The future looks bleak for President Joe Biden’s signature $400 billion student debt relief plan. It seems almost certain that conservative Supreme Court justices will accept the state plaintiffs’ argument that they have standing to challenge the program, though it’s far from clear how it affects them.
On the merits, the justices showed interest in two alternative legal theories of why debt forgiveness overrides the president’s power to do without Congress. Whichever the court rules, the program looks very likely to be struck down by a 6-3 vote.
That sounds bad for liberals. But on closer examination, the legal outcome may not be such a disaster for liberal principles of legal interpretation. Leave aside whether you think loan forgiveness is good public policy, a question on which there is room for disagreement, even among progressives. What troubles conservative justices, from a legal standpoint, is the scope of executive power implied by the president’s unilateral decision to invoke his pandemic emergency powers to spend nearly half a trillion dollars without congressional approval.
And liberals should care about this kind of unchecked executive power as much as conservatives.
The president, after all, is not always a Democrat. When President Donald Trump wanted to spend federal dollars building a border wall with Mexico without congressional approval, liberals, including myself, rightly objected. In fact, we need some clarification from the Supreme Court on the issue of unilateral presidential spending. And in the case of student loans, we might get it.
Let’s start with the question of states’ ability to sue.
All of the liberal justices questioned whether the court had jurisdiction to decide the case, given that the states are not specifically harmed by the loan forgiveness. It’s part of an ongoing debate over state status in which conservative justices have expanded states’ ability to object to federal programs, a debate that goes back at least as far as the Affordable Care Act.
What is remarkable about the positions in this debate is that for many decades liberals have favored looser standing rules so that courts can address a wider range of issues. Conservatives have typically favored narrow requirements to prevent an activist liberal judiciary from weighing too many cases. Today, when it comes to statehood, the positions have reversed, with liberals trying to keep the conservative activist court in check.
But in the end, liberals don’t lose much if statehood continues to be expanded. The idea that the judiciary is tasked with addressing illegality and seeing justice done resonates strongly with the liberal tradition—more strongly than the idea that technical requirements must be met before courts can consider a case of alleged crime.
On the substantive issue of whether Biden is authorized to use emergency pandemic powers to forgive student loans, one conservative objection has to do with the text of the relevant statutes. At issue is a law called the Heroes Act, a “national emergency” measure enacted after September 11, 2001. Under the law, the secretary of education may, in an emergency, “waive or modify any statutory or regulatory provision” dealing with student loan programs so that borrowers are not left worse off than they otherwise would have been because of the emergency. This is the stated basis for the Biden administration’s action.
According to the theory of textualism, judges should look to the words of the statute to see what they mean—not the intent of the statute. If they weren’t so committed to textualism, conservative justices might simply say that forgiving $400 billion in loans wasn’t what Congress intended when it created the emergency provision. But they didn’t want to go there, because they pretend they never care about the purpose of a statute. So the conservative justices were left to try to insist that total cancellation of student debt is not a “waiver” or “modification” in the language of the statute.
That textualist argument against the forgiveness program is not so easy to make. For a lawyer, waiver “is an extremely broad word,” as Judge Brett Kavanaugh acknowledged. Justice Elena Kagan, a liberal who has flirted in the past with adopting textualism as a theory of statutory interpretation, has come through. The result is that if conservative justices decide the case on textualist grounds, they will be open to the stinging criticism that they ignored the express words of the statute.
That remains Chief Justice John Roberts’ preferred approach. Roberts would like to implement a new doctrine, coined in an opinion last year, called the “major questions” doctrine. In short, the doctrine says that when the executive branch takes action of “vast economic and political significance” without clear authority from Congress, courts should look closely and block the action. As he made clear in oral argument, Roberts will apply the major questions doctrine to Biden’s loan forgiveness program, given its scope and lack of any direct authorization from Congress.
Liberals have criticized the major question doctrine as a judge-made initiative by the conservative Supreme Court to block liberal regulatory initiatives that would otherwise be permitted under preexisting administrative law. That criticism is fair, of course.
However, it is also true that if the major question doctrine is used to block the student loan program, it will set a precedent that the president cannot enact costly and transformative policies without first obtaining approval from Congress. That would have covered Trump’s border wall. It could, at least in principle, cover other sweeping initiatives undertaken by future Republican presidents without congressional approval.
Neither party is immune from the use of aggressive executive action under an emergency authorization. But seen in the light of history, conservative and reactionary regimes are far more likely to take advantage of emergency laws to effect major social change. The Supreme Court’s loss of the loan forgiveness program should be seen in context.
That wouldn’t be the outcome the Biden administration would have wanted, and it’s bad news for borrowers. But in the end, that might not be a bad thing for the rule of law.
Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is the author, most recently, of The Broken Constitution: Lincoln, Slavery and the Refunding of America.