How Biden’s student-loan relief plan could survive a Supreme Court setback

This more moderate approach would focus on the scope of the program and the Biden administration’s reasons for it, rather than the question of whether Congress has provided the executive branch with the authority to cancel student loans.

Christopher Walker, a professor at the University of Michigan Law School, said this narrower path was “much more possible than I thought” initially, “based on how the argument went.”

To rule this way would require the judges to make an unsightly, but important distinction — that the debt relief program violates administrative law, but does not go against the HEROES Act, the law passed by Congress in 2003 that the Biden administration says Has the power to enact the executive branch plan.

This law authorizes the Secretary of Education to waive and modify provisions related to student loans during a natural disaster or national emergency to ensure that borrowers are not left worse off. The federal government has argued that means the statute authorizes the education secretary to cancel student loans during the pandemic. Parties challenging the plan say the Biden administration is reading the law too broadly.

Some conservative judges doubted that the words “quit and modify” could be used to mean the cancellation of a debt.

“If the court does not, either for that reason or some other rule that specifically allows HEROES Act debt cancellation, place it into the hands of the administration to again rely on the HEROES Act to cancel any debt.” will absolutely bind,” said David Rubenstein, a professor at Washburn University School of Law.

Still, the judge could also find that the HEROES Act authorizes loan cancellation — or punt on that question entirely — and hold that the Biden administration violated a head of administrative law that requires a The executive agency is required to explain “adequate reasons why it has chosen the policy taking into account relevant facts and alternative paths that it has instead could have been chosen,” Rubenstein said.

If the court rejects the plan on that basis, Rubenstein said, “the agency would then be burdened with providing a satisfactory explanation along the lines of what appears to be the conservatory justice’s theme in oral arguments.”

Conservative judges express concern about fairness

At last week’s hearing, several conservative justices expressed concern about the fairness of the Biden administration’s plan, wondering aloud whether the education secretary considered – or should have considered – its impact on Americans who have access to debt relief. will not be accessible. To address those concerns, the Solicitor General of the United States, Elizabeth Prologer, who was arguing the case on behalf of the Biden administration, tried to nudge the plan back to the Secretary of Education because the agency violated administrative law principles. , instead of eliminating it on the grounds that it is not authorized by the Heroes Act.

An exchange between Prelogger and Justice Neil Gorsuch exemplified this strategy. Gorsuch asked the prologue whether the HEROES Act allows for relief that might actually put some of the relief recipients in a better position. “Let’s say there are two people in Missouri, okay, okay, they’re in better shape, okay. But what if this 90 percent class just hypothetically — could — could the secretary do that under this law?” Can?” They said.

In response, Prologger suggested that if justices were concerned that the program was too broad, they should conduct “arbitrary and arbitrary review” to address that concern. This would mean that the Department of Education violated administrative law by not providing sufficient rationale for the debt relief plan—and for its size and scope—but not by finding that the HEROES Act does not authorize debt cancellation.

“One of the things you want to see is whether there was a way to tailor it, whether there was a way to separate out the people who didn’t really need the relief,” Prologer told Gorsuch.

If the court finds that the party challenging the policy has standing, or right to sue, the likelihood that they rule in this narrow way on the merits is relatively small, Walker said — he puts it at about 10%. Pins at % or 20%. But part of it signals that it could be a possibility, Walker said, adding that “chief justices like to do these incremental first steps.”

Solicitor General’s performance leaves open the possibility of a narrow judgment

Walker cited two cases where Chief Justice John Roberts asked the Trump administration to provide better reasons for larger executive agency policy, but did not say the administration could not pursue them. During oral arguments, Roberts said the student loan issue “reminds me” of one of those cases where the administration tried to act on its own to repeal the Dreamers program, and we blocked that effort.

In response to Roberts’ suspicions that the HEROES Act authorized the executive branch to undertake an initiative that would affect more than 40 million Americans and cost an estimated $400 billion, Prologger asked him to investigate administrative law violations. Reason urged to consider ending the program. , This would represent a similar path to the court’s approach in cases from the Trump administration.

“To the extent that you have concerns about the scope and size of the program,” she said, “then I think the right place to look at those concerns is the arbitrariness and whimsical review. Fair lines have been drawn in formulating the realm, but if you disagree, or if you think they should have taken into account different interests, that would be grounds to overturn them on arbitrary and capricious grounds, not the Heroes distort the plain meaning of the Act.”

Walker said that if the court rules that way, the Biden administration will need to rewrite the rationale for the debt relief plan and perhaps the policy itself to address the court’s concerns. Walker said, although it would take “very little” work for the Department of Education to write a memo with different arguments, the process could still be difficult.

“They have to answer some political questions that they probably don’t want to answer, like we’re not giving you any relief because of X,” he said. And, even after he takes that step, the plan is likely to end up before the Supreme Court — which has been relatively hostile to broad executive action — once again.

“This may be a case of prolonging the inevitable invalidation of the student loan program,” Walker said. “But probably not.”

Walker said Tuesday’s Prologger performance opened up the possibility of this narrow decision still keeping the debt relief program alive on remand, as she very clearly linked the program to the pandemic and the Heroes Act.

“On that front, she stayed on theme the whole time and really delivered this consistent message,” Walker said.

He said applying the principle of leading questions while thinking about the policy and sending the policy back to the education secretary to provide additional arguments “might give the court a little more pause” instead. The major question doctrine is a relatively new legal principle, which the court led by Roberts interpreted to mean that if an executive agency takes action of political or economic importance, it is broad unless Congress expressly authorizes it. does not authorize the policy.

Another legal way to get rid of debt

Still, several conservative justices scrutinized Prologger over the Biden administration’s claim that the court should not apply the leading questions doctrine when considering policy. Even if the court strikes down the loan relief plan on the grounds that the HEROES Act does not authorize loan cancellation, some advocates and legal experts say the Department of Education could still pursue other legal avenues to provide student loan relief. .

“They can use one of the other authorities in the Higher Education Act,” said Luke Herrin, an assistant professor at the University of Alabama School of Law.

That law allows the Department of Education to “compromise, waive, or make any waiver.”