On June 30, in one of the last cases the Supreme Court decided this past term, the conservative majority again showed its power when six justices prohibited President Joe Biden from eliminating college student loans. His program would have given relief to some 43 million Americans, half of whose loans would have been completely wiped out. It would have allowed former students who have federal loans to disregard up to $20,000, and $10,000 for those with non-federal loans.
Biden set the standard that eligible borrowers would have had to have paid their loans for at least 10 years, and earn less than $125,000 a year.
But in Biden v. Nebraska, Chief Justice John Roberts ruled that the president lacked the authority to issue an executive order forgiving some $400 billion in college and university loans (the total amount of such loans is more than $1.7 trillion). The case involved a complaint filed by attorneys general in six states.
Biden claimed he possessed the authority to issue the order because of a 2003 law passed in the wake of the September 11 terrorist attacks. Known as the Higher Education Relief for Students (or HEROES) Act, the law allows the secretary of education to “waive or modify any statutory or regulatory provision” concerning the student loan programs during a national emergency. Because of the COVID-19 pandemic, in 2020, Secretary Betsy DeVos in the Trump administration suspended student loans.
Writing for the court, Chief Justice Roberts held that the president did not merely modify the program. He actually canceled it. Roberts cited a relatively new legal theory known as “major questions doctrine.” It means that the president of the United States may not change or cancel a federal program unless he explicitly has congressional authority to do so. In light of the end of the pandemic, Robert wrote that Biden no longer had the authority to suspend or cancel student debt.
The major questions doctrine, which I explained in an earlier column, was first used by the Chief Justice last year in West Virginia v. Environmental Protection Agency. He ruled, again with the same six-to-three majority as in the student loan case, that the agency lacked the authority to regulate greenhouse gases because only Congress had the power to combat climate change.
Although the court has cited the major questions doctrine two times, it is only about seven or eight years old. According to law professor Allison Orr Larsen, “the word ‘doctrine’ to describe the major questions concept was first used by law professors and then bandied about on blogs, quickly picked up by advocacy groups on Twitter, and used as a rallying cry in opinion pieces and programming by those seeking to challenge the administrative state. In 2016 — long before it was anointed a ‘doctrine’ by the Supreme Court — the ‘major questions doctrine’ was featured by name in the annual Federalist Society conference.”
The term “administrative state” refers to the various agencies that have developed in the U.S. government since the 19th century. They usually go by their initials, such as the ICC (Interstate Commerce Commission), the IRS (the Internal Revenue Service), the EPA (the Environmental Protection Agency), and so on. Conservatives and conservative groups like the Federalist Society, which helped President Donald Trump pick the three conservative justices he chose for the Supreme Court, refer to the administrative state with the derogatory term “the deep state.”
Their position during the Trump years was that thousands of federal workers in “the deep state” opposed the president’s policies and worked hard to undermine them. One way for conservative groups to combat this is to eliminate or reduce the authority of administrative agencies like the EPA. Another is to force the president to adhere to only the will of Congress when a so-called major question arises.
But it is difficult to define a major question. Even Justice Brett Kavanaugh noted this when he was serving as a federal appellate judge in 2017. He wrote that he agreed with the concept, but contended that “determining whether a rule constitutes a major rule sometimes has a bit of a ‘know it when you see it’ quality. So there inevitably will be close cases and debates at the margins about whether a rule qualifies as major.” He joined Chief Justice Roberts’s opinion overturning student debt relief.
As it now stands, indebted former college and university students will have to repay their loans starting in October. The Boston Globe recently suggested a few options that may help some of them: “The federal government has a public service loan forgiveness program for those working in government or nonprofits. Massachusetts offers loan repayment assistance to healthcare professionals working in underserved communities. The state legislature in the 2023 budget allocated money to repay up to $7,500 in student loans for public college graduates who commit to working four years as public school teachers, and that initiative will launch soon.”
Perhaps other ideas will develop over the next few years to assist the massive burden former students carry that will satisfy their loan repayments. Meantime, we can rest assured that attacks on the administrative state from the right will continue.
Next in the series: The independent state legislature theory.
Jack Fruchtman, who lives in Aquinnah, is preparing the fourth edition of his “Supreme Court and Constitutional Law.”
