Joe Biden has unilaterally canceled $400 billion in student debt. Tomorrow, the Supreme Court will hear oral arguments on whether he has the authority to do that. More than half of congressional Republicans have filed an amicus brief supporting the view that only Congress has the power to cancel student debt, not the president.
The law is not clear on this. The HEROES Act of 2003 grants to the secretary of education the power to waive student debt in the face of an emergency. Biden is claiming that the emergency declaration, on account of the COVID-19 pandemic, triggers that power. The state of Missouri has sued to stop the debt relief because a private company in Missouri, MOHELA, handles student loans and would lose revenue if there are fewer loans to service. However, the company itself has not sued. Also, the amount of debt relief Missouri students would get probably greatly outweighs the loss MOHELA would take, resulting in a net gain for the state.
Another argument the administration will make is technical, but could carry weight if the justices decide to operate in good faith. The argument is that the plaintiffs don't have standing to sue. Under longstanding precedent, you can only sue someone (or the government) if the defendant has harmed you personally. How has giving some people debt relief hurt anyone? Sure, you might have liked some, too, but the relief isn't set up so that if the students didn't get debt relief, someone else would have automatically gotten it. In other words, Joan Q. Student's debt relief did not take money out of Jack F. Student's pocket.
There is a legal concept of the "major questions doctrine," which asserts that federal agencies have too much power and can only do things if Congress has specifically authorized them. In this case, the argument is that only Congress can provide debt relief. However, conservatives want to use this doctrine in a much broader sense. For example, if the EPA wants to ban chemical XYZ as carcinogenic, conservatives believe that the EPA can't do that unless Congress has passed a law banning XYZ by name. This case could be a stalking horse for the major questions doctrine and an attempt to greatly limit what executive agencies can do.
The politics are very clear, however. The people who would benefit from student debt reduction all went to college. Nowadays, people who went to college tend to vote for Democrats, so denying them debt relief sticks it to them. That is the first win. Then there is the matter that most other government loans are not forgiven. For example, if you borrowed money from the Small Business Administration to buy a truck, you have to pay it back. Blue-collar workers who vote Republican may find it unfair that college loans are being forgiven but truck loans are not being forgiven. Thus forgiving college loans but not other loans riles up the GOP base. That is the second win.
However, the latter point is a bit more complicated. During the pandemic, many small businesses got loans to keep the business afloat and many of those were forgiven. Small business owners tend to be Republicans. As far as we can see, the 43 Republican senators who oppose loan forgiveness for Democratic-leaning college attendees haven't complained about loan forgiveness for Republican-leaning small business owners. Yes, the loan circumstances are different, but why is forgiving one kind of loan bad but forgiving a different kind of loan good?
Will the justices' personal experience influence how they vote? Who knows? But we do know that they are aware how student debt can affect one's life. Clarence Thomas once described his student loans as a "crushing weight." His friends told him to declare bankruptcy, but he didn't and paid them off, although it took him 20 years. He is surely thinking: "I did it, so others can, too." Justices John Roberts and Neil Gorsuch don't want their kids to take on crushing loans, so they have tax-free college savings accounts with $600,000 and $300,000, respectively. They are probably thinking: "If you want to go to college, just ask your parents to put half a million, give or take, in a savings account for you." Amy Coney Barrett and Ketanji Brown Jackson also have college savings accounts for their kids, but with smaller amounts in them.
The hearing will probably be heated but a decision is not expected until June. (V)