Sergio Ibarra
Associate Editor
Loyola University Chicago School of Law, J.D. 2024
Last week, the Supreme Court began hearing oral arguments regarding President Biden’s $400 billion debt relief program. Two cases will be up before the Court that challenge President Biden’s Federal regulatory authority. The program aims to forgive $10,000 in student debt for borrowers earning less than $125,000 per year, while Pell grant recipients will be entitled to an additional $10,000 in debt forgiveness.
Legal authority under The Heroes Act
President Biden is exercising his legal authority to forgive federal student loan debt through the Department of Education. In an August 2022 memo to the White House General Counsel, Secretary of Education, Miguel Cardona, outlines his legal authority to forgive the debt under the 2003 Heroes Act. The Heroes Act passed during the aftermath of the 9/11 attacks, grants(granting) the Secretary of Education authority to modify student loan payments in response to a national emergency. The act is meant to ensure that affected individuals who have received student financial assistance are not placed in a worse position financially due to their status as borrowers.
With the U.S. reinstating monthly student debt relief payments later this year, Cardona is arguing that after 3 years of suspended debt payments, a return to making payments will place many borrowers in a worse financial position. Cardona continues by asserting that debt forgiveness is a tool within his authority. Cardona is not the first Secretary of Education to use their authority to modify the terms of student loan payments under the Heroes Act. President Trump’s Secretary of Education, Betsy Devos, initially suspended student debt payments in March 2020 as a response to the Covid-19 pandemic. Cardona’s legal authority to forgive student debt is supported by the Office of Legal Counsel and the Department of Justice. Both departments issued separate legal memos supporting Cardona’s legal authority under the Heroes Act.
The cases before The Supreme Court
There are two separate challenges to Biden’s debt forgiveness plan. The first lawsuit comes from two students who are ineligible for the debt relief program. The students contend that President Biden did not go through the proper process in enacting the plan. One student argues that the debt forgiveness will not help students whose debts are privately held. While the other student argues that the plan is improper because they will only receive $10,000 in relief, not the additional $10,000 available to Pell grant recipients. Texas Judge Mark Pittman, ruled in favor of the students and held that the debt forgiveness program did not have clear authorization from Congress.
The other lawsuit comes from six states, Arkansas, Iowa, Kansas, Missouri, Nebraska, and South Carolina. The states argue they will face financial losses as a result of the debt forgiveness plan. The states argue the debt cancellation plan will encourage borrowers holding Federal Family Education Loans (FFEL) to consolidate their debt under a federal loan management. State agencies are responsible for servicing FFEL loans and therefore argue that they will be financially burdened by the debt forgiveness plan. The Eighth Circuit agreed and issued an order pausing the plan from taking effect. The Eighth Circuit holding mirrors Pittman’s ruling, by citing the Biden administration’s lack of Congressional authority to implement this plan.
Supreme Court review
In order for Biden’s Debt Forgiveness plan to go into effect, the cases must pass the new Major Questions doctrine. The Major Questions doctrine was first implemented in a Supreme Court opinion in 2022. In 2022, the Supreme Court The Major Questions doctrine holds that when regulatory agencies act in ways that concern issues of “vast economic and political significance” there must be a clear authorization from Congress for their actions. Where there is vague or ambiguous language it is unlikely that Congress would have authorized such actions. The doctrine is rooted in conservative values and constitutional originalism. Justices Gorsuch and Kavanaugh have each been defenders of the doctrine. While Justice Kagan views the doctrines as a tool to prevent “federal agencies from doing important work”.
Conclusions
If the Court decides to apply the Major Questions doctrine, the 6-3 conservative majority will likely strike down President Biden’s debt forgiveness plan. The 2003 Heroes Act is vague and ambiguious regarding the extent of legal authority given to the Secretary of Education. President Biden’s plan is novel and not something that Congress would have likely considered at the time the 2003 act was passed. The $400 billion dollar price tag will also be seen as an action “ of great economic and political consequence”.
The Court will likely issue an injunction and send the issue back to Congress for reconsideration. The debt forgiveness issue has already stalled in Congress before and after losing the House of Representatives in the midterm elections, it is even less likely that President Biden will be able to move a debt forgiveness plan through Congress. Although the Major Questions doctrine is aimed at discouraging agencies from exceeding their regulatory authority, the doctrine’s own vague and ambiguous implementation raises numerous questions regarding its impact on federal regulatory authority.
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Link to relevant case