By John Kruzel and Andrew Chung
WASHINGTON (Reuters) -The skepticism expressed by conservative U.S. Supreme Court justices toward President Joe Biden’s move to forgive $430 billion in student debt not only cast doubt on the plan’s fate but also signaled trouble ahead for the use of executive power to get things done in his remaining time in office.
Questions posed by the conservative justices during arguments on Tuesday over Biden’s debt relief indicated that the conservative-majority court could strike down the plan as an unlawful overreach of executive power.
The conservative justices may apply the exacting legal standard that they have used to undo prior policy actions by Biden – one that could stop him from employing executive power to enact other items on his agenda even as he deals with a divided Congress unlikely to pass legislation he wants.
Republicans control the House of Representatives while Biden’s fellow Democrats control the Senate.
“I’m confident that we’re on the right side of the law. I’m not confident about the outcome of the decision,” Biden told reporters at the White House on Wednesday.
The court is due to rule by the end of June on the legality of the debt relief, which the administration argued was lawful under authority given to the executive branch by the Higher Education Relief Opportunities for Students Act, or HEROES Act. That 2003 law authorizes the U.S. education secretary to “waive or modify” student financial assistance during war or national emergencies, in this case the COVID-19 pandemic.
“If it (the court) indicates that it doesn’t think the HEROES Act authority extends to loan forgiveness in this context, this would be a signal that the court intends to constrain future applications of aggressive statutory interpretation by the Biden or successor administrations,” said Andrew Rudalevige, a professor of government at Bowdoin College in Maine.
Such an outcome, Rudalevige added, could have serious consequences for basic governance in Washington.
“If Congress can’t or won’t step up, and the court won’t let presidents do so, what are we left with? Governance by five justices does not seem like good government, either,” Rudalevige said, referring to the number of votes needed to win a case at the Supreme Court.
Presidents of both parties have used executive orders and other unilateral steps when Congress has failed to act as they hoped – sometimes tiptoeing to the very edge, or perhaps beyond that, of encroaching on legislative authority.
When Biden was vice president in 2014, then-President Barack Obama remarked that he could bypass congressional gridlock through his executive authority, saying, “I’ve got a pen, and I’ve got a phone.” Obama did so on immigration and other policies.
Since then, the Supreme Court has moved rightward, particularly since achieving a 6-3 conservative majority in 2020 with Republican President Donald Trump’s appointment of Justice Amy Coney Barrett.
The court has repeatedly applied to Biden policies the so-called major questions doctrine, a judicial approach that casts a skeptical eye toward far-reaching action by federal agencies deemed lacking clear congressional authorization.
Its conservative justices already have invoked it to scuttle a pandemic-era residential eviction moratorium, a COVID-19 vaccination-or-testing mandate for large businesses and federal limits on carbon emissions from power plants.
‘A GOOD LESSON’
Chief Justice John Roberts said during Tuesday’s arguments that policies involving a lot of money and generating a lot of political controversy might be “something for Congress to act on.”
“And if they haven’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,” Roberts said.
Biden’s plan, announced last August, would forgive up to $10,000 in federal student debt for Americans making under $125,000 who took out loans to pay for college and other post-secondary education and $20,000 for recipients of Pell grants awarded to students from lower-income families.
In some instances, like Biden’s unilateral effort to extend the eviction moratorium, he took executive action following congressional inaction. The same dynamic was at play when his administration unveiled the debt forgiveness policy, according to David Lublin, a professor of government at American University in Washington.
“The program surely reflects Democratic frustration with being unable to do this legislatively and the (legal) challenges reflect Republican desire to challenge Democrats at every turn,” Lublin said. “We are in very polarized times.”
Lublin said the impact on Biden’s future agenda will depend on how the court explains when a president’s administration exceeds its authority under a federal statute or the U.S. Constitution.
For example, Lublin said, “If many similar statutes have similar statutory wording, broad or major administrative action may also come under challenge.”
“Any of this is more likely to have an impact on Democrats because they are more likely to want to have the government take aggressive action via spending,” Lublin added.
Liberal Justice Ketanji Brown Jackson, a Biden appointee, raised similar concerns on Tuesday, highlighting a “big-picture” worry about the court making it too easy for people to sue to stop government policies they dislike.
“I’m concerned that we’re going to have a problem in terms of the federal government’s ability to operate,” Jackson said.
(Reporting by John Kruzel and Andrew Chung in Washington; Additional reporting by Steve Holland; Editing by Will Dunham)
