By John Kruzel and Andrew Chung
WASHINGTON (Reuters) – The skepticism expressed by conservative U.S. Supreme Court justices over President Joe Biden’s move to forgive $430 billion in student debt not only cast doubt on the fate of the plan but also signaled trouble ahead for the use of executive power to to get things done. his remaining time in office.
Questions asked by the conservative justices during arguments Tuesday on Biden’s debt relief indicated the conservative-majority court could strike down the plan as an illegal overreach of executive power.
The conservative justices may apply the exacting legal standard they have used to undo past policy actions by Biden — one that could prevent him from using executive power to enact other items on his agenda even as he deals with a divided Congress , who are unlikely to pass legislation, want to.
Republicans control the House of Representatives, while Biden’s fellow Democrats control the Senate.
The court must rule by the end of June on the legality of the debt settlement, which the administration argued was legal under authority granted to the executive branch by the Higher Education Relief Opportunities for Students Act, or HEROES Act. This 2003 law authorizes the U.S. Secretary of Education to “waive or modify” financial aid for students during times of war or national emergency, in this case the COVID-19 pandemic.
“If it (the court) indicates that it does not believe that HEROES Act authority extends to loan forgiveness in this context, this would signal that the Court intends to limit future applications of aggressive statutory interpretation by Biden or successive administrations,” said Andrew Rudalevige, a professor of government at Bowdoin College in Maine.
Such an outcome, Rudalevige added, could have serious implications for basic governance in Washington.
“If Congress can’t or won’t step up and the court won’t let presidents do it, what are we left with? Governing by five justices doesn’t seem like good government either,” Rudalevige said, referring to the number of votes needed to win a case at the Supreme Court.
Presidents of both parties have used executive orders and other unilateral steps when Congress has failed to act as they hoped — sometimes tiptoeing to the brink, or perhaps beyond, of encroaching on the legislative branch.
When Biden was vice president in 2014, then-President Barack Obama noted that he could bypass congressional gridlock through his executive branch, saying, “I have a pen and I have a phone.” Obama did it on immigration and other policies.
Since then, the Supreme Court has moved to the right, especially after gaining a 6-3 conservative majority in 2020 with Republican President Donald Trump’s appointment of Justice Amy Coney Barrett.
The court has repeatedly applied the so-called grand questions doctrine to Biden policies, a legal approach that casts a skeptical eye on far-reaching action by federal agencies deemed to lack clear congressional authorization.
Its conservative justices have already invoked it to strike down a pandemic-era eviction moratorium, a COVID-19 vaccination or testing mandate for big businesses and federal limits on carbon emissions from power plants.
‘A GOOD LESSON’
Chief Justice John Roberts said during Tuesday’s arguments that policies that involve a lot of money and generate a lot of political controversy can be “something for Congress to act on.”
“And if they haven’t acted on it, then maybe it’s a good lesson to say to the president or the administrative bureaucracy that maybe it’s not something they should be taking on on their own,” Roberts said.
Biden’s plan, announced last August, would forgive up to $10,000 in federal student debt for Americans making less than $125,000 who took out loans to pay for college and other post-secondary education and $20,000 for recipients of Pell Grants awarded students from lower income families. .
In some cases, like Biden’s unilateral effort to extend the deportation moratorium, he took executive action after congressional inaction. The same dynamic was at play when his administration unveiled the debt-forgiveness policy, according to David Lublin, a professor of government at American University in Washington.
“The program certainly reflects Democratic frustration at not being able to do this legislatively, and the (legal) challenges reflect the Republican desire to challenge Democrats in every way,” Lublin said. “We are in very polarized times.”
Lublin said the impact on Biden’s future agenda will depend on how the court explains when a president’s administration exceeds its authority under a federal statute or the U.S. Constitution.
For example, Lublin said, “If many similar statutes have similar statutory wording, broad or major administrative actions may also be challenged.”
“All of this is more likely to have an impact on Democrats because they are more likely to want the government to act aggressively via spending,” Lublin added.
Liberal Justice Ketanji Brown Jackson, a Biden appointee, raised similar concerns Tuesday, highlighting a “big picture” concern that the court makes it too easy for people to sue to stop government policies they don’t like.
“I’m concerned that we’re going to have a problem with the ability of the federal government to function,” Jackson said.
(Reporting by John Kruzel and Andrew Chung in Washington; Editing by Will Dunham)
