“What the Supreme Court is really limiting here is its broad, creative interpretations of the statute,” said Nathan Arnold, senior policy advisor at EducationCounsel, a Washington-based consulting firm. Previously, he worked for eight years at the Department of Education under both the Obama and Trump administrations, serving as chief of staff acting secretary and senior policy advisor for the Office of Postsecondary Education.
Arnold said he thinks the Supreme Court’s recent decision in the EPA case makes it clear that federal agencies “have a new hurdle to clear” before taking certain actions.
“I wouldn’t be surprised if this decision affects their calculation of the debt forgiveness question,” Arnold added, referring to the Biden administration’s attorneys.
Recent Supreme Court decisions ruled against the agency’s aggressive actions
In the recent EPA case, the Supreme Court is considering an Obama-era climate rule (never passed by the Biden administration) based on the 1970 provision of the Clean Air Act. The conservative majority said the rule exceeded the authority given to the EPA under the law, with the court explicitly citing what is known as the “big question doctrine”.
In previous cases during this term, the Supreme Court’s conservative majority rejected the agency’s claims about the regulator because, from the court’s view, it involved an issue had broad economic and political implications – and the judges concluded that Congress had not explicitly given that authority. extensive authority on the matter.
Never before has the Supreme Court so forthright used the doctrine of the big questions as it did in this year’s climate change case, naming it in the official majority opinion for the first time.
Earlier, in a court case blocking the administration’s eviction order, the court wrote in August: “We expect Congress to be clear when authorizing an agency to exercise meaningful power. ‘extensive economic and political’.” (Three liberal judges disagreed from the unsigned order.)
The court used similar language in January, when the conservative bloc ruled against The Biden regulator entrusts the vaccine to large employers.
What does the law say about student loan cancellation?
An executive action directs the secretary of education to cancel federal student loan debt broadly would be unprecedented – and therefore, questions about whether Congress has given the executive authority explicit authority to do so have yet to be heard in court.
Initially, Biden urged Congress to take action to rescind students debt instead of wading into a murky jurisdiction yourself. But Democrats may not The U.S. Senate won the Senate’s student debt abolition bill despite support from key party members including Senate Majority Leader Chuck Schumer and Massachusetts Senator Elizabeth Warren.
Last year, Biden directed attorneys at the Departments of Education and Justice to assess whether he was, in fact, entitled to cancel large-scale federal student loan debt. The authorities did not disclose those findings.
But if the big question doctrine is in effect, the courts may find that if Congress intends to use such sweeping authority to cancel student loan debt, it would say more clearly in the regulations.
Two of the authors of the memo addressed to Warren Not available for comment for this story. The third author, Toby Merrill, joined the Department of Education as deputy general counsel and introduced CNN as the department’s spokesperson.
Luke Herrine, an assistant professor of law at the University of Alabama who has previously worked on a legal strategy promoting student debt cancellation, also said he believes Congress has given the Department of Education “much.” powers to cancel student debt.”
But with the Supreme Court’s recent decisions, Herrine could see current judges dismissing an executive action to do so broadly. Traditionally, courts have procrastinated with federal agencies when issues arise regarding an unclear statute. But there has been a change.
“To me, the courts are basically saying, ‘We’ll have the first say,'” Herrine said.
Another factor that could come into play is that the Department of Education has so far used only very limited powers to cancel student debt. It almost never used its power until the Obama administration faced pressure from activists like Debt Collective – where Herrine formerly worked – to cancel the debt owed by borrowers. tricked by for-profit colleges, under a rule known as borrower protection for debt repayment. .
A long road to the Supreme Court
Even if Biden decides to cancel federal student debt broadly, that doesn’t mean a lawsuit will be filed or the case will eventually go to the Supreme Court.
First, it is not clear who will bring a lawsuit, a procedural threshold that requires that a plaintiff has caused injury to the case. The borrower is not eligible for forgiveness, but is likely to be a student lender or collection agency, according to Arnold, who also says it’s common for anyone to lose money as a result. Direct cancellation of can both stand .
If the standing barrier is resolved, the case will be heard by a district court first – it may or may not be possible to issue a preliminary order to prevent an annulment from happening before a final judgment is reached. based on the value of the hypothetical case.
Proceedings would then likely move to an appeals court, where final word could be heard, with a small portion of cases that the Supreme Court handles.
But if the Biden administration cancels student debt with an executive action and that move is opposed, lower court judges will consider what the Supreme Court has said in the cases. previously related to agency power when assessing the authority of the Ministry of Education.