Jul 7, 2023

Biden's student debt plan struck down.

Biden's student debt plan struck down.
Photo by Alice Pasqual / Unsplash

Plus, a reader question about the latest from the border.

I’m Isaac Saul, and this is Tangle: an independent, nonpartisan, subscriber-supported politics newsletter that summarizes the best arguments from across the political spectrum on the news of the day — then “my take.”

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Today's read: 11 minutes.


We're breaking down the Supreme Court's ruling on student debt cancellation. Plus, a question about the state of the border.

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Quick hits.

  1. Days after a confrontation with Rep. Lauren Boebert (R-CO) on the House floor, Rep. Marjorie Taylor Greene (R-GA) was voted out of the House Freedom Caucus. (The vote)
  2. Twitter threatened a lawsuit against its new Meta-backed competitor Threads, which passed 30 million downloads in 24 hours. (The threat)
  3. Florida Gov. Ron DeSantis reported $20 million of second quarter campaign fundraising, lagging behind former President Trump's $35 million. (The fundraising)
  4. Yevgeny Prigozhin, the former chief of the Wagner Group, is reportedly returning to Russia as supporters call for a mass gathering at his home city of St. Petersburg. (The return)
  5. The Biden administration says it plans to send cluster munitions to Ukraine. The weapons are widely banned because they can cause injuries to civilians. (The decision)

Today's topic.

Editor’s note: Given that we are on a short week and had three monumental Supreme Court rulings come down last week, we’ve decided to send a Friday edition to everyone today. That being said, if you are enjoying our work and want to unlock future Friday editions, please subscribe here.

Biden v. Nebraska. On Friday, the Supreme Court ruled in a 6-3 decision that the Biden administration acted unconstitutionally when it announced the cancellation of $400 billion in student loans last year. All six Republican-appointed justices were in the majority while all three Democratic-appointed justices joined the dissent.

Refresher: The Higher Education Relief Opportunities for Students (HEROES) Act was passed in 2003. HEROES was designed to grant waivers or relief to student loan recipients impacted by a war, military operation, or national emergency. Both former President Trump and Biden used the HEROES Act to suspend student debt payments, but Biden took it a step further, exercising the authority granted by the act to cancel $10,000 in debt for individuals earning less than $125,000 per year and $20,000 in debt for those who received Pell grants designated for low-income families.

The ruling: We covered oral arguments in March. The court was examining two questions: Did the litigants challenging the administration's program have standing to sue, and did the administration violate a separation of powers principle known as the "major questions doctrine" by acting without explicit congressional authorization to implement a program.

On standing, the justices first upheld a U.S. Court of Appeals ruling for the 8th Circuit that Missouri had a right to sue because it created and controls the Missouri Higher Education Loan Authority (MOHELA), which is a servicer and holder of student loans. Debt cancellation would have cost MOHELA $44 million per year, which the justices determined would also harm Missouri. The state had created the program to help state residents obtain loans to pay for college, and if the cancellation program had gone into effect, its revenues would have fallen.

Once the court determined Missouri had a right to challenge the program, it also determined that the HEROES Act gave the Education Secretary power to waive or modify laws related to student loans. But the court interpreted "modify" to mean that the Biden administration could make "modest adjustments and additions to existing provisions" but not "transform" those provisions. In the majority’s opinion, Justice Roberts wrote that Biden's cancellation was attempting to create a novel and fundamentally different loan forgiveness program.

Roberts also rejected the idea that mass student debt relief was consistent with the purpose of the HEROES Act, writing that it is a question of who has the power to cancel loans, not whether it should be done. In that regard, Roberts invoked the major questions doctrine, the idea that there must be clear and explicit authorization from Congress for a federal agency to decide an issue of major national significance. Roberts wrote that the HEROES Act did not authorize the debt-relief program at all.

In her dissent, Elena Kagan argued that the states suing did not have standing. MOHELA could have filed its own lawsuit, Kagan said, but it did not — instead, Missouri sued on its behalf. She also wrote that the debt cancellation was authorized by the plain text of the HEROES Act, which "provides the Secretary with broad authority to give emergency relief to student-loan borrowers, including by altering usual discharge rules." Kagan argued that only by picking the act apart and addressing sections of congressional authority as if they were unrelated could the majority make the act inconsequential.

