It's pretty clear from the oral arguments in today's SCOTUS hearing on President Biden's student debt forgiveness program that there's five, if not six votes to scrap the idea completely, and at the minimum the argument is whether even congressional approval would be constitutional.
Conservative justices holding the Supreme Court’s majority seem likely to sink President Joe Biden’s plan to wipe away or reduce student loans held by millions of Americans.
In arguments lasting more than three hours Tuesday, Chief Justice John Roberts led his conservative colleagues in questioning the administration’s authority to broadly cancel federal student loans because of the COVID-19 emergency.
The plan has so far been blocked by Republican-appointed judges on lower courts.
It was not clear that any of the six justices appointed by Republican presidents would approve of the debt relief program, although Justices Brett Kavanaugh and Amy Coney Barrett appeared most open to the administration’s arguments.
Biden’s only hope for being allowed to move forward with his plan appeared to be the slim possibility, based on the arguments, that the court would find that Republican-led states and individuals challenging the plan lacked the legal right to sue.
That would allow the court to dismiss the lawsuits at a threshold stage, without ruling on the basic idea of the loan forgiveness program that appeared to trouble the justices on the court’s right side.
Roberts was among the justices who grilled the Biden administration’s top Supreme Court lawyer, Elizabeth Prelogar, and suggested that the administration had exceeded its authority with the program.
Roberts pointed to the wide impact and expense of the program, three times saying it would cost “a half-trillion dollars.” The program is estimated to cost $400 billion over 30 years.
“If you’re talking about this in the abstract, I think most casual observers would say if you’re going to give up that much ... money. If you’re going to affect the obligations of that many Americans on a subject that’s of great controversy, they would think that’s something for Congress to act on,” Roberts said.
Kavanaugh suggested that the administration was using an “old law” to unilaterally implement a debt relief program that Congress had rejected. He said the situation was familiar: “in the wake of Congress not authorizing the action, the executive nonetheless doing a massive new program.”
That, he said, “seems problematic.”
Kavanaugh noted that the administration was citing the national emergency created by the coronavirus pandemic as authority for the debt relief program. He argued that some of the “finest moments in the court’s history” have been “pushing back against presidential assertions of emergency power.”