Biden Doubts Future of His Student Loan Cancellation Plan

President Joe Biden (left), joined by Education Secretary Miguel Cardona, speaks on student loan debt in the Roosevelt Room of the White House on Aug. 24, 2022. Alex Wong/Getty Images

President Joe Biden on Wednesday said he’s not sure whether the Supreme Court would block his plan to “forgive” hundreds of billions of dollars in federal student loan debt.

“I’m confident we’re on the right side of the law. I’m not confident about the outcome of the decision yet,” the president told reporters when asked whether he was confident that the nation’s highest court would rule in his administration’s favor.

The Supreme Court heard oral arguments on Tuesday in two cases challenging Biden’s use of executive power. At the core of the cases is the question of whether Biden has the authority to implement the $400 billion plan, which would cancel up to $10,000 in student loan debt for every borrower who earns less than $125,000 a year while canceling up to $20,000 for each Pell Grant recipient who meets that income standard.

In oral arguments, a conservative majority on the high court expressed skepticism about the idea that Biden could bypass Congress to make such a far-reaching move. Several justices, including Chief Justice John Roberts, said they believed there should be a role for Congress to play in a “major question” involving so much money and affecting so many people.

“We take very seriously the idea of separation of powers and that power should be divided to prevent its abuse, and there are many procedural niceties that have to be followed for the same purpose,” Roberts told Solicitor General Elizabeth Prelogar, who was defending the debt cancellation plan.

“I think most casual observers would say, if you’re going to give up that much amount of money, if you’re going to affect the obligations of that many Americans on a subject that’s of great controversy, they would think that’s something for Congress to act on,” said the chief justice. “And if Congress hasn’t acted on it, then maybe that’s a good lesson to say, for the President or the administrative bureaucracy, that maybe that’s not something they should undertake on their own.”

Student Loans Cancellation Likened to DACA

At one point during Tuesday’s hearing, Roberts referred to the 2020 Supreme Court decision that blocked the Trump administration from unilaterally terminating the Deferred Action for Childhood Arrivals (DACA) program, which allowed “dreamers,” or those who were illegally brought to the United States as children, to stay and work without the threat of deportation.

In the 5–4 majority opinion he wrote for the DACA decision three years ago, Roberts condemned the Trump administration’s action as an “arbitrary and capricious” overstepping of the executive branch’s legal authority. On Tuesday, he said he saw a resemblance between the student loan debt case and the DACA case.

“This case reminds me of the one we had a few years ago under a different administration, where the administration tried acting on its own to cancel the Dreamers program, and we blocked that effort,” Roberts said, speaking to Prelogar.

Roberts also invoked what is known as the “major questions doctrine,” a two-step analysis (pdf) the Supreme Court has been using to determine whether a government agency has triggered a major question that requires an explicit congressional authorization. At step one, the Court looks at whether the issue has “vast economic and political significance.” If so, the Court will proceed to step two and determine whether Congress has clearly empowered the agency with authority over the issue.

The cancellation of federal student loan debt is an issue serious and important enough for the doctrine to apply, according to Roberts.

“Given the posture of the case and given our historic concern about the separation of powers, you would recognize at least that this is a case that presents extraordinarily serious, important issues about the role of Congress and about the role that we should exercise in scrutinizing that, significant enough that the major questions doctrine ought to be considered,” he said.