Forgiving student loans and the court

Have you ever heard of a legal theory called the “major questions doctrine?”

Most people, including lawyers and law students, have not.  It’s a made-up theory.  It was crafted five or six years ago after the extreme right aired complaints on talk radio, blogs, and cable television about the administrative state.  They wanted to undermine the authority of the federal administrative agencies, which they believe were disloyal to the Trump administration.  They hoped to rein in the federal government, especially the so-called alphabet administrative agencies such as the F.B.I, the I.R.S., the F.A.A., and so on.

Legislators do not craft laws with precision.  If they did, every bill would be thousands of pages.  The agencies try to foresee future developments that the government might have to grapple with when developing regulations.

For a long time, complaints mainly from the extreme right have attacked the administrative state for undermining American democracy.  And yet, without the above-named agencies doing their work, the federal government could not operate in the twenty-first century.  These agencies develop regulations based on a bill passed by Congress and then implement them.  It is part of the rule of law.

The Supreme Court may use the major questions doctrine as it deliberates whether President Biden has the authority to relieve up to 26 million Americans of their higher education debt, possibly including many Islanders.  It would not be the first or the last time that the Court has adopted or created a legal theory or judicial test.

Let me put this in context.  Many years ago, an assistant district attorney told me how delighted he was to have finally paid off his college and law school loans.  He was 55 years old.  That was at a time when it was far less expensive to attend college or graduate or professional school.  It is much worse now: a recent Washington Post story highlighted the plight of  a 72-year-old Army veteran and others still paying for student loans from the 1970s.

Today, the total amount of higher education debt owed by Americans is $1.757 trillion, most of it to the United States government through its Pell Grants.

During the 2020 campaign, candidate Joe Biden promised to help people burdened by these debts.  Last August, he announced a $400 billion program to relieve millions of Americans of their heavy student debt.  Eligible people must demonstrate that their income is less than $125,000 a year (or $250,000 for a couple).  If they received a private loan, they may be qualified to receive a $10,000 reduction or if a Pell Grant, $20,000.

If implemented, the program would eliminate the debt of 20 million people and cut in half the debt owed by the rest.

But Biden created the program with the stroke of a pen.  He knew a divided Congress would not act so he relied on the 2003 Heroes Act, passed during the presidential administration of George W. Bush just after the 9/11 terrorist attacks.  The law allows the president to waive or modify loan programs during a national emergency.  Using the same measure, in 2020, the Trump administration allowed for a limited moratorium on loan repayments when the Covid pandemic hit the U.S.

Within a month of Biden’s executive order, Republican attorneys general from six states sued the federal government, claiming that the president lacked the authority to create the student loan relief plan and that only Congress possesses the power to implement it.  The lawsuit reached the Supreme Court on February 28.  During oral argument, the six conservative justices were skeptical about Biden’s assertion that he has the power to implement the program because the issue came under the major questions doctrine.

The Court’s six conservative justices are familiar with the doctrine: they used it just last year to overturn the authority of the Environmental Protection Agency under the Clean Air Act to regulate greenhouse gas emissions.  In West Virginia v. the E.P.A., led by Chief Justice John Roberts, they narrowed the way the E.P.A. regulates emissions by ruling that the major questions doctrine requires Congress to specifically lay out in detail what the E.P.A. may do.  The executive branch may not act alone. The three liberal justices dissented.

In 2017 when he was on the D.C. Circuit Court of Appeals, now Justice Brett Kavanaugh noted  how imprecise the major questions doctrine is: he wrote, in dissent, that “determining whether a rule constitutes a major rule sometimes has a bit of a ‘know it when you see it’ quality.”

So, the fate of the Biden’s administration attempt to relieve millions of Americans of higher education debt may well mirror the outcome of the E.P.A. case from last year.  This will leave the 26 million Americans with their debts in place.

Jack Fruchtman, who lives in Aquinnah, is the author, most recently, of “American Constitutional History,” now in its second edition.