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The U.S. Supreme Court convened Feb. 28 to hear two cases which challenged President Joe Biden’s student loan forgiveness plan. The court met to determine if the plan would be allowed to waive $400 billion of student debt. 

The cases come after Biden announced a plan in August 2022 to forgive up to $10,000 in federal student loans for college graduates who make less than $125,000 annually and up to $20,000 for graduates who received the Pell Grant — a federal grant given to students who demonstrate exceptional financial need. The Biden administration claims under the 2003 HEROES Act Biden had the authority to forgive student debt due to the ongoing COVID-19 pandemic, an opinion that has sparked controversy among public policy and education experts. 

After announcing the plan, the Biden administration began to accept applications for student debt relief. Before any applicant could receive relief from the program, however, it was put on temporary administrative hold by one lawsuit against it and was later struck down in another federal court. Though the Biden administration appeals the decision, applications for relief have remained closed since November. So even though some Americans were initially approved for relief under the plan, not a penny has been given out thus far.

In a memorandum published by Assistant Attorney General Christopher Schroeder for the Department of Education following Biden’s announcement in August, Schroeder explained the interpretation of the HEROES Act which he believes enables the Biden administration to cancel debt in the wake of the pandemic.  

“The (HEROES) Act provides that the Secretary (of Education) may ‘waive or modify any statutory or regulatory provision applicable to’ federal student loan programs if the Secretary ‘deems’ such actions ‘necessary to ensure that’ certain statutory objectives are achieved,” the memo reads. 

The first case, Biden v. Nebraska, was filed by a coalition of six Republican-controlled states — Arkansas, Nebraska, South Carolina, Iowa, Kansas and Missouri — in September with the Eastern Missouri U.S. District Court. The states argued that the Biden administration exceeded its authority by enacting the loan forgiveness plan and the language within the HEROES Act did not give the administration the authority to forgive student loans.

The second case, Department of Education v. Brown was filed by two plaintiffs, one who was ineligible for any debt relief under Biden’s proposed plan and the other who did not receive a Pell Grant and therefore could not cancel $20,000 of debt. The plaintiffs contended that the Biden administration had failed to implement the proper congressional procedures when passing the plan, meaning that constituents were not able to weigh in on it. 

Oral arguments for both cases began separately Feb. 28, with U.S. Solicitor General Elizabeth Prelogar arguing on behalf of the Biden administration in each case. In the oral arguments for the Biden v. Nebraska case, Prelogar claimed the pandemic gave Secretary of Education Miguel Cardona legal authority under the HEROES Act to forgive student debt. She said economic uncertainties associated with COVID-19 increased the risk that borrowers would default on their loans.

“Congress expressly authorized the Secretary (of Education) … in emergencies to provide financial relief to borrows (in the HEROES Act),” Prelogar said. “Loan forgiveness is a paradigmatic form of debt relief, and the Secretary within the heartland of his authority and in line with the central purpose of the HEROES Act in providing that relief here.” 

Jim Campbell, the Nebraska Solicitor General who argued on behalf of the plaintiffs in the Biden v. Nebraska case, said the student loan program did not fall under the HEROES Act. Campbell argued that the Act only allows the president to adapt existing programs to respond to emergency situations, not to launch new programs like the debt forgiveness plan.

“Now, to the extent the Court looks at the term ‘waiver’ and finds that that’s cause to read the phrase ‘waive or modify’ a little more broadly, it still doesn’t reach this program,” Campbell said. “(The Secretary of Education’s) not changing anything within them. He’s frankly ignoring what’s there and creating a brand-new program, and that’s not within the language of this statute.”     

Sonia Sotomayor, an associate justice on the Supreme Court, appeared to agree with Prelogar’s argument and said Biden’s program could help prevent millions of borrowers from defaulting on their loans in the face of the pandemic. 

“There’s 50 million students who will benefit from this,” Sotomayor said. “Many of them don’t have assets sufficient to bail them out after the pandemic. The evidence is clear that many of them will have to default. Their financial situation will be even worse because, once you default, the hardship on you is exponentially greater. You can’t get credit. You’re going to pay higher prices for things. They are going to continue to suffer from this pandemic in a way that the general population doesn’t.”

Chief Justice John Roberts expressed concern over the size of Biden’s loan forgiveness program, which is projected to cost the government approximately $400 billion over the coming decades. Roberts questioned whether or not a package of that size constituted “modifying” a current initiative under the HEROES Act.

“We’re talking about half a trillion dollars and 43 million Americans,” Roberts said. “How does that fit under the normal understanding of ‘modifying?’”

