “vast economic and political significance.”
Yet in the second case, Biden v. Missouri, the Court upheld a vaccination mandate that applied to about 10 million health care workers. The Court made no effort to explain why a rule that impacts 84 million people triggers the major questions doctrine, but a rule that impacts only 10 million people does not. Nor did it explain what would happen if the Biden administration pushed out a vaccination rule that applied to, say, 20 million people. Or 50 million people. Or 83,999,999 people.
Six months later, the Court handed down its decision in West Virginia v. Environmental Protection Agency (2022), which stripped the EPA of much of its authority to fight climate change.
West Virginia involved the Obama administration’s Clean Power Plan, a 2015 policy that set emissions reduction targets that the energy industry was supposed to hit by 2030. But this Clean Power Plan proved to be a nothingburger. It never took effect — the Supreme Court voted along party lines to suspend it in 2016. And, because the dirtiest methods of energy production also are more expensive than cleaner methods, the energy industry wound up meeting the Obama administration’s 2030 goals in 2019 for purely business-related reasons. So it is likely that nothing significant would have changed if the Clean Power Plan had gone into effect.
And yet, in West Virginia, the Supreme Court determined that this irrelevant regulation involved matters of such vast economic or political significance that it must be struck down under the major questions doctrine.
The major questions doctrine, in other words, has no real substance. It largely functions as an excuse that the Court’s GOP-appointed majority can use to toss out agency actions that they do not like.
And so the fate of Biden’s loan forgiveness program will turn on whether at least two Republicans on the Supreme Court decide that they like a controversial program enacted by a Democratic administration. Maybe that will happen, but I wouldn’t bet on it.