Shortly after the ruling, the Biden administration announced a new plan for cancellation through the Higher Education Act.

A reminder: We won’t be focusing on the merits of student loan cancellation, which we covered here and here, but instead on the program’s legality and the latest ruling. You can read our coverage of oral arguments here.

Today, we're going to take a look at some arguments about the ruling from the right and left, then my take.

What the right is saying.

  • The right argues that the court got it right, and that Biden vastly exceeded his authority.
  • Some argue that Biden violated the obvious context and intent of the HEROES Act.
  • Others suggest Biden still has a path to forgiving loans — via Congress.

In CNN, Ilya Somin said the court "got it right" on student loans.

"The Biden administration was relying on a provision of the act that gives the secretary of education authority to 'waive or modify' federal student loan requirements in order to ensure that recipients of financial assistance who have been affected by a national emergency ‘are not placed in a worse position financially in relation to that financial assistance’ because they were affected by the emergency,” Somin wrote. Further, the administration “claimed beneficiaries of the loan-forgiveness plan qualified because they have been negatively affected financially as a result of the Covid-19 national emergency.”

But the White House "presented no proof that" recipients of the cancellation "were placed 'in a worse position financially'" because of Covid. "Over 80% of employed college graduates did not even report a decrease in salary during the pandemic, and few suffered prolonged unemployment, according to data from the US Bureau of Labor Statistics." The court also "rightly ruled" that Missouri had standing "because it has a state-created student-loan servicer that stands to lose revenue if some of the loans it processes are forgiven. An injury to that entity is an injury to the state, because it’s a public corporation 'created' and under the control of the state, and a 'part of the Government itself.'"

In National Review, Andrew C. McCarthy praised Amy Coney Barrett for her response to Justice Elena Kagan.

"Justice Elena Kagan’s searing criticism of the major-questions doctrine as a ‘get-out-of-text-free card’ clearly left a mark," McCarthy said. "Kagan, the Court’s most formidable progressive, is a bureaucratic maximalist: If, read in a vacuum, the text of a statute can plausibly be construed as a delegation by Congress of enormous power to an administrative agency, then the textualist must vindicate that delegation, even if it defies history, common sense, and our Constitution’s vesting in Congress of all legislative power — i.e., the authority to enact major policy."

Barrett countered that "a vacuum is no home for a textualist." Not only did the court come to its conclusion without relying on the major questions doctrine, but "Barrett emphasizes that a textualist is not a literalist. The major-questions doctrine, she explains, is not a license to flee from text. To the contrary, it stresses 'the importance of context' (emphasis in original), providing 'a tool for discerning — not departing from — the text’s most natural interpretation.' ... The doctrine doesn’t change the words that Congress has used, much less instruct courts to give the words an interpretation that is less plausible than their ordinary meaning." It does the opposite: "It derives the best interpretation of the words based on the circumstances of their enactment — based on their context."

In The Washington Examiner, Timothy P. Carney quipped that "Democrats could still forgive student loans with this one trick."

"The Supreme Court struck down President Joe Biden’s obviously unconstitutional attempt to forgive half a trillion in student loan debt. This should surprise nobody, given that virtually everyone admitted the president does not have the authority to do this. (Here is then-House Speaker Nancy Pelosi stating as much.),," Carney said. But if Democrats actually “wanted to forgive student loans, though, there’s a tricky way they could do that, and Pelosi knows what it is.

"Yes, there is a branch of the federal government that actually has the constitutional authority to pass laws, and it’s not the executive. Congress could pass a law that does exactly what Biden’s executive order pretended to do," Carney said. “And if Democrats cannot get enough votes to pass their bill through Congress, they could try politics... If their bill really is that popular, either they can pressure enough Republicans to flip, or they can defeat enough Republicans for opposing it and thus take back Congress and immediately pass their bill in January 2025."

What the left is saying.

