The Supreme Court invalidated President Joe Biden’s student debt relief program Friday in a 6-3 opinion that encapsulates the conservative majority’s threats to Democratic initiatives, democracy and governance.
The opinion, written by Chief Justice John Roberts, is just the latest example of how the Court has invented a series of made-up rules about interpreting statutes that trump the actual words in the statute itself. According to Justice Elena Kagan, who wrote the dissent, “the Court puts its own heavyweight thumb on the scales.”
The student debt relief program worked as follows. The federal government is a lender to some student borrowers, issuing loans that allow the student borrowers to pay for their education. Federal law authorizes the Secretary of Education to administer these programs. Among other things, federal law grants the secretary the authority to “compromise, waive, or release any right, title, claim, lien, or demand” as the secretary administers the Department’s loans.
Congress later gave the secretary the specific authority to “waive or modify any statutory or regulatory provision applicable to the student financial assistance programs … as the Secretary deems necessary in connection with a war or other military operation or national emergency to provide the waivers or modifications authorized by paragraph (2).” Paragraph 2 authorizes the secretary “to waive or modify any provision … as may be necessary to ensure” that certain objectives are fulfilled. This includes ensuring that “affected individuals are not placed in a worse position financially.” An affected individual is someone who suffered a financial hardship due to a national emergency, and a “national emergency” is any “national emergency declared by the President of the United States.”
That’s a lot of statutory text, but the core of it is this: The secretary has authority to “waive or modify any” provision that applies to student borrowing as the secretary deems necessary with a national emergency. There’s no question Covid-19 was a national emergency; then-President Donald Trump declared it to be in 2020. And Congress defined a “national emergency” in the relevant statute to mean a “national emergency declared by the President.” The Secretary of Education also found that low-income borrowers were in a worse position financially because of the Covid-19 pandemic; that’s not really in dispute either.
So the question boiled down to whether the law, which authorizes the secretary to “waive or modify” the terms of the Department of Education’s student borrowing program, allows the Secretary to forgive some of the Department’s debts. And … isn’t that what “waive” means? To waive something is to “abandon, renounce, or surrender,” according to Black’s Law Dictionary.
The Court’s decision to hold otherwise in the student debt relief case – and discount what the law actually says – is part of a pattern of what Kagan had described in an earlier opinion from this term as the latest “pop-up clear statement rule.” Clear statement rules are judge-made rules that direct judges to occasionally ignore the plain meaning, and even the best meaning, of the words in a statute.
Last term, the Court invoked what it described as something of a clear statement rule in a series of cases, in which it invalidated actions taken by the Biden administration: the test or vaccinate policy for workplaces, the eviction moratorium designed to contain the spread of Covid-19 and the Clean Power Plan that was structured as an incentive to rely on cleaner forms of energy. In those cases, the Court described the clear statement rule it was applying as the “major questions” doctrine – the idea that when a government agency pursues a policy or addresses an issue of major national significance, the court can ignore what the relevant statute actually says if Congress has not specifically and explicitly authorized the agency’s actions.
As Kagan has argued, the doctrine allows the Court to “substitute its own ideas about policymaking for Congress’s.” That’s not how government should work, and as Kagan explained, it is also “not how the Constitution thinks our government should work…”
The student debt relief case is the latest decision that shows the conservative majority of the Supreme Court is deploying whatever tool it can come up with to invalidate what it considers bad policy. No really; in order to justify applying the major questions doctrine, the Court quoted a writing that described how “personal and emotionally charged” the student debt relief issue is. That’s not how democratic government is supposed to work; the unelected justices aren’t supposed to veto policies they don’t like just because the policies strike the justices as unwise or significant.
But that’s what the conservative majority did, acting as Trump intended when he nominated three of the justices in this cohort. Trump’s former White House Counsel Don McGahn declared the administration’s judicial appointments were part of “a larger plan.” He told an audience at the Conservative Political Action Committee in 2018 that “there is a coherent plan here where, actually, the judicial selection and the deregulation effort are really the flip side of the same coin.” That is, they were appointing justices to defeat regulatory efforts, or at least the regulatory initiatives they don’t care for.
And that’s just what they did. And it’s what they’ll continue to do so going forward.