As the Supreme Court heard arguments this week over President Joe Biden’s student loan debt relief plan, the justices asked about the definition of relevant statutory language and whether the plaintiffs had standing to sue, as well as constitutional questions around the separation of powers. These are all typical matters to discuss during judicial review. But the conservative justices also spent a good deal of time asking about a more nebulous subject: fairness.
The fairness issue arose during arguments in Department of Education v. Brown, a case in which two individual student borrowers challenged the Biden plan because they did not qualify for any or all of the relief offered.
“Since we’re dealing in a case with individual borrowers or would-be borrowers, I think it’s appropriate to consider some of the fairness arguments,” Chief Justice John Roberts said.
Roberts then presented a hypothetical scenario involving two high school graduates, neither of whom can afford college. One takes out a loan to go to college, while the other gets a loan to start a lawn care service. The one who goes to college, “we know statistically,” Roberts said, “is going to do significantly financially better over the course of life than the person without.”
“And then along comes the government and tells that person, ‘You don’t have to pay your loan,’” he said. “Nobody is telling that person who is trying to set up the lawn service business that he does not have to pay his loan.”
For a court that often pretends to sit above the political fray, this is a line of argument that appears purely political in nature. The court is not judging whether policies are fair. Indeed, the chief justice acknowledged that his opinion on fairness doesn’t matter.
“You may have views on [the] fairness of that, and they don’t count,” Roberts said to Solicitor General Elizabeth Prelogar. “I may have views on the fairness of that, and mine don’t count.”
So why, then, is the chief justice wondering about the fairness of the government’s plan?
The answer is that Roberts was trying to shoehorn the political debate over fairness into what is known as the court’s “major questions” doctrine.
“We would like to usually leave situations of that sort, when you’re talking about spending the government’s money, which is the taxpayer’s money, to the people in charge of the money, which is Congress,” Roberts said.
“Why isn’t that a factor that should enter into our consideration on our major questions — where we look at things a little more strictly than we might otherwise when talking about statutory grants of authority to make sure that this is something that Congress would’ve contemplated?”
The major questions doctrine has emerged in recent years as a favorite tool of the court’s conservative supermajority to squash executive branch actions it does not like. The doctrine states that agency regulations of “vast economic and political significance” must be specifically authorized by Congress.
The major questions doctrine, as currently stated by the high court, “directs courts not to discern the plain meaning of a statute using the normal tools of statutory interpretation, but to require explicit and specific congressional authorization for certain agency policies,” write Daniel Deacon and Leah Litman of the University of Michigan Law School in a draft paper on “The New Major Questions Doctrine.”
The Supreme Court deployed the doctrine in recent cases striking down the Biden administration’s COVID-19 vaccine mandate for big employers, pandemic eviction moratorium and, in the 2022 case of West Virginia v. Environmental Protection Agency, not-yet-proposed regulations limiting greenhouse gas emissions at power plants.
“EPA claimed to discover an unheralded power representing a transformative expansion of its regulatory authority in the vague language of a long-extant, but rarely used, statute designed as a gap filler,” Roberts wrote in the West Virginia case. “That discovery allowed it to adopt a regulatory program that Congress had conspicuously declined to enact itself. Given these circumstances, there is every reason to ‘hesitate before concluding that Congress’ meant to confer on EPA the authority it claims.”
The key issue here is a concern about the separation of powers — namely, that Congress is the proper venue for the adoption of economically and politically significant regulatory actions. As Roberts stated about the potential Biden administration actions on greenhouse gas emissions, Congress did not enact the exact regulatory scheme in that case.
But the student loan forgiveness program rests on fairly strong footing in terms of statutory authorization.
The HEROES Act of 2003 allows the secretary of education to “waive” or “modify” the terms of student loans held by the federal government during a declared national emergency. The COVID-19 pandemic is such an emergency. And the education secretary both waived and modified the terms of certain student loans according to the law Congress passed in providing up to $20,000 in forgiveness.
During arguments over whether the major questions doctrine should apply to the student loan relief plan, the conservative justices questioned whether forgiving debt fit the definition of waiving or modifying, and whether a benefits program is the same a regulatory action. Prelogar argued that Congress gave the authority to the education secretary to waive or modify any or all of the student loan terms.
Roberts’ injection of the political issue of fairness then came as a way to expand the major questions doctrine beyond whether Congress authorized the secretary to forgive some loans. Even if Congress authorized the waiver or modification of loan terms, did it consider whether that would be fair? And wouldn’t Congress be the only body that can judge fairness?
“I don’t see any evidence that they took the person who is trying to start the lawn service because he can’t afford college — I didn’t see evidence they took him into account,” Roberts said in response to Prelogar.
The other conservatives followed suit. Addressing the solicitor general, Justice Samuel Alito demanded to know whether the administration’s education secretary thought the plan was fair.
“Why is it fair?” Alito asked. “Why isn’t the answer to say that it was ‘wanted’? Maybe it was wanted, but why?”
“It was fair because in the absence of this relief, it’s undisputed that there are going to be millions of student loan borrowers who are not going to be able to pay their student loans,” Prelogar replied. “They will default in delinquency, and the HEROES Act was specifically designed for the situation. This is Congress telling the secretary, ‘You don’t have to let that happen.’”
Justice Brett Kavanaugh declared that the plan creates “big winners and big losers,” and he speculated that Congress could “try to hear all about all of that and factor all that in.”
“Should any of that factor into how we think about whether to give a broad reading to waive or a narrow reading?” Kavanaugh said.
“No, I don’t think that that should factor into how to interpret the statute,” Prelogar responded. “The court needs to consider that text on its own terms.”
Prelogar was asking the conservative justices to stick to the bounds of the major questions doctrine that they stated in prior case history, instead of trying to expand the doctrine to include whether Congress fully considered the fairness of the actions authorized by its laws.
The major questions doctrine has been criticized as a judicial power grab that enables conservatives to strike down executive actions they don’t like without revisiting their precedents. This entire line of questioning during the student loan arguments underscored that critique.
When presented with a policy that doesn’t quite fit the bounds of the current major questions doctrine, the conservative justices reached to expand it.