Supreme Court
The Supreme Court is seen at dusk in Washington, Friday, Oct. 22, 2021. In Biden v. Nebraska, the Supreme Court nullified the Biden student loan forgiveness program. (AP Photo/J. Scott Applewhite)

In less than a semester, some first-year law students become unabashed cynics about how judges read statutes. After a few weeks of reading what are deemed leading court opinions, many One-Ls conclude that cherry-picking from dictionaries and manipulating “canons of construction” to produce interpretations to match a judge’s politics lies within the skill set of jurists. Biden v. Nebraska, the Supreme Court’s decision nullifying the Biden student loan forgiveness program, is not likely to restore the faith of cynics. The majority’s reading of the Higher Education Relief Opportunities for Students Act of 2003 (HEROES Act), on which the administration’s initiative was based, smacks of tendentious manipulation rather than neutral “textualism.” 

Under the administration’s program, qualified borrowers with an adjusted gross income below $125,000 could receive up to $10,000 in relief. Borrowers who had received Pell Grants would qualify for up to $20,000. Readers of the HEROES Act, perhaps unencumbered by the majority’s interpretive skill set, might be forgiven for thinking that the program tracked Congress’s grant of authority to the education secretary with admirable precision. (The existence of solid policy arguments for and against the program is irrelevant to the legal question of whether the statute permits loan forgiveness.) 

Passed in the wake of 9/11, the HEROES Act empowers the secretary to “waive or modify any statutory or regulatory provision applicable to the student financial assistance programs” authorized by the Higher Education Act of 1965 (HEA). The authority is triggered when the secretary “deems [such action] necessary in connection with a war or other military operation or national emergency.”  

So, what did Education Secretary Miguel Cardona do? He asserted that for a particular class of borrowers with low-to-medium incomes during the height of the COVID pandemic—a presidentially declared “national emergency” of undeniable gravity—the emergency left them worse off than they would otherwise have been to pay off their loans. The text tracks the secretary’s actions with unusual specificity. After all, the act was amended in 2003 to permit the secretary to respond not just to “wars” or “military” operations but also to “national emergencies” more generally.  

How does the majority avoid this most natural reading? Justice Elena Kagan explains the technique in dissent: “The majority picks the statute apart piece by piece in an attempt to escape the meaning of the whole.” That is, it “pick[s] the statute apart, and address[es] each segment of Congress’s authorization as if it had nothing to do with the others.” Specifically, focusing on the authority to “waive or modify” borrowers’ obligations, the majority explains why cancellation is so aggressive a change that it cannot count as “modification.” Hence, the authority to “modify” is out. The majority then states that the authority to “waive” is inapposite because the secretary is not waiving any provision of law; he is altering the borrowers’ repayment obligations. But the changes, again, are too big to be covered by his judicially narrowed authority to “modify.” 

Kagan rightly points out, however, that the majority opinion ignores that the phrase “waive or modify” expands the reach of what “modify” could have meant were it left standing alone. Consider this example. If I were to hire a staffer to “edit” my 20-page report and she just sliced out a five-page section, I could justifiably react: “Whoa! You haven’t edited my report; you’ve transformed it.” But if I were to employ someone to “rewrite or edit” a 20-page report and she sliced out five pages, I’d have to recognize that she interpreted her assignment reasonably. Likewise, allowing the secretary to “waive or modify” the legal provisions about student loans signals that the “modifications” need not be merely technical or incremental.  

Chief Justice John Roberts surprised observers like me, who expected the Court to upend the loan forgiveness program primarily by leveraging the “major questions doctrine” (MQD). Under the doctrine, judges viewing agency actions must determine if a challenged agency initiative presents a “major question” by reviewing its novelty (or lack thereof) and political and economic significance. If an executive branch policy raises a “major question,” the agency must point to highly specific statutory authorization for its action. Merely plausible textual support in the statute is not enough. The Court’s conservatives crystallized the MQD approach in the 2022 West Virginia v. EPA decision invalidating the Obama-era Clean Power Plan. It looms potentially as the Justices’ all-purpose, even if all-but-standardless, framework for overturning ambitious public interest regulation, regardless of a statute’s broad authorizing language.  

MQD does appear, in Roberts’s opinion, but only in a supporting role. He finds the economic significance of the loan forgiveness program “staggering by any measure.” Further, “the sharp debates generated by the Secretary’s extraordinary program stand in stark contrast to the unanimity with which Congress passed the HEROES Act” in 2001. “All this,” he writes, “leads us to conclude that ‘[t]he basic and consequential tradeoffs’ inherent in a mass debt cancellation program ‘are ones that Congress would likely have intended for itself.’” In other words, the scope of the program and the debate it engendered put a thumb on the judicial scale against finding statutory authority for it. Because the majority already determined, “using the ordinary tools of statutory interpretation,” that “waive or modify” means something less than one would suspect, it follows that the act falls short of the “clear congressional authorization” that MQD demands. 

