Partisan priorities and institutional legitimacy in the flawed challenges to student-debt relief

SYMPOSIUM

This article is part of a symposium on the upcoming arguments in Biden v. Nebraska and Department of Education v. Brown. A preview of the cases is here.

Jonathan D. Glater is a professor of law at the University of California, Berkeley, School of Law. He has written extensively about the role of law in shaping access to higher education, with particular attention to the impact of student borrowing and indebtedness. Prior to entering law teaching, he wrote about law and higher education, among other topics, for The New York Times.

Formally, the Supreme Court faces two questions in the pair of cases challenging the Biden administration’s initiative to cancel between $10,000 and $20,000 of federal student-loan indebtedness per borrower. First, have the plaintiffs established that they have suffered an injury sufficient to sustain their lawsuit? And second, does the cancellation effort comply with law? If the answer to the first question is no, the court need not reach the second.

But the case is about far more. The challenges provide conservative justices a chance to undermine a signature policy effort by the Biden administration, giving a partisan boost to a Republican Party that has celebrated the fact that cancellation touches a raw political nerve in a culture that prizes individual achievement and treats financial debts as moral obligations. The ruling also may tarnish or bolster the court’s legitimacy, depending on how a ruling is perceived, but that is a constraint only for those who care about legitimacy.

Most importantly, the interests of borrowers hang in the balance, on the verge of a remarkable opportunity to improve their financial well-being by reducing or eliminating billions of dollars in debt obligations. Pre-pandemic research already established how debilitating this debt is, getting in the way of achieving major life milestones and siphoning income; research since the onset of the pandemic has helped document the benefits to borrowers of the ongoing, temporary, emergency suspension of payment obligations for federal student-loan borrowers, foreshadowing the pain of the end of the “payment pause.” The prior administration implemented that pause, incidentally, citing the same law that the Biden administration is using, but that move did not trigger litigation, which may reveal something about the motives of the plaintiffs.

A brief submitted on behalf of legal scholars, including me, focused on whether the secretary of education had authority to embark on debt cancellation. This is a matter of statutory interpretation. The HEROES Act of 2003 grants the secretary the authority to “waive or modify any statutory or regulatory provision applicable to the student financial assistance programs under” Title IV of the Higher Education Act of 1965, which created the framework for federal student aid. The idea is, the secretary should act to ensure that borrowers are not in a worse situation because of the emergency. We argue that this language unequivocally permits the cancellation contemplated by the Biden administration’s plan. And Congress specifically foresaw that this language contemplating waiving and modifying could encompass changes to loan programs en masse rather than on an individual borrower basis. 

In their attack on the statutory text, the plaintiffs argue that cancellation constitutes a “breathtaking assertion of power and a matter of great economic and political significance” sufficient to demand a clearer expression of congressional intent than that in the statute. The brief calls on the court to invoke the “major questions doctrine” to conclude that Congress did not speak clearly enough. The conservative justices may indeed use this tool to give the plaintiffs what they want – but more on that in a moment.

The plaintiffs note that even if there were at one time authority under the HEROES Act, that authority now is on the verge of evaporation. This is disingenuous because the question is what authority the administration had at the time that the cancellation plan was rolled out. From a policy perspective, it is also shortsighted because the harmful effects of the pandemic will linger into the uncertain, post-pandemic economy. It will not help borrowers that after nearly three years of the pause in payments, their obligations will soon resume. Needless to say, the factual record in this accelerated litigation does not show that the resumption of payments will not put borrowers in a worse position than they were before COVID-19 began to spread.

As for standing, the state plaintiffs in Nebraska contend that it is enough that a relationship exists between the states and loan-servicing entities that are state-created and that have financial obligations to the states. This is, as the government notes in its brief, akin to arguing that if A owes money to B and B owes money to C, then C can sue A to compel payment of B, because otherwise B might not pay C.  That is speculative: Even if cancellation has an adverse financial impact on the loan servicer MOHELA or any other servicer, it is not certain that the servicer would then be unable to make its payments to the state. Further, any government action may produce benefits and costs for third parties. Finally, the relationship between MOHELA and the state of Missouri does not establish standing, as another amicus brief argues in detail: MOHELA is an independent entity.

The plaintiffs in the second case, Brown, ostensibly challenge their exclusion from the benefits of cancellation, an injury that they attribute to the lack of an opportunity to comment on the proposed cancellation plan prior to implementation. Deprivation of that opportunity violated the Administrative Procedure Act, they assert. The lower court’s remedy of cancelling cancellation, denying relief to the plaintiffs and every other borrower, is puzzling; the plaintiffs argue that the administration could rely on a different statute to provide broader cancellation. The complaint that the Education Department should have solicited public comment is yet more befuddling on further inspection because the HEROES Act expressly authorizes the secretary to act without going through such formal rulemaking procedures.

If the court validates such tenuous theories of standing in these cases, then in short order the court either will have to entertain comparable suits by future plaintiffs whom the conservative justices disapprove of or will have to espouse longstanding constraints that would doom the current plaintiffs. If the conservative justices have it both ways, allowing the present suits but disallowing future ones, they undermine the legitimacy of the court. We will see whether that matters.

Adopting a broader perspective for a moment, the resolution of this case will provide evidence of the extent to which the Supreme Court’s conservative majority will allow concerns about institutional legitimacy – of the court, of the law – to constrain its members’ partisan leanings. As a practical matter these six justices need not adhere to any principle they use to resolve these suits because they face no accountability: They can find standing today and then distinguish the circumstances of a progressive group that attempts to use the plaintiffs’ expansive theories in a future case, just as they can distinguish and approve of a future Republican president’s exercise of executive authority of scope comparable to or greater than that in this case. After all, while the law is not an exercise in sophistry, sophistry can enable law. It would just be bad law.