Student loans unforgiven: so much for textualism: Nebraska v. Biden

 Student loans unforgiven: so much for textualism: Nebraska v. Biden

Last year, the Secretary of Education established the first comprehensive student loan forgiveness program, invoking the Higher Education Relief Opportunities for Students Act of 2003 (HEROES Act) for authority to do so. The Secretary’s plan canceled roughly $430 billion of federal student loan balances, completely erasing the debts of 20 million borrowers and lowering the median amount owed by the other 23 million from $29,40 0to $13,600. See ibid.; App. 243. Six States sued, arguing that the HEROES Act does not authorize the loan cancellation plan. We agree."

C.J. John Roberts for the 6-3 majority in Biden v. Nebraska - the "student loan forgiveness case"

One might  think that a court faced with a challenge to the Secretary of Education's student loan forgiveness program would celebrate it as a welcome effort to provide relief for debt-burdened youth after the financial and emotional traumas of the Covid 19 pandemic that took nearly one million lives.  But NO. Not this Court, not the conservative supermajority who would depart from their usually boldly asserted textualism and find that the so-called HEROES Act did not provide support for the President to whom the Secretary of Education responds.  The statute provides that the Secretary 

 “may waive or modify any statutory or regulatory provision applicable to the student financial assistance programs under title IV of the [Education Act] as the Secretary deems necessary in connection with a war or other military operation or national emergency.” 20 U. S. C. §1098bb(a)(1)

One can read the entire literature on the law of causal relationship and not find broader language than "in connection with...a national emergency". But the right wing governors of Nebraska and Missouri, among others, asserted that their states were harmed by a measure that provided substantial relief to their citizens.  Some - like conservative professor William Baude  as amicus found the states to have suffered no real injury - therefore lacking standing.   But the usual suspects - the right wing think tanks were joined by establishment conservatives opposed the measure, like former Circuit  Judge Michael W. McConnell  and [recently deceased] Bush 43 White House Counsel C. Boyden Gray  joined the conservative  hue and cry .  

The McConnell brief - argued as amici that spending laws must be narrowly construed.  Even one liberal law professor Jed Shugerman, agreed that the measure was unlawful.  Shugerman in an article in The Atlantic and in a later amicus brief found the relationship between the pandemic emergency and the debt  relief plan to be "pretextual" - not a faithful execution of the laws. He offered  an alternative route - the Higher Education act of 1965.  The six conservative justices predictably did not take that bait.  Biden will likely try that route now.

But the deeper criticism of the court here is that for all its purported textualism, the text doesn't count for much when the text doesn't play well to the celebrants of the "unitary executive" when the executive is a Democrat.  The traditional judicial virtues such as deference to the presumed good faith  of  Presidential action can be set aside by the newly minted judicial aggrandizement dubbed by the six Republican justices as the "Major Questions doctrine".  For that the justices demand not a President's good faith and  textual support but a "clear" delegation of authority by Congress.  The  unelected justices should, instead, demand of themselves clear textual authority before daring to set aside actions of the elected branches.

Some are quick to rebut that assertion - pointing to the activism of the Warren Court of the 1950s and 1960s.  But the two judicial thrusts are falsely equated.  The Warren Court was grounded in the century of state laws undercutting the post-Civil War Amendments abolishing slavery, promising equal protection, and the right to vote. This majority is rooted in its opposition to the modernization of the national government which began via the post Civil War Amendments and then again with the progressives, and most contentiously now Franklin D. Roosevelt's program to bring the nation out of the 1929 depression.

-  George Conk July 2, 2023