It’s ‘more possible than I thought’: Even if the justices knock down the initiative, there could be room for the White House to keep pushing.
We’re still months away from finding out how the Supreme Court views the Biden administration’s plan to cancel student debt. But it’s possible that what they say this time around won’t be the last word.
Christopher Walker, a professor at the University of Michigan Law School, said this narrower route “is more possible than I thought” initially, “just based on how the argument went.” “If the court either for that reason or some other rules that the HEROES Act in particular does not allow debt cancellation, that would tie the administration’s hands completely to rely on the HEROES Act again to cancel any debt,” said David Rubenstein, a professor at Washburn University School of Law.
An exchange between Prelogar and Justice Neil Gorsuch exemplified this strategy. Gorsuch asked Prelogar whether the HEROES Act allows for relief that might actually make some of the people who receive the relief better off. “Let’s say two people in Missouri, okay, all right, they’re better off, fine. But what if it’s 90 percent of the class just hypothetically that — could — could the Secretary do that under this statute?” he said.
Solicitor General’s performance opens up the possibility of a narrower ruling Walker cited two cases where Chief Justice John Roberts told the Trump Administration to provide better reasons for large executive agency policy, but didn’t say that administration could not pursue them. During oral arguments Roberts said the student loan issue “reminds me” of one of those cases “where the administration tried acting on its own to cancel the Dreamers program, and we blocked that effort.
“They would have to answer some political questions they might not want to answer, such as we’re not giving you any relief because of X,” he said. And, even after they take that step, the plan is likely to end up in front of the Supreme Court — which is relatively hostile to broad executive action — once again.
That framing “may give the court a little more pause,” in applying the major questions doctrine when thinking about the policy and instead just sending the policy back to the Secretary of Education to provide additional reasoning, he said.
At oral arguments, J. Michael Connolly, the attorney representing two student loan borrowers challenging the debt relief plan, also acknowledged that this provision gives the Department of Education the authority to cancel student debt. “If they do that, are they doing something like a regulation, or are they going to have to modify their existing regulations?” Herrine said. “They would not be able to do that immediately and it’s not clear they’d be able to do it before the payment pause stops.”
“We know that there are other sources of legal authority that the administration could have used,” he said. “We’re going to keep pushing regardless of the outcome of the court.” The Court’s three liberal justices seemed skeptical of the standing claims. In addition, one of the conservative justices, Amy Coney Barrett, probed James Campbell, the solicitor general of Nebraska who was representing the states, on one of the states’ main arguments for standing. That claim rests on Missiour’s relationship with the Missouri Higher Education Loan Authority or MOHELA, a state-affiliated organization that services federal student loans.
Given that the case for standing wasn’t that compelling and some of the conservative justices’ history on the standing issue, “they might be more skeptical,” Herrine said.
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