by As the Supreme Court heard arguments this week about President Joe Biden’s student loan debt relief plan, the justices asked about defining the relevant statutory language and whether the plaintiffs had the right to sue, as well as constitutional questions about the separation of powers. These are all typical issues to be discussed during judicial review. But conservative justices also spent a lot of time wondering about a more nebulous topic: fairness.
The equity issue arose during the discussions in Department of Education v. Brown, a case in which two individual student borrowers challenged the Biden plan because they didn’t qualify for any or all of the relief offered.
“Because we’re dealing in a case with either individual borrowers or prospective borrowers, I think it’s appropriate to consider some of the equity arguments,” Chief Justice John Roberts said.
Roberts then presented a hypothetical scenario involving two high school graduates, neither of whom can afford college. One takes out a loan to go to college, while the other gets a loan to start a lawn care business. The college-goer, “we know statistically,” Roberts said, “will do significantly better financially over a lifetime than the person without.”
“And then the government comes and says to that person, ‘You don’t have to pay your loan,'” he said. “No one is telling that person who is trying to start the lawn service business that they don’t have to pay the loan.”
For a court that often pretends to be above the political fray, this is a line of argument that appears purely political in nature. The court is not judging whether the policies are right. Indeed, the chief justice acknowledged that his opinion on fairness does not matter.
“You may have opinions about [the] fairness of that, and they don’t matter,” Roberts told Attorney General Elizabeth Prelogar. “I may have opinions about the fairness of that, and mine don’t matter.”
So why, then, is the chief justice questioning the fairness of the government’s plan?
The answer is that Roberts was trying to fit the political debate about equity into what is known as the court’s doctrine of “leading questions.”
“Usually we would like to leave situations like this, when it comes to spending government money, which is taxpayer money, to the people responsible for the money, which is Congress,” Roberts said.
“Why isn’t that a factor that should go into our consideration of our major issues — where we look at things a little more rigorously than we might otherwise when we’re talking about statutory grants of authority to make sure this is something Congress would do?” have I contemplated?
“Some of the equity arguments need to be considered,” Chief Justice John Roberts said during debates over the student loan relief plan.
The principal questions doctrine has emerged in recent years as a favorite tool of the court’s conservative majority for cracking down on the actions of the executive branch it dislikes. The doctrine states that agency regulations of “broad economic and political significance” must be specifically authorized by Congress.
The principal questions doctrine, as currently stated by the high court, “directs courts not to discern the simple meaning of a statute using the usual tools of statutory interpretation, but to seek express and specific congressional authorization for certain agency policies 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 deployed the doctrine in recent cases overturning the Biden administration’s COVID-19 vaccine mandate for large employers, the pandemic eviction moratorium, and, in the 2022 case West Virginia v. Environmental Protection Agency, as-yet-proposed regulations that limit greenhouse gas emissions from power plants.
“EPA said it was discovering an unheralded power that represents a transformative expansion of its regulatory authority in the vague language of a long-existing but seldom-used statute designed as a gap filler,” Roberts wrote in the case. West Virginia. “That breakthrough enabled it to adopt a regulatory agenda that Congress had conspicuously refused to implement. Given these circumstances, there is every reason to “hesitate before concluding that Congress ‘intended to give the EPA the authority it claims.”
The key issue here is a concern about the separation of powers, that is, that Congress is the proper forum for the adoption of economically and politically significant regulatory action. As Roberts said of the Biden administration’s potential actions on greenhouse gas emissions, Congress did not enact the exact regulatory framework in that case.
But the student loan forgiveness program rests on a fairly solid foundation in terms of legal authorization.
The HEROES Act of 2003 allows the Secretary of Education to “waiver” or “change” the terms of student loans held by the federal government during a declared national emergency. The COVID-19 pandemic is such an emergency. And the education secretary has waived and changed the terms of some student loans under the law passed by Congress providing up to $20,000 in pardons.
During discussions about whether to apply the leading questions doctrine to the student loan relief plan, conservative judges questioned whether debt forgiveness fits the definition of waiver or modification and whether a benefits program is the same action regulatory. Prelogar argued that Congress has given the authority to the education secretary to waive or change 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 having Congress authorize the secretary to forgive certain loans. Even if Congress had authorized the waiver or modification of the terms of the loan, did he consider whether that would have been fair? And wouldn’t Congress be the only body capable of adjudicating fairness?
Borrowers and student loan advocates rally during Supreme Court arguments over White House student loan relief plan.
“I don’t see any evidence that they’ve taken the person who’s trying to start the garden service because they can’t afford college — I haven’t seen any evidence that they’ve even considered that,” Roberts said in response to Prelogar.
The other Conservatives followed suit. Addressing the Attorney General, Judge Samuel Alito asked to know if the administration’s education secretary believed the plan was right.
“Why is it right?” Alito asked. “Why isn’t the answer to say he was ‘wanted’? Maybe he was wanted, but why?
“It was right because in the absence of this relief, there is no question that there will be millions of student loan borrowers who will be unable to pay off their student loans,” Prelogar responded. “They will be delinquent defaulters and the HEROES Act was specifically designed for the situation. This is Congress telling the secretary, ‘You mustn’t let that happen.’”
Judge Brett Kavanaugh said the plan creates “big winners and big losers” and speculated that Congress could “try to hear everything about everything and take it into account.”
“Should any of these impact how we think about whether to give the waiver a broad read or a narrow read?” Kavanaugh said.
“No, I don’t think that should affect how you interpret the statute,” Prelogar replied. “The court must consider that text on its own terms.”
Prelogar asked conservative justices to stick to the limitations of the principal questions doctrine they had stated in the previous case study, instead of seeking to expand the doctrine to include whether Congress fully considered the equity of actions authorized by its statutes.
The main issues doctrine was criticized as a judicial power grab that allows conservatives to reverse executive actions they don’t like without revisiting their track records. The entire line of questioning during student loan discussions underlined that criticism.
Faced with a policy that didn’t quite fit within the limits of the current big questions doctrine, conservative justices sought to expand it.
