Top 5 questions surrounding Biden student loan forgiveness fight at Supreme Court

President Biden’s student loan plan will get its final shot at victory Tuesday at the Supreme Court when the majority-conservative court prepares to hear arguments that will determine the fate of up to $20,000 in debt relief for millions of Americans.

The showdown between the Biden administration and the two groups of challengers to the president’s plan has been building for months, with many protesters having camped outside the court ahead of today’s session, which begins at 10 a.m. 

U.S. Solicitor General Elizabeth Prelogar in back-to-back oral arguments will attempt to fend off a group of six GOP-led states, represented by Nebraska Solicitor General James Campbell, followed by a separate challenge from two individuals.

Here are five top questions heading into oral arguments.

Did Congress speak clearly enough to give authority to forgive the debts?

Challengers will argue that Congress did not speak clearly enough in the Higher Education Relief Opportunities for Students, or HEROES Act to authorize the debt forgiveness.

The law gives the education secretary the authority to “waive or modify” federal student financial assistance programs when deemed necessary in connection with a national emergency. Education Secretary Miguel Cardona has tied the relief to the emergency established during the pandemic.

But the challengers say the plan invokes the “major questions” doctrine, which requires Congress to speak clearly when authorizing agency actions of great economic and political significance. The justices have cemented the doctrine by using it to strike down three agency actions in recent years.

“The Biden administration student loan bailout is a textbook case for the major questions doctrine,” said Karen Harned, chief legal officer for Job Creators Network Foundation, a conservative advocacy organization backing the individual challengers.

Will Nancy Pelosi’s previous doubts on Biden’s authority haunt Democrats?

Then-Speaker Nancy Pelosi (D-Calif.) said in July 2021 that Biden could not forgive the debts without new legislation. 

“He can postpone, he can delay, but he does not have that power,” Pelosi said at the time. “That would best be an act of Congress.”

Republicans have pounced on her comments in lambasting the debt relief plan, which could come up in oral arguments. She has since reversed her stance.

“Well, we’re excited about the President, because we didn’t know what – what authority the President had to do this,” she said in August. “And now clearly, it seems he has the authority to do this: $10,000 for those with the debt, those making under $125,000 a year.”

Are justices sympathetic to the challengers’ standing arguments?

Legal experts suggest the closer question in the cases is whether the challengers could bring their lawsuits in the first place, a concept known as standing.

A party must show actual injury and that it had a causal connection to the defendants and that a court order would redress it.

The Biden administration contends the court cannot redress the injuries of the two individual challengers, who did not qualify for the maximum amount of forgiveness, because stopping the plan wouldn’t give them more relief.

In the states’ challenge, three cited economic impacts from how some borrowers are now consolidating their loans and four suggested their tax revenues will take a hit.

Court watchers largely agree that Missouri’s argument is perhaps the most compelling, however.

The states’ lawyers assert that the Missouri Higher Education Loan Authority, a state-created student loan servicer known as MOHELA, would lose out on fees it earns if the loans are forgiven and miss payments owed to Missouri.

The administration argues those harms are too speculative and that MOHELA, which has said it was not involved in filing the suit, is a separate legal entity from the state.

How do the justices factor in the resumption of monthly loan payments?

Student loan repayments are set to resume once the case is decided, ending a three-year pause due to the COVID-19 pandemic.

A decision will likely be handed down in May or June, but the exact timing could impact exactly when the transition to payment starting up again might occur. 

The Biden administration has said borrowers must begin paying back their student loans 60 days after the Supreme Court makes a final decision or, at the latest, 60 days after June 30.

The government has highlighted potential consequences of restarting payments without debt relief in its argument, contending that the lingering economic effects of the pandemic would cause many borrowers to default.

“This is the best possible time to have debt cancellation, is before borrowers are returning to repayment,” said Jared Bass, senior director of higher education at the Center for American Progress. “The return to repayment, regardless, is going to be an administrative and a huge challenge for borrowers and for the student loan system writ large.”

What decisions will the justices release at the start of the argument?

Moments before oral arguments begin, the justices could make another splash.

The court has designated Tuesday as an opinion day, meaning the justices are expected to hand down at least one decision in a separate case at the start of the session. 

The court tends to leave its most controversial decisions until May or June but does not indicate in advance which opinions will be announced. This year’s docket includes high-profile cases involving affirmative action, wetland regulations and redistricting.

By tradition, the author of each majority opinion will announce the decision by reading a summary from the bench in the courtroom.

Only a few feet away, attorneys will be waiting to take the lectern to debate a major Biden campaign promise.