What Supreme Court Arguments Told Us About the Future of Student Loan Forgiveness

A majority of Supreme Court justices expressed doubt over whether the Biden Administration’s student loan forgiveness plan is legal in back-to-back oral arguments on Tuesday.

Members of the court heard two cases, Biden v. Nebraska and Department of Education v. Brown, during which justices asked questions meant to assess whether the lawsuits had legal standing and whether Biden was overstepping executive authority in canceling up to $20,000 in student loan debt for some 40 million borrowers.

Justices primarily asked questions along ideological lines, though Amy Coney Barrett suggested she could possibly shift in support of Biden’s program given her skepticism of arguments that the state of Missouri had standing to bring the case forward on behalf of the financial harm loan servicer MOHELA could incur. Even if she defects, however, that would not be enough to form a majority.

The bottom line, experts say, is that it appears likely student loan forgiveness will get thrown out based on the Supreme Court’s desire to limit executive power.

“Other than Barrett, I didn’t hear another conservative focus on this in a way that showed that this is an issue that we’re struggling with,” Jed Shugerman, a professor who studies executive branch powers at Fordham Law School, says.

What the justices asked

Oral arguments began with a question by Justice Clarence Thomas, who echoed a common theme among the conservative justices: whether there was a clear provision in the Higher Education Relief Opportunities for Students (HEROES) Act that permitted the Secretary of the Department of Education to offer this program. The HEROES Act forms the legal basis for Biden’s student loan forgiveness plan. It allows the Education Secretary to “waive or modify any statutory or regulatory provision” that apply to student financial assistance programs to ensure that those affected by a national emergency “are not placed in a worse position financially.” In this case, that emergency is the COVID-19 pandemic.

Chief Justice John Roberts later brought up the “major questions doctrine,” which requires that agencies have clear congressional authorization when deciding on issues of major national significance. The language of the HEROES Act is notably quite broad, which some left-leaning justices, like Justice Elena Kagan, interpreted as providing clear authority to propose loan forgiveness.

Conservative justices also questioned whether the student loan relief program was “fair” to borrowers who had already paid off their loans, or to the millions of Americans who decided not to pursue higher education. The line of questioning was brought up based on the plaintiffs behind Department of Education v. Brown, who are suing because they say they were unjustly exempt from some loan forgiveness. (Myra Brown, one of the plaintiffs, is not eligible for any relief, while Alexander Taylor is only eligible for $10,000 instead of the $20,000 given to Pell Grant recipients). They also argue that the program did not have a notice-and-comment period, which would have allowed them to vouch for broader loan-relief.

Justice Ketanji Brown Jackson appeared to reject the fairness issue, saying that the same reasoning could be applied to any federal benefit program. “I’m thinking about the fact that as a result of COVID-19, we had massive infusions of money given to various companies [and] organizations, clearly authorized because Congress said to do it,” Jackson said. “I’m wondering whether that would be unfair to people who didn’t own a company or somebody who didn’t have… a nonprofit and wasn’t getting that money. I just don’t know how far we can go with this notion.”

What’s at risk?

The ruling would affect young Americans like 28-year-old Ramy Ahmed, who is one of the 16 million people who the Department of Education approved for loan forgiveness. None of those borrowers have received aid because of the legal challenges. Ahmed currently owes some $30,000 in student loans, and could see up to $20,000 wiped away should Biden’s loan relief plan persevere.

Even though Ahmed considers himself fortunate to work in a high-paying profession as an account executive, he says he’s “barely scratching the surface” when it comes to paying off his loans. “I’m at an age right now where I’m trying to develop a financial nest. And if I just have to pay more out of pocket every month… then that’s just gonna make all the other financial decisions I make tougher,” Ahmed tells TIME.

Experts such as Genevieve Bonadies Torres, the associate director of the educational opportunities project at the Lawyers’ Committee for Civil Rights Under Law, warn that the consequences of the Supreme Court striking down Biden’s loan relief plan will be disproportionately felt by people of color.

“The compounding effects of those harms will mean that groups won’t be able to get on proper footing for a thriving economy and have the educational opportunities that they need and deserve,” Torres tells TIME. “It will result in exacerbating the racial disparities, that were both rooted in a pandemic and also predated the pandemic.”

Cases during this term are normally resolved around June and July, but since the justices decided to expedite the loan forgiveness cases, there is a possibility an opinion could be released before then.