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Justices focus on two ways to duck deciding the legality of Biden’s student loan forgiveness plan during oral arguments in major cases


Student debt relief advocates gather outside the Supreme Court on Capitol Hill in Washington, Tuesday, Feb. 28, 2023, ahead of arguments over President Joe Biden’s student debt relief plan.

The Supreme Court of the United States heard the much-anticipated oral arguments Tuesday in two challenges to President Joe Biden’s plans to cancel student loan debt for millions of borrowers. Over nearly four hours of colloquy with counsel, the justices appeared were far more focused on how to sidestep deciding the program’s legality than in analyzing its merits.

In Biden v. Nebraska, six states with Republican attorneys general sued and argued that the HEROES Act is not a proper legal basis for the plan. A trio of Republican-appointed judges for the U.S. Court of Appeals for the 8th Circuit temporarily halted the program in October 2022 while litigation proceeded. Immediately thereafter, the Biden administration asked the justices to step in, but the justices refused to do so in a brief unsigned order on Dec. 1, 2022.

The companion case, Department of Education v. Brown, was filed in Texas by two student-loan borrowers, neither of whom fully qualifies to participate in the loan-forgiveness plan. The two borrowers argue that the entire plan should be blocked because they were excluded from its fullest benefits. The district court sided with the borrowers, and the Fifth Circuit declined overturn the ruling, thus prompting the appeal to the Supreme Court.

At oral arguments, much of the conversation was confined to the two primary roads that would provide a clean exit for the justices to avoid ruling on the program’s legality altogether.

Major Questions doctrine

Several justices repeatedly probed the presenting attorneys on how the “major questions doctrine” might strip the Supreme Court of any power to adjudicate the challenges to Biden’s program.

The major questions doctrine is a legal rule that demands Congress be specific in delegating authority to rule on questions of great political or economic importance. Clearly, the fate of the student loan relief plan is one that has pervaded headlines since its inception, but that does not necessarily mean it should escape judicial review on that basis.

When Solicitor General Elizabeth Prelogar argued for the Biden administration, several justices pressed her on whether the program—a key campaign promise for the president—is not exactly the kind of matter that would constitute a “major question.”

Prelogar refused to acquiesce. She called the consequences of the loan-forgiveness program, “economically significant,” but argued that such significance “cannot be the sole trigger for the major questions doctrine.”

When Justice Samuel Alito repeatedly pressed the solicitor general on the doctrine’s applicability, Prelogar went so far as to argue that Congress did speak clearly in the context of COVID-based loan forgiveness.

Prelogar told Alito that the loan-relief program was enacted under the HEROES Act—a federal statute that responded to a national emergency. In that statute, Prelogar argued, Congress expressly allowed the Secretary of Education to forgive student loans; Prelogar also pointed out that even former Secretary of Education Betsy DeVos relied on the HEROES Act to pause loan repayments.

Should a majority of justices be unconvinced that the major questions doctrine prohibits them from adjudicating the cases, there is still another major off-ramp that seemed to be on their minds of the nine during arguments: Standing.


Standing is the legal requirement that a plaintiff in a lawsuit suffer an actual injury as a result of the contested action. Should the justices agree that either the group of Republican-led states or the two excluded borrowers (or both) have not been actually harmed by Biden’s plan, the justices could decline to rule on the matter entirely.

In Biden v. Nebraska, the justices were skeptical about whether states themselves have suffered actionable damages in such a way as create standing. Central to this analysis is the relationship between the Missouri Higher Education Loan Authority (MOHELA) and the State of Missouri. MOHELA, the loan servicing entity, was created by the Missouri General Assembly and is governed by a board appointed by the state’s governor.

“Why isn’t MOHELA responsible for deciding whether to bring this suit?” Justice Elena Kagan asked bluntly. Kagan later commented that SCOTUS does not allow third parties to interfere with the decision of a freestanding entity about whether or not to bring a lawsuit.

Alito later brought up a 1995 case in which SCOTUS ruled that the relationship between Amtrak and the government was so close that Amtrak’s actions could be legally considered government action. Notably, though, Amtrak’s actions were imputed onto the federal government as a defendant, and not as a plaintiff for purposes of establishing standing.

The bench appeared even more skeptical about the plaintiffs’ standing in Department of Education v. Brown.

At one point, Justice Sonia Sotomayor told the student borrowers’ attorney, J. Michael Connolly, that his argument was “totally illogical” given that his clients claim they did not get enough relief while seeking to strike down the program altogether.

Several justices batted around Chief Justice John Roberts’ hypothetical question of an imagined lawn-care business owner with business loans (but not student loans) who challenged student-loan relief claiming that it was unfair for him to be excluded from the program.

Justice Amy Coney Barrett asked Connolly whether someone who paid their loans off last year could sue because they were excluded.

Although both cases before SCOTUS present similar issues regarding the applicability of the major questions doctrine, they each raise different questions with respect to standing. Accordingly, the justices have varying options before them to avoid considering the merits of the cases. Whether they will rely on standing or the major questions doctrine to jettison either case remains to be seen.

You can listen to the full oral arguments in Biden v. Nebraska here and in Department of Education v. Brown here.

[image via AP/Patrick Semansky]

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos