Biden’s Legal Strategy Could Result in Supreme Court Scuttling His Student Loan Cancellation Program
President Joe Biden. Photo by Gage Skidmore via AP
Biden’s Legal Strategy Could Result in Supreme Court Scuttling His Student Loan Cancellation Program
A pair of cases before the bench may very well be decided 9-0 against the president, says LAW’s Jed Shugerman
When President Joe Biden’s student loan forgiveness plan goes before the Supreme Court on February 28, the cases will test progressives’ adherence to their own beliefs about the rule of law—and they may very well be decided 9-0 against Biden, says Jed Shugerman, a visiting professor at the School of Law.
“My message to people who care about this issue, who support debt relief, is to recognize that a series of cynical moves and legal missteps led to less relief in design, and probably zero relief in the end, because the Roberts Court is going to strike it down—and maybe strike it down with liberal judges agreeing that it was illegal,” says Shugerman, who himself supports a broad student debt waiver.
Biden’s plan to cancel up to $20,000 of debt for millions of student-loan borrowers was met with a flurry of legal challenges almost as soon as it was announced last summer. These challenges, including two cases now before the Supreme Court, focus on the mechanics behind the plan: namely, that Biden used emergency powers available to him because of the COVID-19 national emergency to erase certain student debt.
Justices on the Supreme Court will hear oral arguments in a pair of these cases February 28: Biden v. Nebraska and Department of Education v. Brown.
In Nebraska, a group of six states—Nebraska, Missouri, Arkansas, Iowa, Kansas, and South Carolina—argues that the Biden administration overstepped its authority by implementing the program. In Brown, lawyers argue that two borrowers—Myra Brown and Alexander Taylor—were deprived of their right to weigh in on the plan before it was implemented.
But in both cases, justices will first have to decide whether the plaintiffs have the legal right, known as “standing,” to bring the disputes in the first place. Lawyers for the Biden administration are banking on the court tossing the cases for lack of standing, a strategy that Shugerman describes as akin to playing Whack-A-Mole.
“It only takes one,” he says. BU Today spoke with Shugerman about the ins and outs of these upcoming cases—and what he expects the outcome will be.
Q&A
With Jed Shugerman
BU Today: Biden is invoking a 2003 law, the Health and Economic Recovery Omnibus Emergency Solutions (HEROES) Act, to pass his student-loan forgiveness plan. Is there another way he could have done it?
Shugerman: For years, there has been an effort to pass a student-debt waiver—well before COVID-19. It was a feature of the Elizabeth Warren and Bernie Sanders presidential campaigns leading up to 2020.
There is a statute on the books that addresses long-term education finance issues: the Higher Education Act of 1965. It’s a much better fit than the HEROES Act. But it also involves a long process that includes rescinding old regulations and adopting new ones, a process that takes at least a year.
It’s not a certainty that the Biden administration could have issued new rules to allow a broad debt waiver by the Department of Education, but it’s a much better strategy than what the administration did to try to expedite the process. They tried to evade the appropriate process under the Higher Education Act and instead use the COVID-19 emergency powers to waive student debt. It seems like a decision motivated more by a political timeline than good faith legal arguments.
BU Today: The White House announced recently that it would stop classifying COVID-19 as a national emergency on May 11. Does that weaken Biden’s argument for using emergency powers to cancel student debt?
Shugerman: I mean, Biden was saying back in September, on 60 Minutes, “the pandemic is over.” They hadn’t even finalized the emergency [debt-relief] program yet. If the Biden administration is fast-tracking this program on the basis of a national emergency—both as a matter of substance and process—then it’s contradictory to say that the emergency is over and still come out with the program.
After extending the national emergency to May 11, Biden told a reporter that his administration did so “to make sure we get everything done,” which is completely backwards. The reason you have a policy is because there’s an emergency; you don’t use an emergency to get a policy through. That quote was a gaffe, because it’s true.
And this is a bipartisan problem, especially for those who are more dangerous than Biden. Presidents overreaching with executive powers sets a dangerous precedent.
BU Today: How do you think justices will receive oral arguments in these cases?
Shugerman: My message the entire time has been that this was such a flagrant, pretextual use of an emergency that the liberal justices will look back at their own precedents during the Trump administration and say, we ruled that the Trump administration was misusing emergencies and it was impermissible. We can’t turn around in this case and say it’s fine.
I think the liberal justices have more self-awareness about their own precedents than to be so partisan. I’m in favor of some form of student-debt relief, but would be disappointed if the court strikes this down by anything less than a 9-0 vote.
BU Today: What will you be listening for?
Shugerman: Well, I teach a seminar on the presidency this semester that meets on Tuesday mornings, so it coincides with the oral argument that day. We’re going to listen in and have a conversation about the importance of emergency powers as part of the executive power of the presidency—and the dangers of both.
The thing is, even if this ends up being decided 6-3 [against Biden], I don’t think many young people with student debt are going to say, ‘I was really hoping the Biden administration would get this through and I appreciate that they tried, but I blame the Roberts court for the fact that it didn’t happen.’ At the end of the day, if this fails, people are going to blame the Biden administration.
BU Today: What happens if the court strikes down Biden’s plan? Does the president have any recourse?
Shugerman: The Biden Department of Education can start over, and most likely relying on the statute that I (following the advice of many other supporters of a student debt waiver plan) suggested earlier, the Higher Education Act of 1965.
But that statute would require a year to rescind the old Obama-era regulations and write new ones, with notice to the public and comment from the public, and something called “negotiated regulation.” That’s why it takes a year, and that’s why the Biden administration tried to use a different law as a faster basis.
The huge problem is that the Biden administration wasted a year, and just like these current plaintiffs won an injunction to delay this program from going into effect, new plaintiffs will be able to challenge the next attempt when it is finalized in 2024. Even if it has a better chance of winning, the new plan will be blocked until the next administration. And thus, the Biden administration will run out of time, even if it suddenly announces it is canceling this program and starting over.
By using this emergency pretext in August 2022 instead of the appropriate law for the real reasons (structural reform) and then stubbornly defending it in court all through 2022 into 2023, the Biden administration likely wasted a four-year opportunity to get this waiver done.
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