The third of the four major Supreme Court cases decided at the end of the 2022-23 term is Biden v. Nebraska. This is the case in which the Supreme Court struck down Joe Biden’s debt relief program for student borrowers, which would have altered the financial lives of some 2.2 million borrowers across the nation.
Swell.
A couple of things should be noted at the outset:
- Unlike the other three cases decided at the end of the term, this one is quite fact-specific, and is unlikely to impact many (if any) other cases.
- This case should probably have never made it to the Supreme Court, and that is where the argument really lies.
Background
One of Biden’s campaign promises had been to try to cancel as much student debt as possible, given the bleak economic conditions that many graduating students face these days (especially the cost of housing). In order to do that, he needed to invoke the provisions of a very specific statute — the Higher Education Relief Opportunities For Students Act (or HEROS Act) — established in 2001 in the wake of the 9/11 attacks. That act allowed waivers or other relief to recipients of student financial aid programs “in connection with a war or other military operation or national emergency.”
The Trump administration had invoked the act back in 2020 when it had suspended both repayments and the accrual of interest on federal student loans at the start of the COVID-19 pandemic.
Biden then sought to turn that suspension into a permanent waiver, and invoked the HEROS Act once more to cancel the loans of those students whose repayment programs had already been suspended.
Who Has Standing to Sue?
In law, there is a very basic idea that in order to sue somebody you have to have “standing.” And to have standing you normally need to have a concrete injury.
- Another driver drove into your car and caused damage? It’s the damage that gives you standing.
- A contractor failed to complete a home improvement project they had agreed to? It is the financial loss that gives you standing.
So, the question in this case was really, who was injured by the student loan forgiveness program?
- Certainly not the students who had their loans forgiven.
- Not really the banks, as almost all of these loans were government backed.
- Certainly not the real estate brokers who would now be able to sell houses or rent apartments to student borrowers who previously could not afford them.
Who had been hurt by this program?
Nevertheless, six states with Republican attorneys general managed to find a would-be plaintiff in the form of the Missouri Higher Education Loan Authority (MOHELA), a quasi-public authority that would lose some of its loan-processing fees under the Biden plan. However, MOHELA had not sued the Biden administration. The state of Mussouri had.
Oops.
That should have been the end of the story. I mean, in Massachusetts, the MBTA — which runs the subways in Boston — sues under its own name, when it has a legal dispute; it does not sue in the name of the Commonwealth. That’s how quasi-public authorities operate.
But Chief Justice Roberts and the majority in this case, wanted to get to the merits of this question very badly. They found that the plaintiffs had standing, and that the Biden administration had exceeded its authority under the HEROS act. Whether they had or not was a very technical question, a question of statutory interpretation. The result is likely to be limited to this particular case.
But it impacts about 2.2 million people.
Comparison with Paycheck Protection Program
Some of the commentators — and I will now add my voice to them — noted the ironic difference between the treatment of student loan forgiveness and the Paycheck Protection Act. For those of you who have forgotten, “PPP” is the act that was enacted at the beginning of the pandemic in order to help businesses — especially retail businesses who had to shut their doors to the public — survive during the lean times of the pandemic. The intention was to “protect the paychecks” of all those workers who might otherwise have lost their jobs. Hence the name of the act.
Noble idea.
Poor execution.
By now it’s become clear that the program was beset by fraud, that people who never should have received any money under it — such as celebrities like Tom Brady and Khloe Kardashian — and manufacturing and construction firms that thrived during the pandemic, received billions of dollars, collectively.
So where are the Republican attorneys general, looking to preserve the interests of the public?
Nowhere in sight.
Naturally.
Republicans are never anywhere in sight when it comes to protecting the rights of the little guy.
And yet, lots and lots and lots of little guys still vote Republican, animated by their hate of other little guys, wanting to lash out at somebody, but somehow, somehow, never lashing out at the corporate elites.
Or celebrities.
Why is that, my friends?
Why is that?
My advice: if you’re one of those $2.2 million students who just got screwed by the Republicans, maybe you want to go to the polls in 2024 and vote Democratic.
