Conservatives struggle to find legal avenues against Biden’s revamped student debt relief

GOP legal efforts against President Biden’s student loan forgiveness plans have dwindled since their major Supreme Court victory last summer, highlighting the difficulty in challenging these policies on a smaller scale.  

The win last year blocked Biden from implementing a more than $400 billion plan to forgive up to $20,000 for almost all borrowers.  

Since then, however, the president has issued multiple smaller batches of student debt forgiveness, recently offering $1.2 billion of relief.

One red-leaning state is taking the lead on confronting these moves, but so far, legal challenges have yet to find much traction. 

The Biden administration has forgiven an “unprecedented” amount of student loans, according to the Department of Education, totaling more than $134 billion. The relief has largely been aimed at borrowers with disabilities, those who were defrauded by their schools and fixes to income-driven repayment (IDR) options.  

The newest program that has conservatives up in arms is the Saving on Valuable Education (SAVE) IDR plan, which they estimate will cost more than $550 billion over 10 years.  

Michael Poon, an attorney for the Pacific Legal Foundation, says the administration “structured the program in such a way” that it is harder to get challenges in front of judges. “But, if it were in front of the court, I think the courts” would hold that “it’s unlawful,” he added.

And the state of Kansas has recently indicated it is willing take point position on opposing the proposal.

“The new plan is slightly smaller than the old one — $138 billion vs. $430 billion — but just as illegal. Last time, the attorneys general of six states — Kansas, Nebraska, Missouri, Iowa, Arkansas, and South Carolina — banded together to sue the Biden administration, taking the case all the way to the Supreme Court. We won. This time, Kansas will take the lead in suing the administration, and we intend to win again,” state Attorney General Kris Kobach wrote in a Washington Free Beacon op-ed last last week.

The Hill has reached out to Kobach for further comment, and his threatened lawsuit has yet to be filed.  

Biden’s previous, sweeping proposal failed at the high court at least in part because the administration tried implementing it based on emergency powers from the pandemic.  

But the SAVE plan is based on the Higher Education Act and targets a much smaller group of people, making it difficult to find a party to challenge it.  

“I wouldn’t say that it’s impossible to challenge these loan cancellation efforts. I do think that just like in the original loan cancellation effort, it really depends on there being people or businesses who are affected and being willing to stand up and stick their neck out on an issue that can make them unpopular,” Poon said. “It’s a rare thing.”  

Back in 2022, the Republican-led states initially had a ruling against them in a lower court for lack of standing, or ability to sue. The judge found the argument that the states were negatively affected by student debt relief because of tax revenue was speculative.

“All six of the states originally lost on standing before the Supreme Court reversed in the case of Missouri. And I went back and looked at what the appellate court said, and the argument about lost tax revenue was said to be speculative and was just vague,” said Adam Kissel, visiting fellow in the Heritage Foundation’s Center for Education Policy.   

“But now that there has been actual loan cancellation under the SAVE plan, I think the states have a good chance of succeeding on standing as well as the merits because the tax revenue loss is quantifiable,” Kissel added.  

The Department of Education said in a Tuesday statement to The Hill that it will continue on its path “no matter how many times Republican elected officials try to stop us.”

“This is yet another attempt by Republican elected officials to prevent their own constituents from the student debt relief they earned and are entitled to. In Kansas, nearly 1,300 borrowers have already received $9.9 million in debt relief under the Biden-Harris Administration’s SAVE plan, and 60,000 Kansas borrowers are saving money on their payments month after month because of SAVE,” a department spokesperson said.

The potential lawsuit still does not compare to the legal response Biden got back in 2022, with more than half a dozen cases promptly filed challenging his universal loan forgiveness.

Poon was one of the attorneys for Pacific Legal’s challenge to Biden’s universal student debt relief efforts, though their case was dismissed after the Supreme Court’s decision to strike down the program. 

“In our case, we brought the case and the administration changed the program just a little bit to exclude our plaintiffs from the program so that they could avoid judicial review,” Poon said. “And then we responded, and then they responded again by changing the program just a little bit, so that they could exclude the case for judicial review. It was never really about whether the program was lawful. It was all about trying to stop the courts from being able to look at the program and determine whether it was unlawful.” 

On the whole, Biden’s new efforts have left many conservatives’ hands tied, only reacting to the debt relief with statements claiming the efforts are unconstitutional and how it is unfair to taxpayers.  

“College students themselves are the biggest losers of Biden’s college debt forgiveness workarounds because colleges are given a blank check to continue overcharging and saddling them with debt,” said Elaine Parker, president of Job Creators Network Foundation, which was involved in one of the two lawsuits last year at the Supreme Court.

“Biden must be held accountable not only by the Supreme Court, but also in the court of public opinion.”