As the Supreme Court heard arguments this week on President Joe Biden’s student loan debt relief plan, the justices asked about defining the relevant statutory language and whether plaintiffs have standing to sue, as well as related constitutional issues separation of powers. These are all typical issues that need to be discussed during judicial review. But conservative justices also spent a lot of time wondering about a more nebulous subject: fairness.
The issue of fairness came up during discussions in Department of Education v. Brown, a case in which two individual student borrowers challenged the Biden plan because they did not qualify for any or all of the waivers offered.
“Since we are dealing with individual borrowers or potential borrowers, I think it is appropriate to consider some of the arguments of equity,” said Chief Justice John Roberts.
Roberts then presented a hypothetical scenario involving two high school students, neither of whom can afford college. One is taking out a loan to go to college, while the other is getting a loan to start a lawn care business. The college student, “we know statistically,” Roberts said, “is going to do a lot better financially over a lifetime than the person without.”
“And then the government comes along and tells that person, ‘You don’t have to pay your loan,'” he said. “No one is telling that person who is trying to start a lawn service business that they don’t have to pay the loan.”
For a court that often claims to be above the political fray, this is a line of argument that seems purely political. The court does not judge whether the policies are correct. In fact, the Chief Justice admitted that his opinion of fairness did not matter.
“You may have opinions about [the] fairness and it doesn’t matter,” Roberts told Attorney General Elizabeth Prelogar. “I may have opinions about the fairness of this, and mine doesn’t matter.”
So why is the Chief Justice questioning the fairness of the government’s plan?
The answer is that Roberts was trying to integrate the political debate about fairness into what is known as the court’s “main questions” doctrine.
“Typically, we’d like to leave situations like this where you’re talking about spending government money, which is taxpayer money, to the people who manage the money, which is Congress,” Roberts said.
“Why isn’t that a factor that should be taken into account in our core issues – where we look at things a little more rigorously than we might otherwise when we’re talking about giving legal authority to make sure it’s something that would do congress? I thought?”
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The big question doctrine has emerged in recent years as a favorite tool of the court’s conservative majority to overturn executive actions they don’t like. The doctrine states that agency regulations of “broad economic and political significance” must be specifically authorized by Congress.
The grand demand doctrine, as currently stated by the high court, “directs courts not to discern the plain meaning of a statute using the usual tools of statutory interpretation, but to look to Congress’s explicit and specific authorization for particular agency policies,” he writes Daniel Deacon. . and Leah Litman of the University of Michigan Law School in a draft paper on “The New Major Questions Doctrine.”
The Supreme Court has applied the doctrine in recent cases overturning the Biden administration’s COVID-19 vaccine mandate for large employers, the pandemic eviction moratorium, and, in West Virginia v. Environmental Protection Agency, still pending regulatory proposals to limit of greenhouse gases. emissions from power plants.
“EPA said it unveiled an unannounced power that represents a transformative expansion of its regulatory authority in the vague language of a longstanding but rarely used statute designed as a gap-filler,” Roberts wrote in the West Virginia case. “This discovery allowed him to implement a regulatory agenda that Congress has conspicuously refused to implement. Given these circumstances, there is every reason to “hesitate before concluding that Congress” intended to grant EPA the authority it claims.
The key issue here is separation of powers, which means Congress is the place to take economically and politically significant regulatory action. As Roberts said of the Biden administration’s potential actions on greenhouse gas emissions, Congress hasn’t passed the exact regulatory framework in this case.
But the student loan forgiveness program rests on a pretty solid foundation in legal law.
The HEROES Act of 2003 allows the Secretary of Education to “waive” or “change” the terms of student loans held by the federal government during a declared national emergency. The COVID-19 pandemic is one such emergency. And the education secretary has given up and changed the terms of some student loans under the law passed by Congress, offering up to $20,000 in forgiveness.
During the debate over the application of the underlying issue doctrine to the student loan forgiveness plan, the conservative justice questioned whether debt forgiveness fits the definition of waiver or modification and whether a benefit program is the same as a regulatory action. Prelogar argued that Congress gave the education secretary the authority to waive or modify some or all of the student loan terms.
Roberts’ injection of the political issue of equity then came as a way to expand the principal issues doctrine beyond simply authorizing Congress the Secretary to forgive certain loans. Even if Congress had authorized the waiver or modification of the terms of the loan, have you considered whether it would have been right to do so? And wouldn’t Congress be the only body capable of judging fairness?
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“I don’t see any evidence that they took the person who’s trying to start garden service because they can’t afford college — I didn’t see any evidence that they would consider that,” Roberts said in response to Prelogar.
The other conservatives followed suit. Addressing the attorney general, Justice Samuel Alito demanded to know whether the administration’s education secretary believes the plan is correct.
“Why is that right?” Alito asked. “Why doesn’t the answer say it was ‘desired’?” Maybe it was wanted, but why?”
“It was fair because, absent this exemption, it is undeniable that there will be millions of student loan borrowers who will not be able to pay off their student loans,” Prelogar responded. “They will default to delinquency, and the HEROES Act was designed specifically for that situation. This is Congress telling the secretary, “You must not let this happen.”
Judge Brett Kavanaugh said the plan creates “big winners and big losers” and speculated that Congress might “try to hear all of this and look at all of this.”
“Should any of these factors influence how we think about whether to give the disclaimer a broad or a narrow reading?” Kavanaugh said.
“No, I don’t think that should affect how you interpret the statute,” Prelogar replied. “The court must consider this text on its own terms.”
Prelogar asked the conservative justices to stick to the limitations of the main doctrine they had stated in earlier case law, rather than trying to expand the doctrine to include whether Congress had fully considered the appropriateness of the actions authorized by its laws.
The main issues doctrine was criticized as a judicial power grab that allows conservatives to remove executive actions they don’t like without reviewing precedents. The entire line of questioning during the student loan debate underscored this criticism.
Faced with a policy that doesn’t quite fit within the confines of the current main issue doctrine, conservative justices have ended up expanding it.
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