Let’s not beat around the bush. The Supreme Court’s decision in Biden v. Nebraska, the one canceling President Joe Biden’s student loan forgiveness program, is complete and utter nonsense. It rewrites a federal law which explicitly authorizes the loan forgiveness program, and it relies on a fake legal doctrine known as “major questions” which has no basis in any law or any provision of the Constitution.
If you were counting on loan forgiveness — and Biden’s loan forgiveness program would have forgiven $10,000 worth of loans for most student borrowers, and $20,000 for Pell Grant recipients — you will not receive it because of a decision the Court handed down on Friday, in a 6-3 vote entirely along party lines.
Chief Justice John Roberts wrote the opinion for the Court’s majority of Republican-appointees. Justice Elena Kagan dissented on behalf of the Court’s Democratic appointees.
There are legitimate policy debates to be had over the Biden plan’s efficacy, fairness, and necessity. But one thing that should have been straightforward was its legality.
A 2003 federal law known as the Heroes Act gives the secretary of the Department of Education sweeping authority to “waive or modify any statutory or regulatory provision applicable to the student financial assistance programs … as the Secretary deems necessary in connection with a war or other military operation or national emergency.”
This is expansive language. While it only applies during a “national emergency,” when such an emergency (such as the Covid-19 pandemic) arises, the secretary may either eliminate (“waive”) or change (“modify”) student borrowers’ loan obligations “as the Secretary deems necessary.” So Congress clearly authorized the Education secretary to make modifications or waivers that are broad or narrow, or that apply to many or few borrowers. And it explicitly said that the secretary will have the final word on the scope of student loan relief within the context of a national emergency.
Roberts’s opinion in Nebraska effectively overrules the decision of both elected branches of government. It overrides Congress’s unambiguous decision to give this power to the secretary of Education. And it overrules the executive branch’s judgment about how to exercise the authority that Congress gave it. As Kagan writes in dissent, “the Secretary did only what Congress had told him he could.”
What the Nebraska case should have said
The Heroes Act was enacted in the wake of the 9/11 attack on the World Trade Center, to ensure that student borrowers who are impacted by a “war or other military operation or national emergency” are “not placed in a worse position financially” because of that emergency. Initially it was enacted on a temporary basis, but Congress made the statute permanent in 2007, thus giving the secretary lasting authority to cancel or modify student loan obligations when new emergencies arose.
In addition to the broad language permitting the secretary to “waive or modify any provision” of the federal laws governing student loans, the law also includes several other provisions showing that Congress intended the secretary to be able to exercise this power in a national emergency without being bound by many of the procedural and substantive limits that normally apply to executive branch officials engaged in policymaking.
Often, for example, when a federal agency wishes to create a new policy, it must undergo a lengthy process known as “notice and comment” before that policy may take effect. But the Heroes Act explicitly permits the Education secretary to forgo notice and comment when exercising their loan modification and forgiveness powers under the Heroes Act.
Similarly, the law states explicitly that the secretary may dole out loan relief en masse, to every borrower impacted by an emergency. According to the statute, “the Secretary is not required to exercise the waiver or modification authority under this section on a case-by-case basis.”
And, on top of all of that, the statute explicitly instructs federal courts not to interpret other federal laws to limit the secretary’s authority to alter student loan obligations. The Heroes Act permits the secretary to exercise their authority “notwithstanding any other provision of law, unless enacted with specific reference to” the Heroes Act.
So Nebraska is an easy case. When Congress passed the Heroes Act, it made a very clear and explicitly articulated decision to give the secretary broad and flexible authority in national emergencies, to allow the secretary to bypass ordinary constraints on policymakers, to permit the secretary to provide loan relief to many borrowers at once, and to forbid the federal courts from reading other statutes to narrow this authority.
That’s the exact authority that Education Secretary Miguel Cardona used when he announced the student loans forgiveness program. Pursuant to his statutory power to waive or modify loan obligations en masse, Cardona determined that, because of the financial hardship caused by the coronavirus pandemic, the Education Department would reduce loans to borrowers who earned less than $125,000 in 2020 or 2021 by $10,000, and that Pell Grant recipients would receive $20,000 in loan relief.
