You may have heard that, after nearly two years of “will he or won’t he,” President Biden announced that the Department of Education will cancel student debt. Well, it will cancel a limited amount of student debt for borrowers that meet certain income criteria before restarting payments again on the First of January, 2023.
And even that much is in question. Because of the means-testing built into the plan, most eligible borrowers will have to fill out an application, which will apparently not be available until October(!!). In the meantime, movement conservatives are gearing up to challenge the effort. Knowing that they won’t be able to form a majority in Congress (at least not before midterms), they are directing their efforts toward a more sympathetic forum: the federal courts. If they find a sympathetic ear, they may be able to enjoin the jubilee altogether.
Will they find such an ear? Should they?
How should we answer these questions?
The lawyerly tendency is to apply precedent-supported interpretive principles to the relevant legal texts–standing in the shoes of a court.
So: The Biden Administration has publicly grounded the legality of its action in the HEROES Act of 2003, which grants the Secretary of Education authority to “waive or modify any provision” of the Higher Education Act “as may be necessary to ensure that … recipients of student financial assistance … are not placed in a worse position financially in relation to that financial assistance because of” a national emergency. (This is the same authority the Trump Administration relied on to justify the pandemic pause on student loan payments.) To determine whether this argument holds water, we would then ask whether current conditions count as an “emergency” in the right sense, whether cancellation is appropriately targeted to address such an emergency, what standards of deference a court should apply to an administrative agency’s judgment about the targeting, and so on.
The Administration might also end up relying on the compromise or modification authorities of the Higher Education Act of 1965, which, read literally, grant discretion to the Secretary to reduce or eliminate its claims on student debtors. (This is the authority for which I have advocated.) In which case, the subsequent legal analysis would turn on applicable principles of deference (Does Heckler apply? Does Chevron (or Mead)? And so on), on whether these authorities are implicitly bounded and how, on whether the Department’s regulations limit its authority or whether they can be modified through interpretation, and so on.
These are difficult questions. I (and others) think the answers favor the Administration, others are more skeptical. There is no Hercules to sort out our disagreements, only actually existing humans with their preferences, commitments, and institutional loyalties. So to determine whether the jubilee will survive the forthcoming legal challenge requires not just legal analysis but predicting how people with the power to say what the law is will perform legal analysis. In the context of a high-profile lawsuit, it involves predicting which precedents, hermeneutic styles, and principles of deference the several Supreme Court Justices will adopt, counting their likely votes, and predicting how others are likely to respond to the result.
Predicting how others will perform a legal analysis is a different way of answering the “is it lawful?” question: one that treats the answer to that question as a matter of what legal officials say rather than how sound their judgment is. That approach motivates the critical tendency to treat the question of lawfulness as just a matter of politics: the real question is what will people with power say.
In the crudest version of this tendency, the thought is that judges presented with a case will decide it based on their views about the merits of the policy and/or their partisan loyalties. Do Republicans oppose student debt cancellation and/or anything that will bolster a Democratic President’s reputation? Then Republican-appointed judges will rule against. Democratic judges will dutifully dissent. The details of the legal arguments are epiphonemena.
In today’s increasingly partisan-aligned judiciary, this crude realism is not such a bad first approximation. And it’s a powerful form of populist rhetoric to wield in the cause for disempowering the Supreme Court. I would rather non-lawyers understand the Court as a political body of this sort than as a group of disinterested avatars for the Highest Principles of Government. Nevertheless, we can do better than a first approximation. We know analysis, however motivated, can be done competently or incompetently. And, in any case, the politics of legal analysis are not so simple. There are always multiple overlapping political-legal struggles at play.
In addition to their ideologies and loyalties–their tendency to reason backward from their desired outcome–judges will view the dispute over a jubilee in terms of how it fits into their other political projects. One of those projects is the ongoing conservative campaign against lawmaking through the administrative state. The “major questions doctrine” has rapidly emerged as the weapon of choice for kneecapping creative executive branch efforts (so long as they do not involve warmaking or other forms of organized violence directed at out groups). Two earlier efforts to use extant administrative authorities in novel ways to deal with the impacts of COVID have already been struck down in this way, and we can be reasonably sure MQD will play a role in reviewing student debt cancellation if the case should go to the merits.
Whether it gets to the merits will largely be a matter of whether opponents of cancellation can find a plaintiff with standing, another issue with political valence. Standing limitations originally emerged out of progressive judges’ efforts to give the administrative state some breathing room, but they flipped political valence and expanded when they proved useful in stopping “citizen suits” in environmental law cases and then consumer class actions. One side-effect of the conservative judiciary’s assault on the administrative state is that we may be on the verge of another flip. (Meanwhile, it seems that servicers, the potential plaintiffs with the best case for standing, are unlikely to sue, since doing so would likely not be good for their business.)
But judges do not entirely determine their own power to determine the lawfulness of student debt cancellation–or anything else. Marshall’s dictum that “[i]t is emphatically the duty of the Judicial Department to say what the law is” was part of a judicial power grab, a power grab that has not gone uncontested. It has become increasingly clear that part of the conservative project is to expand the judiciary’s power to “say what the law is” all the more, in order to undermine efforts at making the state more democratic–whether via administrative governance, expanded voting rights, or otherwise. And it has become increasingly mainstream to question whether the Court’s (or the courts’) judgments should be taken as the final word on any legal subject, especially if that judgment divides along partisan lines.
These “threats to the Court’s legitimacy” do seem to be bothering the Justices who seek to grab power, and it may encourage at least some of them to lower their ambitions for rapid institutional change by judicial fiat. But not reliably. Some fighting back from other branches (and from social movements) will be needed. Though we have yet to see open defiance of the Court’s rulings or a serious proposal to check its power, those responses may yet be on the table as mobilization grows against the Court’s reactionary turn.
In this environment, it becomes difficult to give any simple answer to “is the jubilee lawful?” That is in part because how one answers that question is itself to participate in these legal-political struggles. Should one treat MQD as good law or as an absurd power grab that must be actively resisted? Should the broad and creative use of emergency powers be flatly opposed on principle, or should we distinguish between different uses? Should the Court’s analysis be treated as binding? Always, or with exceptions? Should we focus on Congress’s interpretations? Or whose? And so on.
Indeed, it is the politics of legal interpretation that got us to this point. The insistence of a broad coalition of social movements that student debt cancellation can happen under existing law with a “flick of the pen” forced the Administration to undertake its own legal analysis, which resulted in the memos linked above (and surely other non-public documents). And those movements inspired empirical researchers to evaluate the potential impacts of student debt cancellation, creating a whole new field of policy debate. Now that the legal argument opened up this political space, it will not be closed simply by a court ruling one way or another. It might even pick up momentum if the Court stands in its way, since those who support student debt cancellation will find themselves joining forces with other movements to resist judicial supremacy.
That brings me to a point I made at this Blog a few months ago in response to NFIB v. Dept. of Labor: “However much power the Court has to rewrite the rules for legitimate government action, it only gets to do so after another branch has taken action and after litigation challenging that action makes its way up the appellate hierarchy. The initiative is with the (overtly) political branches. And it is initiative that must be taken if effective–let alone transformative–action is to coexist with this Court.”
That applies for administrative branch officials and to Congress, but it applies double for social movements and allied legal analysts. Even as the Supreme Court seeks to squelch legal creativity in support of progressive causes, their power to do so only extends so far. We cannot let them define the terms of the debate.
