(CNN) Chief Justice John Roberts hammered out the price tag — “about half a trillion dollars” — for the Biden administration’s student loan forgiveness plan. during oral arguments on Tuesday. But as he repeatedly cited the big cost, he reinforced a broader, more familiar point, which further reduces executive power and empowers the Supreme Court itself.
During a session that lasted three and a half hours, Roberts was particularly active in the center chair, asserting the court’s authority and his own. Now in his 18th term, Roberts has at times struggled to rein in his colleagues, many of whom reside on his ideological right, but these cases have given him a prominent presence in the area of legislation he drives.
Roberts, 68, pressed the emerging “critical question doctrine” embraced by the right, which prohibits agency action on matters of broad economic and political importance without clear authority from Congress.
He also showed his approach to basic policy choices, as he questioned the fairness of federal aid to a student who took out college loans and started a lawn care service instead of someone who didn’t have a chance at college.
“The government comes in and tells the person: You don’t have to pay off your loan,” Roberts said of a hypothetical college loan borrower. “No one tells the guy who’s trying to start a lawn service business that he doesn’t have to pay off his debt, and he’s still saying that, even though his tax dollars support a college graduate’s debt forgiveness, he’s going to make a lot more now than he will in his lifetime.”
The lawsuits tested whether a 2003 law that allows the education secretary to “discount or modify” federal student loans in national emergencies could be used to forgive loans for more than 40 million borrowers in the wake of the Covid-19 pandemic. The lawsuits were brought by six Republican-led states and two borrowers who are not eligible for full relief of up to $20,000 in personal loan forgiveness.
In recent years, conservative majorities have invoked variations of the “key questions doctrine” as they have scaled back the Biden administration’s initiatives to prevent the spread of the coronavirus (e.g. the evacuation ban and emergency vaccination and testing requirements) and to protect air quality through limits. Power Plant Emissions.
Last June, the Power plant emission resultRoberts wrote that regulations that raise “important questions” such as the climate-change crisis should be allowed only if an agency “points to clear congressional authorization” for its action.
U.S. Solicitor General Elizabeth Preloger defended the Biden plan and tried to blunt that approach when he went to lecture.
“Over the past three years, millions of Americans have struggled to pay rent, utilities, food, and many more have defaulted on their loans,” Preloger said. “Loan forgiveness is a paradigmatic form of debt relief, and the Secretary acted within the core of his authority and in accordance with the central intent of the HEROES Act (of 2003) in providing that relief here. Apply to override the important questions doctrine. The plain text would deny important relief that Congress authorized to borrowers, and the Secretary must considered that.”
Roberts was skeptical at every turn: “We’re talking about half a trillion dollars and 43 million Americans. How does that fit under the ordinary understanding of ‘replacement’?”
Later, he was even more open.
“Most casual observers would say, if you’re going to give up that much money, if you’re going to jeopardize the obligations of so many Americans on something so controversial, they’re going to think that’s something. Congress needs to act,” Roberts said. “If they don’t act on it, it’s probably a good lesson for the president or the executive bureaucracy, and it’s not something they should undertake on their own.”
The HEROES Act, officially known as the Higher Education Relief Opportunities for Students Act of 2003, was written to allow the education secretary to handle a variety of emergencies, Preloger said.
“Congress wants to cover the watershed and make sure in advance that the secretary has the tools to make sure that student-borrowers are not going to be worse off, depending on any situation that he faces,” he told the justices.
He acknowledged the significant costs and key policy at issue, but said, “I think that applies to any action that the government can take, especially in the context of a benefit program, based on the size of those programs. And the number of people affected, the costs are often in the billions of dollars.”
Preloger’s arguments were reinforced by three liberals out of nine. Sonia Sotomayor, a left-leaning senior justice, warned that if the agency’s authority to carry out acts of Congress is curtailed, judges will seize more power.
Addressing Nebraska State Solicitor General James Campbell, who has argued against the Biden administration, Sotomayor said, “What you’re saying is that we’re giving the judges the right to decide how much help to give. The secretary of education, who deals with issues around education issues and student loans, that’s in the hands of someone who has experience with these questions. We don’t give up the decision, we take it ourselves.”
In the past there has been such a shift of power among the branches. Last year, in the powerhouse emissions case, Justice Elena Kagan protested that the relatively recent “key questions” approach usurped the agencies’ expertise.
“The Court appoints itself — rather than Congress or an expert agency — as the decision maker on climate policy,” Kagan wrote in a dissenting opinion. “I can’t think of anything scarier.”
On Tuesday, Kagan emphasized that the HEROES Act is clear about the secretary of education’s authority in national emergencies to “waive or modify any statutory or regulatory provision” of student financial aid.
“Congress didn’t exactly state the circumstances under which the secretary would want to use this authority. Certainly not.” It was an emergency act, and he insisted, “We’re literally messing up the laws of Congress every day. This is not it.”
After a few beats, Roberts implicitly reconnected with the latest paradigm of the conservative supermajority. He pointed to cases where the court found that the provisions of a statute contained the power a corporation sought to exercise, but “considering the nature of the power and its effects,” those provisions were simply “not sufficiently clear.”