by As the Supreme Court heard arguments this week about President Joe Biden’s student loan debt relief plan, judges asked about the definition of relevant legal language and whether plaintiffs were entitled to sue, as well as constitutional questions about the separation of powers. These are all typical matters to be discussed at a judicial review. But the conservative judges also spent a lot of time asking about a more nebulous issue: fairness.
The fairness issue surfaced during the Department of Education’s disputes against Brown, a case in which two individual student borrowers challenged the Biden plan because they did not qualify for some or all of the relief offered.
“Since we are dealing with an individual borrower or potential borrower case, I think it’s appropriate to consider some of the fairness arguments,” Chief Justice John Roberts said.
Roberts then presented a hypothetical scenario involving two high school graduates, neither of whom can afford college. One takes out a loan to go to college while the other gets a loan to start a lawn care business. The one who goes to college, “We know that statistically,” Roberts said, “will do significantly better financially over the course of a lifetime than the person who doesn’t.”
“And then the government comes along and tells this person, ‘You don’t have to pay your loan,'” he said. “No one is telling this person trying to build the lawn service business that they don’t have to pay their loan.”
For a court that often pretends to be above the political fray, this is reasoning that appears to be purely political. The court does not judge whether the guidelines are fair. In fact, the Chief Justice conceded that his opinion on fairness doesn’t matter.
“Maybe you have an opinion on that [the] That’s fair, and they don’t count,” Roberts told Attorney General Elizabeth Prelogar. “I may have opinions about whether that’s fair, and mine don’t count.”
So why is the Chief Justice wondering about the fairness of the government’s plan?
The answer is that Roberts tried to squeeze the political debate about fairness into the court’s so-called “big questions” doctrine.
“We would normally like to leave situations of this kind in the hands of the people who are responsible for the money, which is Congress,” Roberts said, when it comes to spending the government’s money, which is taxpayers’ money.
“Why isn’t that a factor to factor into our reflections on our main issues – where we’re looking at things a little more strictly than we would otherwise when we’re talking about statutory empowerments to make sure this is something the Congress would do? Have you thought about that?”
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The Big Questions doctrine has in recent years become a favored tool of the court’s conservative supermajority to quash executive branch actions it dislikes. The doctrine states that government regulations of “tremendous economic and political importance” must be expressly approved by Congress.
The Major Questions doctrine, as currently stated by the High Court, “directs the courts not to recognize the plain meaning of a statute by the normal instruments of interpreting the law, but to require an express and specific approval of Congress for certain agency policies”, write Daniel Deacon and Leah Litman of the University of Michigan Law School in a draft of The New Major Questions Doctrine.
The Supreme Court used the doctrine in recent cases involving the Biden administration’s COVID-19 immunization mandate for large employers, the moratorium on pandemic clearances, and in the 2022 case of West Virginia v. Environmental Protection Agency, not yet proposed regulations limiting greenhouse gases , emissions in power plants were recorded.
“The EPA claimed to have discovered an unheralded power that represents a transformative expansion of its regulatory agency in the vague language of a long-standing but seldom-used law designed to be a stopgap,” Roberts wrote in the West Virginia case. “This discovery enabled her to pass a regulatory program that Congress had conspicuously refused to pass. Given these circumstances, there is every reason to “hesitate before Congress decides to give the EPA the authority it claims.”
The main problem here is the concern about the separation of powers – namely, that Congress is the right place to adopt economically and politically significant regulations. As Roberts explained of the Biden administration’s possible actions on greenhouse gas emissions, in this case Congress did not enact the exact regulatory regime.
However, the student loan forgiveness program is on a pretty strong footing in terms of legal approval.
The HEROES Act of 2003 allows the Secretary of Education to “repeal” or “modify” the terms of student loans held by the federal government during a declared national emergency. The COVID-19 pandemic is one such emergency. And the Secretary of Education waived and modified the terms of certain student loans under legislation passed by Congress, granting up to $20,000 in forgiveness.
During arguments over whether the principal issues doctrine should apply to the student loan relief plan, the conservative judges questioned whether debt relief meets the definition of waiver or modification and whether a benefits program is the same as a regulatory measure. Prelogar argued that Congress gave the Secretary of Education authority to waive or change some or all of the terms of student loans.
Roberts’ introduction of the political issue of fairness then served to extend the major issues doctrine beyond whether Congress authorized the Secretary to issue some credits. Even if Congress approved the waiver or modification of the loan terms, has it considered whether it would be fair? And wouldn’t Congress be the only body that can judge fairness?
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“I don’t see any evidence that they took away the person trying to start the lawn service because he can’t afford college — I didn’t see any evidence that they considered him,” Roberts said in response to Prelogar .
The other conservatives followed suit. Judge Samuel Alito contacted the attorney general, wanting to know if the administration’s education secretary thought the plan was fair.
“Why is it fair?” Alito asked. “Why isn’t the answer ‘searched’? Maybe it was intentional, but why?
“It was fair, because without that relief, there is no disputing that there will be millions of student loan borrowers who cannot pay their student loans,” Prelogar replied. “You will default, and the HEROES Act was designed specifically for that situation. That’s Congress telling the secretary, ‘You don’t have to let this happen.’”
Judge Brett Kavanaugh stated that the plan would produce “big winners and big losers,” and he speculated that Congress could “try to hear all about all of this and include all of this.”
“Should any of that factor into our considerations of whether to forego a broad reading or a narrow reading?” Kavanaugh said.
“No, I don’t think that should play a role in interpreting the statute,” Prelogar replied. “The court must examine this text on its own terms.”
Prelogar urged the conservative justices to adhere to the confines of the Big Questions doctrine they had articulated in previous cases, rather than attempting to broaden the doctrine to include whether Congress fully considered the fairness of the measures authorized by its statutes .
The main questions of the teaching were criticized as a judicial seizure of power, allowing conservatives to strike down executive branch actions they don’t like without reconsidering their precedents. This whole series of questions during the student loan argument underscored this criticism.
Confronted with policies that do not quite fit within the confines of the current Big Questions doctrine, the conservative judges managed to amplify them.
