December 5, 2023

After months of uncertainty for borrowers, the Biden administration’s student loan debt cancellation program, which offers $10,000 in relief to those making up to $125,000 and $20,000 to Pell Grant recipients, went before the Supreme Court on Tuesday in oral arguments that dragged on for more than an hour after the scheduled time.

The justices heard two cases with the potential to limit the president’s pardon efforts, one Biden vs. Nebraskafrom a collection of states that say the program hurt their potential revenue, and one, Department of Education v. Brownfrom a pair of debtors who believed that they should have received some or more relief, or

But much of the argument did not turn on the merits of these cases. Instead, it focused on whether the plaintiffs had standing to sue in the first place, on the particular injury that is claimed as a cause of action. The state of Missouri argued that it would be harmed by debt forgiveness by the loss of revenue to the Missouri Higher Education Loan Authority (MOHELA), a quasi-state lender. And the debtors argued that they suffered because the lack of notice and comment period denied them the opportunity to push for even more debt relief for themselves.

Both claims were met with skepticism by judges. In the case of the states, several liberal-leaning members of the bench appeared to be persuaded by arguments that MOHELA was an entity distinct from the state of Missouri.

Deputy Elena KaganováDeputy Elena Kaganová“Ordinarily, we don’t allow one person to step into another person’s shoes and say, ‘I think that person has suffered harm,’ even if the harm is very great,” Justice Elena Kagan said.

Although there was general agreement that MOHELA itself could sue, even conservative justices questioned Missouri’s standing. Judge Amy Coney Barrett questioned why the state didn’t force MOHEL to file a lawsuit.

Associate Justice Ketanji Brown JacksonAssociate Justice Ketanji Brown JacksonStanding in Brown a case was also discussed, with plaintiffs arguing that if they had been given a chance to comment on the debt relief program, a more generous program might have been adopted instead. It was pointed out that the remedy sought, i.e. termination of the program, would not benefit them and would be worse off in the case of a claimant who received $10,000 but wanted more.

J. Michael Connolly, an attorney for the plaintiffs, argued that if the forgiveness program were canceled, the Biden administration could use the Higher Education Act as a source of authority to forgive more debt. Justice Ketanji Brown Jackson expressed doubt that this would ever happen, and Justice Sonia Sotomayor called the stance “so utterly illogical.”

In parallel with the issue of legal standing, the merits of the cases were discussed. Several justices have raised the major questions doctrine, the principle that rules on “major issues” of economic or political importance require “clear congressional approval.” Solicitor General Elizabeth Prelogar argued that the HEROES Act of 2003 gives clear authority for debt cancellation by authorizing the Secretary of Education to “waive or modify” the provisions related to Title IV of the Higher Education Act that authorize student loans. The justices explored the meanings of “waive” and “modify,” including the idea that the words mean small changes and the idea that eliminating student debt went beyond changing to create a new program.

Several conservative justices questioned the idea that Congress had approved a program of such size and scope — the impact has been repeatedly described as “half a trillion dollars.” Justice Clarence Thomas questioned whether the forgiveness of half a trillion dollars of debt was equivalent to an allocation of that amount, and Justice Neil Gorsuch suggested that the forgiveness program was an unfair gift to people who took out college loans, favoring them over people who took out bank loans instead to start a business.

Joshua Rovenger, a fellow at the Student Borrower Protection Center, which filed an amicus brief in support of the petitioners, was pleased with how the arguments went.

“Overall, I see this as a good day for student loan borrowers,” he said. “They have an incredible advocate in the lead attorney, and several judges have really emphasized how this affects borrowers and how it’s so necessary.”

He described himself as cautiously optimistic about the outcome of the case.

Justin Draeger, president and CEO of the National Association of Student Financial Aid Administrators, said the arguments underscore how far apart the sides are in the debate over student financial issues.

“Whether or not this one-time student loan forgiveness happens, it will still be a one-time victory and won’t do much for this year’s student loan borrowers or next year’s borrowers,” he said. “And the more I talk to people on Capitol Hill, the more I wonder if both sides of the aisle will be able to come together on the other side of that aisle for any long-term changes to college affordability and student loan issues that they’re going to need.”

However, those whose loans can be forgiven have their financial fate hanging in the balance. The court is expected to issue a decision by the end of June.

Jon Edelman can be reached at

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