The structure of Roberts’s opinion may reflect the right-wing majority’s sensitivity to the apprehension that the MQD is a license to veto those programs out of favor with the Republican right. After all, as Solicitor General Elizabeth Prelogar pointed out in oral argument, virtually any notable federal initiative will “involve substantial costs” and “trigger political controversy.” Deploying “the ordinary tools of statutory interpretation” to stack the deck before even mentioning MQD appears to be a defensive move against Kagan’s dissenting argument in the West Virginia v. EPA case that the “major questions doctrine” and similar tools can “magically appear as get out-of-text-free cards,” when reading legal text plainly would frustrate the supposed textualists’ larger deregulatory goals.  

But so faint a signal of sensitivity to criticism should not be overread. Biden v. Nebraska bodes ill for any ambition this administration may have to institute student loan relief through administrative action. At a post-defeat press appearance, Biden indicated that Cardona would try to launch such a program under the Higher Education Act of 1965. One vocal critic of the now-defunct forgiveness plan, law professor Jed Shugerman, wrote last September that the HEA exists “in plain sight” as a statute that “appears to fit the real structural social reasons for the Biden administration’s broad policy” on student loan forgiveness. Indeed, the relevant language of the HEA that delegates power to the Education Secretary—here and here, for example—is broader and less qualified than the HEROES Act.  

Unfortunately, the capaciousness of the HEA is likely to prove yet more anxiety-provoking for the Court’s conservatives. Roberts’s foundational skepticism of administrative authority will not be assuaged by language even less targeted to a national emergency. It’s hard to imagine a HEA-based program getting a warm reception from the Court’s right-wing supermajority. 

If there is any hopeful sign, it appears in Department of Education v. Brown—the Court’s unanimous final-day decision throwing out a different challenge to the loan forgiveness program for lack of plaintiff standing. Rules of standing govern who can sue in federal court and are notoriously manipulable. But, even in a right-wing cause, the Court was willing to say not everything goes. 

In Department of Education v. Brown, a federal district judge had granted standing to two individual debtors—one who would not have qualified for maximum relief under the Cardona program and one who would not have qualified at all. Their supposed “injury” was being denied an opportunity to persuade Cardona through a public comment process to adopt a yet more generous program, notwithstanding that the HEROES Act permits the secretary to exercise authority without prior public comment. Under precedent, this was ludicrous. Happily, the Brown opinion administered a drubbing to a lower court judge who had grossly distorted standing law to reach a result congenial to MAGA Republicans. Brown thus joins in spirit the Court’s actions this term denying standing to Texas and Louisiana to challenge the Biden administration’s immigration enforcement guidelines and lifting a Fifth Circuit order that would have suspended the Food and Drug Administration’s approval of mifepristone—two lower court moves that were also essentially lawless. Without saying so, the Court might be trying to tap the brakes on lower court indulgence, especially in the Fifth Circuit, of litigation against the executive branch that is attractive on the right but wholly unfounded in law. One may hope the Court was in a similar mood granting review next year of a Fifth Circuit decision holding that the Second Amendment disallows the prohibition of firearms possession by someone subject to a domestic violence restraining order. A staggeringly overbroad Louisiana federal court injunction issued July 4 against the Biden administration’s contacts with social media companies clamors for a similar rebuke. 

In Biden v. Nebraska, Roberts made explicit his concern about charges from critics both off and on the Court that a YOLO right-wing bench is overstepping its limited constitutional assignment. “It has become a disturbing feature of some recent opinions to criticize the decisions with which they disagree as going beyond the proper role of the judiciary.” (Oddly, he speaks only of “recent decisions,” given that dissenters, including Justice Clarence Thomas and the late Justice Antonin Scalia, levied numerous such accusations over the decades.) He wants readers to know that the conservative majority does not mistake the dissenters’ “plainly heartfelt disagreement for disparagement,” and “it is important that the public not be misled either.” “Any such misperception,” he concludes—presumably the “misperception” that disagreement is more than good faith disagreement—“would be harmful to this institution and our country.” Justice Kagan, for her part, thinks the majority’s pretense to business-as-usual is misleading the public. Her dissent begins: “In every respect, the Court today exceeds its proper, limited role in our Nation’s governance.” 

I customarily offer at least two responses to the cynical students I described in my opening. First, plenty of examples exist of judges reasoning in unimpeachable good faith to reach a legally sound result. My second point is that it is unlikely any Justice consciously thinks they are following their political preferences. I don’t doubt the majority is sincere in its view that something about our separation of powers is amiss if administrators can make impactful policy choices based on broad statutory texts. Some may believe, however fancifully, that a nimbler, if not clairvoyant, Congress could make all such decisions.  

The Roberts Court’s vision of administrative law, however, is suspect. Its instinct to trim the capacities of administrative agencies now aligns almost entirely with the program of one political party. Judicial review doesn’t seem like umpiring if one team always wins on the cases it cares about. Moreover, the Court’s separation of powers theory ignores that the Constitution was created in significant part to cure the weaknesses of the Continental Congress under the Articles of Confederation, not to institutionalize them. And finally, a Court obsessed with the possibility that the executive branch is making legislative policy should be more alert to the prospect that its decisions are doing the same.  

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Peter M. Shane is the Jacob E. Davis and Jacob E. Davis II Chair in Law Emeritus at Ohio State University and a Distinguished Scholar in Residence at the New York University School of Law. His forthcoming book is Democracy’s Chief Executive: Interpreting the Constitution and Defining the Future of the Presidency. Follow Peter on Twitter at @petermshane