The fate of student debt forgiveness will once again lie with the Supreme Court

President Biden once again seeks to forgive billions in student loan debt by leveraging ambiguous federal statutes before the election. But the Supreme Court’s previous ruling against him and Congress’s failure to enact debt forgiveness legislation makes such subterfuge difficult.

In 2023, Biden first attempted to forgive $430 billion in debt under the 2003 HEROES Act, a move struck down by the Supreme Court in Biden v. Nebraska. The HEROES Act grants the secretary of Education authority to “waive or modify” student debt obligations in the face of “a war or other military operation or national emergency.” Historically, the secretary “modified” student loan obligations under the act by extending periods for tax filings, and other procedural waivers. But as the Supreme Court noted, the Biden administration “modified” student debt obligations “in the same sense that the French Revolution ‘modified’ the status of the French nobility — it has abolished them and supplanted them with a new regime entirely.” 

This all under the rationale that the COVID-19 pandemic qualified as a “national emergency” warranting debt forgiveness; even though the pandemic disproportionately affected the finances of those without a college degree. 

The Supreme Court struck down this executive rewrite of the HEROES Act based on an old doctrine, now revived and given a proper name: “the Major Questions Doctrine.” The doctrine stands for the simple, but vital proposition that when Congress intends to vest an agency with the power to make decisions of major political or economic significance, it says so clearly. Congress does not hide vast agency powers in vague, outdated statutory provisions. 

This doctrine is vitally important given that agencies continue to creep beyond congressional intent to amass far-reaching regulatory power. But it’s also important for another reason, illustrated by President Biden’s unyielding efforts to circumvent Congress in the student loan arena: Increasingly, the executive uses agencies to accomplish what it cannot through other avenues.

Despite the clear message from the Supreme Court in Biden v. Nebraska, the Biden administration persists in its belief that it can outmaneuver Congress and the courts. Its latest attempt relies on the Higher Education Act of 1965, which to Biden’s credit, is a much broader statute and gives more power to the executive than the HEROES Act (the statute under which he first attempted debt forgiveness). The move does raise the question of why the Biden administration didn’t attempt debt forgiveness under the Higher Education Act in the first place. 

Still, the Higher Education Act’s language is ambiguous as to whether the executive has such sweeping power. The likely answer is the simplest: The statute doesn’t speak clearly because the executive does not possess the authority, be it under the HEROES Act, the Higher Education Act, or elsewhere, to forgive student loan debt en masse. If it did, Congress would have said as much after the court struck down Biden’s previous efforts. 

Congress has considered nearly 100 bills involving student loans, including several on debt forgiveness, and none have passed. Public opinion polling suggests widespread forgiveness is simply not the will of the country. 

The Supreme Court is likely to invoke the Major Questions Doctrine to invalidate the newest debt forgiveness attempt, and rightly so, given the lack of express congressional authorization and ongoing democratic deliberations in Congress. If Congress wishes for the Department of Higher Education to do the lawmakers’ job, it will tell them, but it is not the Biden administration’s role to make major federal spending decisions unprompted. The Major Questions Doctrine honors this separation of powers principle and requires proof of the broad power an agency claims when it makes politically charged, economic decisions that will affect the entire country. 

Perhaps the Biden administration knows this will end at the Supreme Court, with the new forgiveness plan invalidated, and young, hopeful citizens disappointed. Having faced setbacks in other areas, such as its handling of the Israel-Hamas conflict, the administration seeks to garner temporary favor with young voters by championing debt forgiveness, even when it knows the likelihood of success is quite low. 

Our tax dollars, and busy court dockets, should not go toward litigating another iteration of the same well-established principle: Vague federal statutes should not serve as vehicles for executive branch exploitation to accomplish through agencies what it cannot accomplish in Congress. Particularly when the goal it aims to accomplish looks more like an election strategy than a genuine attempt at policy. 

Jill Jacobson is a visiting fellow at Independent Women’s Law Center (iwlc.org) and a contributor at Young Voices.