  • Many on the left are critical of the ruling, saying the court ignored the plain text of the HEROES Act.
  • Some disagree with the court, suggesting the ruling was a lawless and partisan decision.
  • Others argue that the conservative justices have become the judicial activists  they so often criticize. 

In The Los Angeles Times, Erwin Chemerinsky said the Supreme Court rewrote the law to stop student loan forgiveness.

"A federal statute, the Higher Education Relief Opportunities for Students Act of 2003 (HEROES Act), explicitly authorizes the Secretary of Education to 'waive or modify' student loan obligations. That is exactly what President Biden did in his loan forgiveness program, but the court, ruling 6-3, decided that he lacked authority under the law to take this step, which would have helped more than 40 million people," Chemerinsky said.

"As Justice Elena Kagan wrote in dissent, none of these state governments would suffer any injury from the Biden student loan forgiveness program," Chemerinsky wrote. "In fact, just last week, the Supreme Court ruled that Texas and Louisiana lacked standing to challenge the Biden administration’s change in immigration policy. The court in that immigration law case said that a state cannot sue the federal government just because of an ideological disagreement with the president’s policies. Based on that principle, the court should have thrown out Missouri’s suit as well."

In Vox, Ian Millhiser called it a "lawless, completely partisan student loan decision."

The decision "is complete and utter nonsense," Millhiser wrote. "It rewrites a federal law which explicitly authorizes the loan forgiveness program, and it relies on a fake legal doctrine known as 'major questions' which has no basis in any law or any provision of the Constitution." There are legitimate policy debates about the efficacy or fairness of student loans, but its legality should not have been a question. The HEROES Act gives "sweeping authority to 'waive or modify any statutory or regulatory provision applicable to the student financial assistance programs... as the Secretary deems necessary in connection with a war or other military operation or national emergency.'"

"This is expansive language," Millhiser said. "While it only applies during a ‘national emergency,’ when such an emergency (such as the Covid-19 pandemic) arises, the secretary may either eliminate (‘waive’) or change (‘modify’) student borrowers’ loan obligations ‘as the Secretary deems necessary.’” Meanwhile, the major questions doctrine is "completely made up" and "appears nowhere in the Constitution, and nowhere in any statute, and was invented largely by Republican appointees to the Supreme Court."

In MSNBC, Michael A. Cohen said the Supreme Court's conservatives "are doing exactly what they claim to detest."

"One would be hard-pressed to find two phrases that more aptly describe the actions of the Supreme Court, including its three Trump appointees, than 'judicial activism' and 'legislating from the bench,'" Cohen said. "In this case, Congress passed a law that authorized the secretary of education to forgive student loans. The secretary interpreted the law to allow him to forgive a set amount of student loans. But rather than deferring to the executive branch or allowing Congress and the White House to reach a compromise solution, the court instead imposed its own judgment."

"Imposing the viewpoint of judges over that of the people’s elected representatives has become a consistent and disquieting trend in the Roberts Court," Cohen wrote. "Last year, in West Virginia v. EPA, the court blocked a major climate change regulation to clean up power plants, even though the Clear Air Act authorized such action. In the process, the court enacted a new and wholly invented theory called the 'major questions doctrine,' which allows the court to restrict the actions of a regulatory agency in cases where a regulation exercises 'powers of vast economic and political significance.' How does the court decide what is of 'vast economic and political significance' and thus [justify] its intervention in decisions that are traditionally made by elected officials? Your guess is as good as mine."

My take.

Reminder: "My take" is a section where I give myself space to share my own personal opinion. If you have feedback, criticism, or compliments, don't unsubscribe. Write in by replying to this email, or leave a comment.

  • I've said repeatedly that I did not think Biden had the authority to do this, so my position here should not be a surprise.
  • There were still serious concerns about standing, and I don't feel that they were totally resolved.
  • Still, the court's logic is easy enough to follow, and I don't think it's so ridiculous as to render this case moot.

If you have been reading this newsletter for the last year, my opinion here is not going to be much of a surprise. I have said repeatedly that regardless of how you felt about the merits of student debt cancellation, Biden did not legally have the authority to do this.

