Biden’s Latest Student Loan Forgiveness Plan Probably Won’t Work, Experts Say

Although the Education Department is moving forward in its attempt to enact student loan forgiveness, legal experts predict it's unlikely President Biden will be able to deliver on this campaign promise.

Legal scholars and professors who spoke to TIME say that, while they agree the Department of Education may have the authority to grant relief under the Higher Education Act (HEA) of 1965, the program does not have strong standing in the arms of a conservative high court.

“The views of the Supreme Court have been that unless Congress is explicitly clear and thorough with the amount of detail about the scope of authority, it's going to look very unfavorably on exactly these sorts of broad, undefined grants of authority,” says Luke Herrine, Assistant Professor of Law at the University of Alabama.

In June, the Supreme Court ruled against a loan relief program that would have discharged up to $20,000 in student loan debt for some borrowers. The Education Department sought to justify that plan under the Higher Education Relief Opportunities for Students (HEROES) Act of 2003, but conservative justices said it did not have the authority to do so.

Now, the Education Department has pivoted toward adopting new regulations in the HEA to clarify how the Secretary of Education can waive student debt. Negotiators who are deciding on new rules met in October, with two more meetings scheduled for November and December.

Here’s what legal experts said about the future of student loan forgiveness. 

What is the Biden Administration’s new student loan relief plan?

The Biden Administration is currently seeking student loan relief through the HEA. This act controls federal financial-aid mechanisms like student loans. It also allows the Secretary of Education to “cancel or reduce” loans for certain categories of people, such as public servants or people who are “permanent and totally disabled,” according to the Biden v. Nebraska opinion, which struck down an earlier student loan forgiveness plan.

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The Biden Administration is in the process of revising HEA provisions through a process known as negotiated rulemaking. Jed Shugerman, a professor at Boston University School of Law, says previous administrations “narrowly interpreted” the HEA statute, meaning they limited how the Education Department could use this provision to waive loans. Proposed changes would redefine who is eligible for relief and how much will be waived. This procedure will take at least a few more months, as representatives from various universities and organizations meet to discuss the best course of action before it is finalized.

The exact parameters of Biden’s newest student loan relief effort have not yet been established. For now, the Education Department has only revealed that they are hoping to help borrowers who owe more than the initial loan they took out, have been paying off their loans for at least 25 years, took out student loans that gave them “unreasonably” high levels of debt, or are eligible for repayment programs but are not enrolled. 

Cary Coglianese, a professor at the University of Pennsylvania Carey Law School, says that borrowers should not expect the relief to be as sweeping as previous attempts. “This is a more circumscribed initiative,” Coglianese says. He also predicts that new HEA regulations that would allow for student loan relief might be finalized as early as the upcoming spring, although the timeline depends on how fast negotiators meet a consensus. 

Possible legal challenges

Under the negotiated rulemaking process, negotiators representing interested parties come together to discuss regulatory changes. Coglianese says that when agencies use the negotiated rulemaking process to enact a policy, there is hope that the agency can prevent litigation from contesting the regulation because interested parties have already come together to reach a consensus on a rule. But, he clarifies, that negotiation also poses other problems. 

“Even if [negotiators] achieve a consensus on the proposed rule, the agency still has to put it out for public comment. And in responding to public comments, the agency might change the proposed rule from what the negotiators thought they had agreed to, and that can generate new conflict that wouldn't otherwise have been there,” Coglianese says. “There's very little guarantee that this won't end up in court.” 

Experts remain conflicted on whether student loan relief is viable. Asked by TIME, law professors—even those who believe the Department of Education does have the authority to use this method to waive debt—unanimously said that the Biden Administration’s loan relief plan will be challenged in the courts.

Much is contingent on the timing of this relief. A new student loan relief plan will likely not come out until next year, which happens to be an election year. Assuming that Biden’s student loan relief plan would be legally contested immediately after its announced, the case would likely not be resolved until after the election. That means, Coglianese says, any prospect of student loan relief will be forfeited if a Republican Administration wins election.

At the same time, even if the current administration stays in power, Shugerman says, the case could again reach the Supreme Court, which would probably strike down the program again.

“The Roberts Court has already shown their hands,” Shugerman says, referencing the Court’s previous opinion on student loans. “The Roberts Court went far beyond simply making basic points about why it was weak… to a much more conservative ideological standard…that would also make it hard for any administration to [enact] anything like this.”