“What the Supreme Court is really limiting here is creative, broad interpretations of statutes,” said Nathan Arnold, senior policy adviser at EducationCounsel, a Washington, DC consulting firm. Prior to that, he spent eight years in the Department of Education under both the Obama and Trump administrations, where he served as Chief of Staff to the Acting Undersecretary of State and senior policy adviser at the Office of Post-Secondary Education.
Arnold said he thinks the Supreme Court’s recent decision in the EPA case makes it clear that federal agencies “have a new hurdle to overcome” before taking certain action.
“I wouldn’t be surprised if this decision affects their calculus on the loan forgiveness issue,” Arnold added, citing the Biden administration’s attorneys.
Recent Supreme Court rulings speak out against aggressive agency action
In the most recent EPA case, the Supreme Court reviewed an Obama-era climate rule (never passed by the Biden administration) that relied on a provision of the 1970 Clean Air Act. The Conservative majority said the rule exceeded the EPA’s powers under the law, with the court specifically citing the so-called “major questions doctrine.”
In previous cases during this term, the conservative majority of the Supreme Court rejected requests for a regulator by agencies because the court believed it was an issue of enormous economic and political importance — and the judges concluded that Congress the Authority had not clearly vested wide-ranging authority over the subject.
Never had the Supreme Court handled the Big Questions doctrine more openly than in this year’s climate change case, citing it by name for the first time in a formal majority vote.
Earlier in August, in a case blocking the government’s moratorium on evictions, the court wrote: “We expect Congress to speak clearly when authorizing an agency to exercise powers of enormous ‘economic and political importance.'” ( The three Liberal judges disagreed from the unsigned order.)
The court used similar language in January when the Conservative bloc ruled against it Biden administration vaccination mandate for large employers.
What the Student Loan Cancellation Act Says
An executive order directing the Secretary of Education to largely eliminate federal student-loan debt would be unprecedented – and As such, questions as to whether Congress has clearly given the Executive Branch authority to do so have yet to be tested in court.
Biden first urged Congress to take action to cancel the student Debt instead of venturing yourself into murky legal territory. But Democrats probably don’t have the votes to pass student debt relief legislation in the Senate, despite the support of key party members like Senate Majority Leader Chuck Schumer and Massachusetts Sen. Elizabeth Warren.
Last year, Biden directed attorneys for the Departments of Education and Justice to investigate whether he actually has the authority to largely cancel federal student-loan debt. The administration has not disclosed these results.
But when major issues doctrine comes into play, courts might find that if Congress had intended for the power to be used so extensively as to largely eliminate student loan debt, it would have said so more clearly in the statute.
Two of the authors of the memo that was sent to Warren were unavailable to comment on this story. The third author, Toby Merrill, has since joined the Department of Education as Deputy General Counsel and referred CNN to the Department’s spokesman.
Luke Herrine, an assistant law professor at the University of Alabama who previously worked on a legal strategy for student debt relief, also said he believes Congress has given the Department of Education “several powers of student debt relief.”
But given recent Supreme Court rulings, Herrine could see current justices striking down executive action to do so broadly. Traditionally, courts have turned to federal agency when questions arise about an ambiguous law. But there has been a shift.
“To me, the courts are basically saying, ‘We’re going to have the first word,'” Herrine said.
Another factor that could come into play is that the Department of Education has made very limited use of the power to forgive student debt. She almost never used the power until the Obama administration faced pressure from activists like the Debt Collective — where Herrine previously worked — to forgive the debt of borrowers cheated by for-profit colleges under a rule dubbed the Borrowers’ Defense is known for repayment.
A long way to the Federal Court of Justice
Even if Biden decides to largely cancel federal student debt, that doesn’t mean a lawsuit would be filed or that the case would eventually make it to the Supreme Court.
First, it is unclear who would be entitled to bring a case, a procedural threshold that requires a plaintiff to have suffered an injury warranting the action. It’s unlikely a borrower who didn’t qualify for forgiveness, but may be a student loan administrator or collection agency, according to Arnold, who also said that typically anyone who would lose money as a direct result of the cancellation would make a claim could have .
Once the standing hurdle is cleared, the case would first be heard by a district court — which may or may not issue an injunction to prevent the annulment before a final decision is made on the hypothetical case.
The case would then likely be referred to an appeals court, which could have the final say, given the small number of cases the Supreme Court handles.
But if the Biden administration forgives student debt with an executive action and that move is challenged, lower court judges will consider what the Supreme Court has said in its previous cases involving the agency’s power when it has the authority assessed by the Ministry of Education.