My writing from March on the legality of canceling the loan debt is still pertinent today, so I'll repost that portion of it below:

Last time we wrote about the legality of this cancellation, I said that it was clear to me that Biden was using the HEROES Act in a context Congress hadn't intended. Several lawmakers who drafted that law have said as much in an amicus brief, and plain common sense will get you there. The bill was passed in the wake of 9/11 and was primarily intended to give soldiers who were deployed overseas relief from their student debt (secondarily, it was also drafted to help people facing natural disasters).

Further, Biden's plan is overly broad and does not have nearly enough tests to ensure it is addressing "affected individuals" who are "placed in a worse position financially" because of the emergency it is ostensibly responding to (in this case, Covid-19). As I wrote in August, not everyone with student debt who made less than $125,000 in 2020 and 2021 is now worse off financially because of the pandemic. Some are very obviously doing better. This is to say nothing of the fact the Biden administration has been inconsistent with its framing of whether we were in a national emergency or not.

However, I also wrote at the time that the states had a "standing problem," in that it was not clear to me whether they had a right to sue. In their oral arguments, they seemed ill-prepared to make their standing case, as if they presumed the court was going to find a way to side with them regardless. Even Justice Amy Coney Barrett seemed a bit stuck on this during oral arguments:

"It would be hard to see how a win for the state would benefit MOHELA, or a win for MOHELA would benefit the state, if the assets are completely separate — you don't get any money out of it," Barrett told Nebraska Solicitor General James Campbell, who was representing the states. "If the state wanted money from MOHELA right now, does the state have the authority to do that?"

Campbell claimed the state had an interest in protecting MOHELA, and the state legislature could theoretically take action to request money, but Barrett seemed unconvinced. "Do you want to address why MOHELA's not here?" she asked. Campbell maintained the state "has the authority" to speak for MOHELA, but couldn't seem to explain why or how.

The court, however, was able to satisfy the question for itself. As the Biden administration concedes, the cancellation program would cost MOHELA $44 million. MOHELA was created and is managed by the state. And while it's true that the cancellation would not hurt the state treasury and that MOHELA is a separate legal entity, the language of the opinion from there is plain enough to simply copy and paste:

"The harm to MOHELA in the performance of its public function is necessarily a direct injury to Missouri itself," the court said. "The Secretary also contends that because MOHELA can sue on its own behalf, it—not Missouri—must be the one to sue. But where a State has been harmed in carrying out its responsibilities, the fact that it chose to exercise its authority through a public corporation it created and controls does not bar the State from suing to remedy that harm itself."

That logic tracks well enough for me. Unlike yesterday, when we wrote about the 303 Creative decision, the case here is not a hypothetical. There is a real law in question, with a real action being taken by the Biden administration, with real costs to MOHELA and the states involved in the lawsuit and the students who are trying to get relief. Taking up this case was necessary. 

And given just how overreaching the Biden administration's goal was in canceling all this debt, I think the court was right to hear this case and right to rule the way it did. There isn't much ambiguity for me here on the legal questions at hand — and the answer is the same as it is for so much else: If Biden wants to cancel hundreds of billions of dollars of student loan debt, he needs Congress to help him do it.

Your questions, answered.

Q: I was curious if there has been much change at the US-Mexico border since the end of Title 42? I remember in the lead up and immediate aftermath there wasn't nearly as much "chaos" as was initially expected, but I didn't know if any of that has changed now that more time has passed and everyone has gotten more of a feel for how the border policy is post Title 42.

— Daniel, Louisville, Kentucky

Tangle: That's a really good question, and I think your instinct to wait for more time to pass to ask is a good one. However, I actually don't think quite enough time has passed for us to really know yet.

As a reminder, Biden ended Title 42 on May 11. The pandemic-era rule had allowed the prompt expulsion of migrants under public health concerns. Following Biden's decision to end the policy, many pundits expected border crossings by unregistered migrants, as measured by border encounters, to go up. However, the number of border encounters has actually decreased since then.