Obviously, there are potential downsides to Congress’s decision to give him this authority. Any government official given broad authority by Congress might abuse that power. Or they might exercise it unwisely. But, as Kagan writes, Congress’s decision to preference flexible policymaking over constraining public officials “may have been a good idea, or it may have been a bad idea.” But, “either way, it was what Congress said.”
And it is not supposed to be the job of the courts to second-guess Congress’s decisions about how federal law should operate.
How Roberts tries to get around the Heroes Act’s clear statutory text
Roberts’s attempts to make the Heroes Act mean something other than what it says are at times confusing and difficult to parse. But it basically boils down to this: In order to provide for the particular mix of student loan relief prescribed by the Biden administration’s policy, the secretary had to both “waive” some student loan obligations and “modify” others. That is, the policy only works if the secretary has the power to outright eliminate some obligations, while merely making changes to others.
The chief’s primary attack on the Heroes Act’s statutory language is that he reads the word “modify” too narrowly to permit these changes. As he writes, the word “modify” “carries ‘a connotation of increment or limitation,’ and must be read to mean ‘to change moderately or in minor fashion.’” And then he faults the Biden administration for doing too much, attempting to “transform” student loan obligations instead of merely making “modest adjustments.”
As Roberts writes, quoting from a MCI Telecommunications v. American Telephone and Telegraph (1994) “the Secretary’s plan has ‘modified’ the cited provisions [of federal laws governing student borrowing] only in the same sense that ‘the French Revolution “modified” the status of the French nobility.’”
One problem with this approach, as Kagan writes in dissent, is that courts are supposed to read the words of a statute in context, rather than in isolation, to determine what they mean when they are used in a particular law. Indeed, the MCI Telecommunications decision itself, which warned courts to “not rely exclusively upon dictionary definitions, but also upon contextual indications” when interpreting laws, provides support for Kagan’s approach.
“In the HEROES Act,” Kagan notes, “the dominant piece of context is that ‘modify’ does not stand alone. It is one part of a couplet: ‘waive or modify.’” The word “waive” moreover means “eliminate,” so Congress explicitly gave the secretary the power to simply wipe away student loan obligations altogether.
But, if the word modify were read as narrowly as Roberts suggests it must be, that would mean the Heroes Act must be read to give “the Secretary power to wholly eliminate a requirement, as well as to relax it just a little bit, but nothing in between.” The secretary, in other words, might have the power to abolish many student loans altogether, or perhaps to change a minor paperwork requirement for student borrowers, but not to take any intermediate steps between these two extremes.
That makes no sense. As Kagan writes, “Congress would not have written so insane a law.”
Perhaps recognizing that his attempts to parse the text of the Heroes Act may not be entirely persuasive, Roberts’s opinion also offers an alternative reason to strike down Biden’s student loan forgiveness program — something known as the “major questions doctrine.”
Briefly, the major questions doctrine states that the Court expects “Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’” And, as Roberts writes, there’s little question that this student loans policy, which could forgive hundreds of billions of dollars in student loans, involves matters of great significance.
But the most important thing to understand about the major questions doctrine is that it is completely made up. It appears nowhere in the Constitution, and nowhere in any statute, and was invented largely by Republican appointees to the Supreme Court. It is true that the Supreme Court has invoked this made-up doctrine several times in the recent past — mostly in opinions joined entirely by Republican-appointed justices who wished to strike down policies pushed by Democratic presidents — but, in relying on this fabricated legal doctrine one more time, Roberts effectively cites past power grabs by the justices to justify a new power grab.
And even if you accept the major questions doctrine as legitimate, it’s not clear why Biden’s student loans program still should not be upheld. The doctrine merely states that Congress must “speak clearly” if it wishes to delegate significant authority to a federal agency. And, for the reasons explained in the previous section, Congress spoke quite clearly when it wrote the Heroes Act.
So, let me end this piece as bluntly as it began. The Supreme Court’s decision in Nebraska is not rooted in law, and it barely even attempts to resemble a legal decision. The Court overrules both elected branches. It rewrites a federal law. And it roots its decision in a fake legal doctrine with no basis in any actual legal text.
You can be sure that these 6 Justices would find ample executive power to enact emergency measures — if they agree with them. It all depends on the circumstances. That’s not how any of this is supposed to work.
