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Biden v. Nebraska, 143 S. Ct. 2355 (June 30, 2023)

In Biden v. Nebraska, the Supreme Court held that the Secretary of Education had exceeded his authority to implement a program that cancelled approximately $430 billion in student loan debt. This ruling represents another example of the Supreme Court limiting the exercise of administrative power under the โ€œmajor questions doctrine.โ€

In the wake of COVID-19, the federal government took a series of steps to combat financial difficulties for borrowers caused by the pandemic. In 2022, the Secretary announced a program effectively cancelling $430 billion in debt and impacting nearly all student loan borrowers. The Secretary asserted that this program was authorized by the Higher Education Relief Opportunities for Students (HEROES) Act of 2003, under which the Secretary โ€œmay waive or modify any statutory or regulatory provision applicable to the [federal] student financial assistance programs . . . as the Secretary deems necessary in connection with . . . [a] national emergency.โ€

Six states and two individual borrowers sued to enjoin the program, arguing that it exceeded the Secretaryโ€™s authority and violated the Administrative Procedure Act. The district court dismissed their complaint for lack of standing. The U.S. Court of Appeals for the Eighth Circuit disagreed as to standing and โ€œissued a nationwide preliminary injunctionโ€ against the program.

In a 6-3 opinion written by Chief Justice Roberts, the U.S. Supreme Court held that the plaintiffs had standing and that the loan-cancellation program exceeded the Secretaryโ€™s authority under the HEROES Act. The Court held that Missouri (one of the plaintiff states) had standing because the forgiveness program โ€œthreaten[ed] the direct loss of incomeโ€โ€”approximately $44 million per yearโ€”in fees for servicing certain student loans under a contract between a Missouri โ€œnonprofit government organizationโ€ and the Department of Education.

On the merits, the Court held that the Secretary exceeded his authority under the HEROES Act. The Court explained that the HEROES Act โ€œallows the Secretary to โ€˜waive or modifyโ€™ existing statutory or regulatory provisions applicable toโ€ student loans, โ€œnot to rewrite the statute from the ground up.โ€ According to the Court, the ordinary use of the word โ€œmodifyโ€ connotes โ€œincrement or limitation and must be read to mean โ€˜to change moderately or in minor fashion.โ€™โ€ Previous โ€œmodificationsโ€ under the HEROES Act included minor, procedural changes, such as reducing the number of tax forms borrowers must file, extending periods of time in which borrowers must take certain actions, and allowing oral rather than written authorizations.

The Secretaryโ€™s 2022 loan-forgiveness program, in contrast, was โ€œnot moderate or minor [and] [i]nstead created a novel and fundamentally different loan forgiveness program.โ€ Under the program, โ€œevery borrower within the specified income cap automatically qualifies for debt cancellation, no matter their circumstancesโ€โ€”a stark change from existing circumstances under which student loan debts may be cancelled.

The Court likewise held that the program was not authorized by the Secretaryโ€™s โ€œwaiverโ€ power under the HEROES Act. Previous โ€œwaiversโ€ were tied to specific legal requirements; the new programโ€™s โ€œaddition of . . . new and substantially different provisionsโ€ was a โ€œmodification,โ€ not a โ€œโ€˜waiverโ€™ of the old [provisions] in any meaningful sense.โ€

In response to the Secretaryโ€™s assertion that the program was consistent with the purpose of the HEROES Act, the majority rejected this argument under the major questions doctrine, discussed last term in West Virginia v. EPA. Given the โ€œstaggeringโ€ โ€œโ€˜economic and political significanceโ€™ of the Secretaryโ€™s action,โ€ the Court stressed caution โ€œbefore concluding that Congress[] meant to confer [the] powerโ€ to take those actions on the Secretary.

As with West Virginia v. EPA, the Court concluded that a โ€œdecision of such magnitude and consequence on a matter of earnest and profound debate across the country must res[t] with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.โ€ Absent such โ€œclear congressional authorization,โ€ the Secretaryโ€™s actions could not stand.

Justice Kagan authored a dissenting opinion, joined by Justices Sotomayor and Jackson. Justice Kagan disputed Missouriโ€™s standing because the stateโ€™s nonprofit, loan-servicing organization, and not the state itself, would lose the loan-servicing fees. The dissent also argued that the text of the HEROES Actโ€”that the Secretary could โ€œโ€˜waive or modify any statutory or regulatory provisionโ€™ applying to federal student-loan programsโ€ in times of โ€œnational emergencyโ€โ€”was sufficient statutory authorization for the loan-cancellation program. The majorityโ€™s reliance on the major questions doctrine, Justice Kagan wrote, โ€œprevents Congress from doing its policy-making job in the way it thinks best.โ€

Key Takeaways

  • The Supreme Court has again used the major questions doctrine to constrain actions by an administrative agency.
  • While the Supreme Court did not reference the โ€œChevron doctrineโ€ in its decision, this ruling, like West Virginia v. EPA, signals less deference to administrative actionโ€”and perhaps the eventual demise of Chevron itself.

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