The United States Supreme Court: NAJ screen shot

Legal Analysis –
By Glynn Wilson –

WASHINGTON, D.C. — With another stroke of their blood-soaked computer keyboards, the activist judges on the Trump-Bush conservative Supreme Court might as well have taken an axe to the Constitutional separation of powers and splintered the power of the Executive branch to make policy on matters it is authorized by Congress to execute.

In this case, to forgive student loan debt, a financial burden that millions of Americans suffer under, preventing them from actively participating in the economy of the nation.

It was President Donald Trump who first suspended student loan payments and the accrual of interest on loans when he declared the coronavirus pandemic a national emergency in March, 2020. President Joe Biden continued that policy as the Covid-19 national emergency continued under his watch.

Seeing mounting student loan debt becoming a major economic catastrophe for more than 45 million people, which was also creating an economic problem for the nation as a whole, the Biden Department of Education proposed forgiving $400 billion in student loan debt for the lowest income borrowers.

Six states and two individuals sued to stop it, but lost in a lower court. This court reversed and remanded the lower court’s decision, and now in defense of big banks and capitalists everywhere, this Supreme Court said it would be up to Congress to write specific language authorizing it, which everyone knows this Congress, with a slim Republican majority, will never do.

So the Roberts court ruled on Friday that “the Biden administration had overstepped its authority with its plan to wipe out more than $400 billion in student debt, dashing the hopes of tens of millions of borrowers and imposing new restrictions on presidential power,” according to the New York Times version of the breaking news story.

With the court’s liberal members in dissent, the vote was 6 to 3, like most partisan decisions of this court that seems hell bent on protecting capitalism, with little care for democracy itself or the future of the planet.

Read the decision here.

It is being called “a resounding setback for President Biden,” who had vowed to help borrowers “crawl out from under that mountain of debt.”

According to government data, more than 45 million people across the country owe $1.6 trillion in federal loans for college. The proposed debt cancellation, announced by last summer, would have been one of the most expensive executive actions in U.S. history, the court says.

The Biden administration said its plan was meant to address the coronavirus pandemic and its lingering effects and was authorized by the Higher Education Relief Opportunities for Students Act of 2003, usually called the HEROES Act. That law, initially enacted after the terrorist attacks on Sept. 11, 2001, gives the secretary of education the power to “waive or modify any statutory or regulatory provision” to protect borrowers affected by “a war or other military operation or national emergency.”

The payment pause in this case has cost the government more than $100 billion, according to the Government Accountability Office and this court.

In August the administration ended the national emergency and the repayment pause, but proposed forgiving $10,000 in debt for individuals earning less than $125,000 a year, or $250,000 per household, and $20,000 for those who received Pell grants for low-income families.

Nearly 26 million borrowers applied to have some of their student loan debt erased. While the government has approved 16 million applications, no debt has been canceled yet. The Education Department, which owns and manages the government’s $1.5 trillion student debt portfolio, has stopped accepting applications in light of the legal challenges.

In separate cases, six Republican-led states — Nebraska, Missouri, Arkansas, Iowa, Kansas and South Carolina — and two individuals sued to stop the new plan. They relied on recent decisions employing the so-called major questions doctrine, which says that Congress must speak particularly clearly when authorizing the executive branch to act on important political and economic questions.

The court has invoked that doctrine in signaling skepticism toward crucial parts of President Biden’s agenda, including curtailing the Environmental Protection Agency’s power to address climate change. Without “clear congressional authorization,” the court said, the agency could not act.

Related: Conservative Supreme Court Rules to Limit EPA’s Power in Regulating the Destruction of Wetlands

The court also ruled, on similar grounds, that the Centers for Disease Control and Prevention was not authorized to impose a moratorium on evictions and that the Occupational Safety and Health Administration was not authorized to tell large employers to have their workers vaccinated against Covid-19 or undergo frequent testing, as the Times points out.

Student Loan Case

The states lost the first round in the student loan case, Biden v. Nebraska, No. 22-506.

“While plaintiffs present important and significant challenges to the debt relief plan,” wrote Judge Henry E. Autrey of the Federal District Court in St. Louis, who was appointed by President George W. Bush, “the current plaintiffs are unable to proceed to the resolution of these challenges.”

A three-judge panel of the Eighth Circuit blocked that ruling. Two of its three members — Judges Ralph R. Erickson and Leonard S. Grasz — were appointed by Trump. The third, Judge Bobby E. Shepherd, was appointed by George W. Bush.

A key threshold question for the justice was whether the plaintiffs have suffered the sort of direct and concrete injury that gives them standing to sue.

When the case was argued in February, the justices focused on a nonprofit entity that services federal loans, the Missouri Higher Education Loan Authority, also known as MOHELA. The states argued that the entity’s potential losses from the loan forgiveness program were enough to confer standing because it is effectively an arm of the State of Missouri. They also argued that the authority might fail to make payments to Missouri if the program were allowed to proceed, extrapolating that to the other states and granted them standing.

But this high court did not just uphold the loss on appeal and reverse the decision of the lower court. Chief Justice Roberts included language in the final paragraph of the decision disparaging its own members for dissent.

“It has become a disturbing feature of some recent opinions to criticize the decisions with which they disagree as going beyond the proper role of the judiciary,” Roberts wrote. “Today, we have concluded that an instrumentality created by Missouri, governed by Missouri, and answerable to Missouri is indeed part of Missouri; that the words ‘waive or modify’ do not mean ‘completely rewrite’; and that our precedent—old and new—requires that Congress speak clearly before a Department Secretary can unilaterally alter large sections of the American economy. We have employed the traditional tools of judicial decision making in doing so. Reasonable minds may disagree with our analysis—in fact, at least three do. … (KAGAN, J., dissenting).

