Will the Supreme Court read the Heroes Act (authorizing Biden’s student loan relief) as written?

If you listened to the recent Supreme Court oral argument about President Biden’s student borrowers loan relief plan, you could be forgiven for thinking that most of the Republican-appointed justices simply don’t like the policy and are searching for a basis to reject it, rather than accepting the long-established limitations on their role as judges.

The legal issues before the court are straightforward: whether the six Republican-led states and two individuals trying to overturn the relief plan have the legal right (known as “standing”) to challenge it in court, and if so, whether the Heroes Act enacted by Congress in 2003 authorizes the secretary of Education to adopt the plan.

It would be hard to dispute with a straight face that the plain language of the law authorizes the plan. Congress has granted the Education secretary the power to provide relief from student loans made under Title IV of the Higher Education Act of 1965. For example, in 2001, after the Sept. 11 attacks, Congress authorized the Education secretary to “waive or modify any statutory or regulatory provision applicable to” such student-aid programs to ensure that terrorist attacks do not leave borrowers in a worse position in relation to their student loans. Two years later, in the Heroes Act, Congress expanded the secretary’s “waiver or modif[ication]” authority “as the Secretary deems necessary in connection with a war or other military operation or a national emergency.”

Both Republican and Democratic administrations have found the national emergency resulting from the COVID-19 pandemic warrants the secretary’s exercise of that broad authority. In March 2020, after President Trump declared a COVID-19 national emergency, his Education Secretary, Betsy DeVos, used her Heroes Act authority to defer interest accruals and repayment obligations on student loans held by the Education Department, irrespective of any borrower’s ability to pay. DeVos, and later Biden’s Education Secretary Miguel Cardona, extended that deferral. The cost has been roughly $150 billion so far. 

In August 2022, Cardona decided the deferral should end. He also concluded that, as a result of the pandemic, when student loan repayment obligations resume, many low-income borrowers will be “at heightened risk of loan delinquency and default.” He therefore extended the deferral to the end of 2022 and, to ensure that borrowers affected by the pandemic are not “in a worse position financially as a result of the [COVID-19] pandemic,” he granted up to $10,000 in loan relief to certain lower-income borrowers and up to $20,000 to Pell Grant recipients. It is estimated that 90 percent of the borrowers covered by this plan earn less than $75,000 per year. So far, 26 million people have applied for this relief.

Six red states and two individuals challenged the student loan relief plan. They allege the cost could be $400 billion. But none of them has been injured in a manner that is fairly traceable to the plan. The Republican-appointed justices are normally sticklers when it comes to insisting that the absence of such injury means a plaintiff does not have legal standing to file a lawsuit. They do not allow a person to sue merely because she disagrees with an executive action. Yet, at the oral argument, Chief Justice John Roberts expressed concern that dismissing the plaintiffs’ claims here for lack of standing would leave “no role for us to play in this.” That comment is inexplicable. It is a basic principle of our constitutional system that the courts do not have a role to play on the issues in any lawsuit that the plaintiffs do not have standing to litigate.

These justices also normally insist that they stick to the plain language of a statute. They say they are “textualists” and do not depart from the text. Here, that would mean upholding the loan relief plan because the Heroes Act authorizes the Education secretary to “waive or modify” the loan obligations. As Justice Brett Kavanaugh recognized at the oral argument, “waive” is an “extremely broad word.” It means completely eliminating an obligation. And no one argues that granting the secretary the authority to waive student loans infringes on anyone’s constitutional rights. Kavanaugh aptly inquired, “Why not just read that [word “waive”] as written?”

Obviously trying to find an answer to that question, Roberts and Justice Samuel Alito invoked the so-called “Major Questions Doctrine” the six Republican-appointed justices created just last June when they rejected the Clean Power Plan adopted by President Barack Obama’s Environmental Protection Agency (EPA) to protect our environment and reduce global warming. That new (and untenable) “doctrine” permits the court to overrule executive action whenever a majority of the court believes the “breadth of the Authority” asserted and its “economic and political significance” “provide a ‘reason to hesitate before concluding that Congress’ meant to confer such authority.” Alito asked at the recent oral argument whether this doctrine protects the separation of powers. But it would do the opposite when it comes to the loan relief plan. It would replace the Heroes Act — enacted by our elected Congress to give the Education secretary the authority to address a national emergency — with the policy preference of the unelected Republican-appointed justices.

Roberts asked whether the Heroes Act language was “seriously considered and debated and was a matter of political controversy before Congress.” That has never been a requirement to apply legislation. Making it a requirement now would be antithetical to the Republican-appointed justices’ dogma that courts must enforce the text of a statute regardless of its legislative history.

Most of the Republican-appointed justices made their disagreement with the loan relief policy clear. For example, Justice Neil Gorsuch questioned the secretary’s “macroeconomic” expertise and commented that Cardona did not document the “costs to other persons in terms of fairness” such as “people who have paid their loans” or “are not eligible for loans in the first place.” Roberts asked whether consideration was given to individuals who borrow for reasons other than paying for their education. Alito inquired, “Why is it fair to the people who didn’t get arguably comparable relief?” And Kavanaugh commented, “there will be … big winners and losers, relatively speaking, if the executive branch has this kind of authority.”

But Congress made the judgment as to fairness and winners and losers when it specifically authorized the secretary to “waive or modify” student loan obligations in a national emergency. Congress regularly makes such judgments whenever it decides to whom to provide benefits and who should pay the costs. If the Republican-appointed justices now believe they can upend the balance our elected representatives struck in the Heroes Act, how is that consistent with our democracy? Can these justices now overrule the application of any law simply because they believe it is unfair? 

Michael J. Dell is a New York lawyer who litigates and writes about constitutional issues.