Stop me if you’ve heard this before. I politician addresses a rally in Washington, urging the crowd of activists to affect an official proceeding. I am of course talking about Senator Elizabeth Warren addressing supporters of student loan debt cancellation outside the Supreme Court while the justices heard arguments on whether the HEROES Act gives the secretary of education the power to do just that. ABCNEWS.com quotes Senator Warren as saying, “We are here today because President Biden has the legal authority to cancel student loan debt. Let me say that one more time and make ‘em hear it inside.” It is different less in kind than degree (albeit a lot of degree) from what Donald Trump did on January 6, 2021.
Senator Warren is then quoted as saying, “It is time for the Supreme Court to stop playing politics and just apply the law and let us cancel this debt.” What is holding a rally outside the court building, if not politics? I get it, it’s different. She’s on the right side.
While the nine justices are not as divorced from politics as one might hope,1 their treatment of this issue can hardly be called playing. The Supreme Court is involved because the Biden Administration asked it to be when it sought review of two lower court actions that stalled the scheme. The Court granted certiorari before judgment in the courts of appeals (rare); did so within two weeks of the initial application; and scheduled the cases to be heard within a matter of months. As usual, a decision is likely before the Court breaks for the summer in late June or early July.
This timeline is much quicker than the Biden Administration’s revealing of its student loan forgiveness plan. President Biden ran on the promise to cancel $10,000 of debt per borrower, a lot like the program he ultimately approved. He took the oath of office on January 20, 2021. Of course, first he had to deal with a Justice Department legal opinion that he (or perhaps more specifically, the secretary of education) did not have the authority to cancel the debt.((As I have previously written, then-House Speaker Nancy Pelosi agreed with this position.)) The plan was finally announced in August 2022, some 19 months later, just in time for the mid-term campaign season. Then it became urgent as the Biden Administration tried to run out the clock to prevent challenges.
Lets be clear. For many who are criticizing the court, the only justification that is needed for the program is that it is good policy, regardless of by whom or how it was created. The substance rather than the process is what’s important. But, as I said before, “While many might accept rule by an all wise and benevolent despot, remember the democracy is a process.” Or, as I said in another context, “The hypothetical reader of this blog would recognize this logic– it is what supported many of the executive orders during the rule-by-decree phase of the COVID-19 pandemic: ‘the governor should have the power because the governor makes better choices than the legislature’ (or something like that).”
Jay Bohn
March 6, 2023
- While there is some merit in the comment that the “fairness” of the program is not a relevant consideration for the Court, neither is the solicitor general’s assertion at the commencement of the argument [transcript here] that “Over the past three years, millions of Americans have struggled to pay rent, utilities, food, and many have been unable to pay their debts.” [↩]