As we covered in Wednesday's "Under the radar" section, there are a few theories as to why: Migrants might be in "wait and see" mode, trying to understand the new policies. New opportunities to immigrate legally might be reducing illegal immigration. Maybe increased enforcement in Mexico and Guatemala is reducing border crossings — or maybe it’s some combination of the three. Or it could just be too soon to tell. 

In the context of the last few years, the decrease has been pretty minor. There were fewer law enforcement encounters at the border in June than there were in May, and, yes, there were 35,000 fewer encounters in June than there were in June of 2022. However, that's still 25,000 more than there had been in 2021 — and about 180,000 more than there were in May of 2020 under President Trump.

We don't know much about how the pandemic influenced migration patterns, but we do know that where migrants are coming from has changed. The number of migrants coming from Ecuador, Brazil, Nicaragua, Venezuela, Haiti, and Cuba has increased tenfold over the past three years. That likely has more to do with factors within those countries than who our president is.

In part because of this new make-up of migrants, border encounters are peaking later. Rather than peaking in March, as it has for years, the number of border encounters is now peaking between July and September. So we should really wait until October to get a full picture of what the impact of ending Title 42 is on border crossings.

Want to have a question answered in the newsletter? You can reply to this email (it goes straight to my inbox) or fill out this form.

Under the radar.

"What do a democratic socialist, a Republican war veteran and a long-haired lobbyist from Montana have in common? They want the government to relax about certain mind-altering substances." That's a line from a new Washington Post story (paywall) about an unusual bipartisan bond forming between Rep. Alexandria Ocasio-Cortez (D-NY), Rep. Dan Crenshaw (R-TX), and Montana lobbyist Tom “One Who Rides His Horse East” Rodgers. Crenshaw and Ocasio-Cortez are racking up support, and even have a senator from each side of the aisle — Sen. Rand Paul (R-KY) and Sen. Cory Booker (D-NJ) — interested in helping them out. The goal is to unlock government-funded studies of therapeutic psychedelics, which have shown promising results treating victims of sexual abuse, veterans with PTSD, and debilitating depression. The Washington Post has the story


  • $1.75 trillion. The total amount of student loan debt in the United States (including federal and private loans).
  • $28,950. The average amount owed per borrower.
  • 55%. The percentage of students from public four-year colleges who have student loans.
  • 47%. The percentage of Americans who supported Biden's student debt cancellation plan, according to an April poll from Reuters.
  • 41%. The percentage of Americans who did not support Biden's student debt cancellation plan, according to an April poll from Reuters.
  • 83%. The percentage of Americans with student debt who supported the plan.

The extras.

  • One year ago today we wrote about the death of Shireen Abu Akleh.
  • The most clicked link in yesterday's newsletter was the ad in the free version for GIST sports.
  • Divided: Tangle readers were split on yesterday's poll about the Supreme Court's decision on 303 Creative. 44% said it was the wrong decision and will have mostly bad consequences, while 33% said it was the right decision and will have mostly good consequences. 14% said it was the right decision but will have mostly bad consequences, while 3% said it was the wrong decision but will have mostly good consequences. 7% were unsure, or had no opinion.
  • Nothing to do with politics: Let's play the Feud — Google-Autocomplete-style.
  • Take the poll. What do you think of the Supreme Court's latest decision? Let us know!

Have a nice day.

Canadian Marcus Pukonen will be walking across Toronto tomorrow. His walk will complete an eight-year journey around the globe without the assistance of any motorized device. Pukonen left Toronto in July of 2015 in a canoe and has walked, skied, bicycled, sailed, kayaked, paddle-boarded, and pogo-sticked his way back to where he started. On his journey, he endured freezing conditions skiing across British Columbia, smoggy traffic bicycling across southeast Asia, an eight-month covid lockdown in northern India, and choppy seas sailing across the Indian Ocean. Now, Pukonen is inviting anyone in the area down to the Balmy Beach Club in Toronto tomorrow afternoon (Saturday, July 8th) to celebrate the end of his journey. CBC has the story.

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Isaac Saul
I'm a politics reporter who grew up in Bucks County, PA — one of the most politically divided counties in America. I'm trying to fix the way we consume political news.