Associate Justice Elena Kagan, however, was sympathetic to Prelogar’s argument and said the language in the HEROES Act gave the Biden Administration the authority to forgive student loans.

“Congress doesn’t get much clearer than (the HEROES Act),” Kagan said. “We deal with congressional statutes every day that are really confusing. This one is not.”

Does the major questions doctrine apply to either case?

Representatives of both parties and the Court debated the major questions doctrine, which requires federal agencies to have “clear congressional authorization” prior to making major decisions of national, political or economic significance. The Court has relied upon the doctrine in a number of decisions over the past year, including their  decision to limit the authority of the Environmental Protection Agency which was handed down in June. The Court also referenced the major questions doctrine when striking down a mandate that would have required COVID-19 vaccines for federal workers.

Prelogar argued that the major questions doctrine does not apply to Biden’s loan forgiveness program because the doctrine is only applicable to government regulations and does not apply to programs which solely bestow benefits to Americans.

“The reason we (on behalf of the Biden Administration) think (the major questions doctrine) shouldn’t apply in the same way to benefits programs is because it doesn’t involve that corresponding tradeoff on individual liberty interests,” Prelogar said. “The Court in some of the prior cases in this area has expressed concern that if the government is claiming an extraordinary power to regulate, that means it can encroach on the lives of individuals, the affairs of businesses, and quite directly impose onerous burdens on them.”

Roberts appeared to disagree with Prelogar’s argument. He questioned the fairness of the program by comparing a hypothetical college graduate to a small business owner who did not have a college degree but instead took out a loan to start their business. He said the graduate may have their student loans forgiven while the business owner would not see any relief. Roberts suggested a major plan like this should be voted on and amended by Congress and should not be pushed through by the executive branch without congressional oversight.

“(The Court likes) to usually leave situations of that sort, when you’re talking about spending the government’s money, which is the taxpayers’ money, to the people in charge of the money, which is Congress,” Roberts said. “Now why isn’t that a factor that should enter into our consideration under the major questions doctrine again, where we look at things a little more strictly than we might otherwise when we’re talking about statutory grants of authority, to make sure that this is something that Congress would have contemplated?” 

Do the plaintiffs have the legal standing to sue Biden? 

Prelogar also argued that the coalition of states suing the Biden administration in Biden v. Nebraska lacked the authority to do so. She noted that the states were asserting that the Higher Education Loan Authority of the State of Missouri (MOHELA) had been harmed by the loan forgiveness plan even though MOHELA did not file a claim. 

MOHELA is a loan servicer that collects student debt payments on behalf of the federal government. Missouri, one of the six plaintiffs in the Nebraska suit, claimed the state would be harmed by Biden’s program because the state receives a portion of MOHELA’s revenues to fund higher education programs. If MOHELA is collecting less debt, Missouri colleges and universities might receive less funding, the state contends.

Prelogar said if MOHELA wanted to sue the Biden administration, that would be one thing, but for the state of Missouri to do it on behalf of the organization lacks standing. 

“(The states) principally assert harm to a separate legal person, MOHELA, that could sue in its own name but has chosen not to do so, and the states’ asserted harms to their tax revenues are self-inflicted and indirect,” Prelogar said.   

Justice Samuel Alito seemed to disagree with Prelogar’s claim. He argued even though MOHELA is a separate entity, the states still have standing to sue the president. 

“Injury in fact is a factual question,” Alito said. “So I understand a big thrust of your argument to be that Missouri lacks standing because MOHELA is separately incorporated. But why should that formal distinction govern the determination of injury in fact?”

Justice Sotomayor appeared sympathetic to Prelogar’s contention. She said that it did not appear that the state of Missouri was at all impacted by MOHELA’s financial gains and losses. 

“There is on paper no financial obligation by the state or loss to the state by anything MOHELA does or anything it gets,” Sotomayor said. “It’s just very hard for me to say that there is an interest sufficient for the state to speak on behalf of an entity who has a right to sue or be sued.” 

Campbell argued that MOHELA functioned primarily as a state agency and the state of Missouri is advocating on behalf of MOHELA’s interests in the case.  

“(Missouri) speaks for MOHELA,” Campbell said. “The state represents MOHELA’s interests.”  

Justice Amy Coney Barrett also questioned why MOHELA didn’t file the suit instead of the state government. 

“If MOHELA is an arm of the state, why didn’t you just strong-arm MOHELA and say you’ve got to pursue this suit?” Barrett asked. 

Campbell responded by saying that the decision for MOHELA to not directly sue was a “matter of state politics.” 

The court is expected to release its final opinion on both cases by the end of June. 

Daily Staff Reporter George Weykamp can be reached at