“We do not mistake this plainly heartfelt disagreement for disparagement,” Roberts wrote. “It is important that the public not be misled either. Any such misperception would be harmful to this institution and our country.

“The judgment of the District Court for the Eastern District of Missouri is reversed, and the case is remanded for further proceedings consistent with this opinion. The Government’s application to vacate the Eighth Circuit’s injunction is denied as moot. It is so ordered. ”

In a footnote by this in the decision, the Chief Justice continues his complaint about the dissent, which he said, “complains that our application of the major questions doctrine is a ‘tell’ revealing that “ ‘normal’ statutory interpretation cannot sustain [our] decision.’ … Not so. As we have explained, the statutory text alone precludes the Secretary’s program. Today’s opinion simply reflects this Court’s familiar practice of providing multiple grounds to support its conclusions. … (Citation: interpreting the text of a federal immigration statute in the first instance, then citing the ‘presumption favoring judicial review of administrative action as an additional sufficient basis for the Court’s decision). The fact that multiple grounds support a result is usually regarded as a strength, not a weakness.”

Yet in the dissent written by Justice Elena Kagan, appointed by President Obama, joined by Sonia Sotomayor, also an Obama appointee, and Ketanji Brown Jackson, President Joe Biden’s only appointee on the court, they point out something about this court that has long been a complaint about the court from politicians on the right: That is, a reference to “activist judges” who “legislate from the bench.”

The dissent leads off:

“In every respect, the Court today exceeds its proper, limited role in our Nation’s governance.”

I suspect that what will be remembered about this court and its decisions will be the eloquent dissents, when the people of this country realize how electing right-wing politicians can have devistating impacts on our jurisprudence and reverse this rightward tilt at the ballot box — then appointing more reasonable judges to totally reverse every precedent shattering decision of this court.

Listen to this:

“Some 20 years ago, Congress enacted legislation, called the HEROES Act, authorizing the Secretary of Education to provide relief to student-loan borrowers when a national emergency struck. The Secretary’s authority was bounded: He could do only what was ‘necessary’ to alleviate the emergency’s impact on affected borrowers’ ability to repay their student loans. … But within that bounded area, Congress gave discretion to the Secretary. He could “waive or modify any statutory or regulatory provision” applying to federal student-loan programs, including provisions relating to loan repayment and forgiveness. And in so doing, he could replace the old provisions with new “terms and conditions.” … The Secretary, that is, could give the relief that was needed, in the form he deemed most appropriate, to counteract the effects of a national emergency on borrowers’ capacity to repay. That may have been a good idea, or it may have been a bad idea. Either way, it was what Congress said.

“When COVID hit, two Secretaries serving two different Presidents decided to use their HEROES Act authority. The first suspended loan repayments and interest accrual for all federally held student loans. The second continued that policy for a time, and then replaced it with the loan forgiveness plan at issue here, granting most low- and middle-income borrowers up to $10,000 in debt relief. Both relied on the HEROES Act language cited above. In establishing the loan forgiveness plan, the current Secretary scratched the pre-existing conditions for loan discharge, and specified different conditions, opening loan forgiveness to more borrowers. So he ‘waive[d]’ and ‘modif[ied]’ statutory and regulatory provisions and applied other ‘terms and conditions’ in their stead. That may have been a good idea, or it may have been a bad idea. Either way, the Secretary did only what Congress had told him he could.

“The Court’s first overreach in this case is deciding it at all. Under Article III of the Constitution, a plaintiff must have standing to challenge a government action. And that requires a personal stake—an injury in fact. We do not allow plaintiffs to bring suit just because they oppose a policy. Neither do we allow plaintiffs to rely on injuries suffered by others. Those rules may sound technical, but they enforce ‘fundamental limits on federal judicial power.’ … They keep courts acting like courts. Or stated the other way around, they prevent courts from acting like this Court does today. The plaintiffs in this case are six States that have no personal stake in the Secretary’s loan forgiveness plan. They are classic ideological plaintiffs: They think the plan a very bad idea, but they are no worse off because the Secretary differs. In giving those States a forum—in adjudicating their complaint—the Court forgets its proper role. The Court acts as though it is an arbiter of political and policy disputes, rather than of cases and controversies.

“And the Court’s role confusion persists when it takes up the merits. For years, this Court has insisted that the way to keep judges’ policy views and preferences out of judicial decision making is to hew to a statute’s text. The HEROES Act’s text settles the legality of the Secretary’s loan forgiveness plan. The statute provides the Secretary with broad authority to give emergency relief to student-loan borrowers, including by altering usual discharge rules.

“What the Secretary did fits comfortably within that delegation. But the Court forbids him to proceed. As in other recent cases, the rules of the game change when Congress enacts broad delegations allowing agencies to take substantial regulatory measures. … Then, as in this case, the Court reads statutes unnaturally, seeking to cabin their evident scope. And the Court applies heightened-specificity requirements, thwarting Congress’s efforts to ensure adequate responses to unforeseen events. The result here is that the Court substitutes itself for Congress and the Executive Branch in making national policy about student-loan forgiveness.

“Congress authorized the forgiveness plan (among many other actions); the Secretary put it in place; and the President would have been accountable for its success or failure. But this Court today decides that some 40 million Americans will not receive the benefits the plan provides, because (so says the Court) that assistance is too ‘significan[t].’

… With all respect, I dissent.”

Read the decision and the dissent here.

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