Robustly applying its newly created constitutional tool for nullifying sweeping new federal programs, a divided Supreme Court on Friday ordered an end to President Biden’s plan to cancel more than $430 billion of college student loan debt.
In doing so, the Court applied that mechanism for the first time to stop a program designed to cope with an emergency – here, a program that the Biden Administration adopted last year during the covid-9 health crisis, based on authority Congress gave the government in 2002 soon after the 9/11 terrorist attack.
The 6-to-3 decision, issued on the last opinion day of the Court’s term in an opinion by Chief Justice John G. Roberts, Jr., showed clearly the judicial might of the so-called “major questions doctrine.”
Not since the 1930s, when an earlier conservative-dominated Court decimated President Franklin Roosevelt’s Depression era “New Deal,” has the highest court gone as far as in the past two years to curb expansive use of authority by agencies of the federal Executive Branch.
In a sense, that is a continuation of the Trump Administration’s constant campaign of assault on what President Donald Trump called “the deep state.”
The “major questions doctrine” – a theory of judicial interpretation of federal laws that has still not been spelled out fully by the Court – holds that federal agencies’ adoption of sweeping government programs with wide social, economic and political impact are unconstitutional unless Congress has explicitly and clearly authorized exactly such a program.
Given that normal legislative activity in Congress is often less than clear or explicit because of multiple compromises in the process, the doctrine appears exceedingly hard to satisfy.
Besides using it Friday to end loan relief for some 43 million college students or graduates, the Court last year applied it to scuttle a another pandemic response — President Biden’s mandate that millions of workers either be vaccinated or tested frequently – as well as scuttling a Biden program to reduce toxic gas emissions from electricity-generating plants.
The doctrine is based on a strict interpretation of the Constitution’s grant of legislative power to Congress under Article I; it treats wide-ranging programs by federal agencies created under Article II as if they were themselves legislating instead of carrying out Congress’s will. It puts a much heavier burden on Congress, as it writes laws, to speak with utmost clarity in giving power to federal agencies. Some members of Congress are now exploring potential new laws to curb the impact on Congress of the doctrine.
Again, as the Court has done before, the Chief Justice’s opinion on Friday sought to argue that the doctrine is really not new, and that it traces its origins back for years, perhaps as far back as early this century.
The doctrine has led to serious challenge in the legal academy as a new invention of the conservative Court that adds to new questions about the Court’s legitimacy as a court. One of the liberal Justices, Elena Kagan, wrote the dissent Friday adding to that criticism, prompting some replies from the Chief Justice as well as a separate opinion by Justice Amy Coney Barrett, seeking to defend the doctrine. Barrett is a former law professor, so she presumably thought she would be in a position to answer scholars’ critiques.
The newly dominant, six-Justice majority was together in the new decision: Roberts and Barrett, along with Justices Samuel Alito, Jr., Neil M. Gorsuch, Brett M. Kavanaugh and Clarence Thomas. Joining Kagan in dissent were Justices Ketanji Brown Jackson and Sonia Sotomayor.
The crux of the majority ruling against the student loan relief was that Congress did not explicitly authorize such a broad program under a 2002 law, the so-called “HEROES Act” – short for the post-9/11 law named the Higher Education Relief Opportunities Act.
That act gave federal education officials the authority to “waive” or “modify” federal provisions on financial aid to students during a war or other national emergency. Last year, the U.S. Department of Education used that authority to adopt, during the pandemic emergency, the loan forgiveness program that must now be shut down.
The Court majority said that the program was not a modification or a waiver of anything, but an entirely new program that Congress had definitely not authorized in the HEROES Act.
The financial obligation of duties to repay loans under the program has been suspended several times, but the current Congress recently passed a new law requiring repayments to resume in September. The Biden Administration must now work out the details of how repayments are to be made, and to wind down the entire program, including refusing any new applications for relief.
Besides issuing the controversial ruling on student debt, the Court on Friday ruled – for the first time – that states act unconstitutionally if they require businesses that are engaged in creative activity (here, a Colorado designer of internet websites) to provide their services to same-sex couples as they plan their weddings, when the refusal is based on personal beliefs.
While the business owner in this case based her objections on her religious beliefs that marriage should only be between a woman and a man, the Court had granted review of her claim only on her right of free speech, not her right to freely exercise her religion. (Both are protected in separate clauses of the First Amendment.) The resulting opinion was crafted as a protection of “the freedom to speak as you will and to speak as you think,” as the opinion phrased it.
It was not clear, in real-world terms, whether that would be a broader right to refuse business service to same-sex couples than if the right at issue were religious freedom. It is not clear on what other belief system one could object to same-sex marriage; perhaps a moral objection? The implications may require a good many future court cases to sort out.
The Court ruled by a 6-3 vote – six conservatives in the majority, three liberals in dissent – in an opinion by Justice Gorsuch.
The new ruling, shaped as it was as decision on free expression, could mean that it would also apply to wedding photographers, other wedding service-providers, or others in a creative business – whatever that encompasses.
Some further clarity on the dispute when it does involve a refusal to deal based on religion could come in Oregon case, involving a couple that refused to prepare a custom-made cake for a same-sex couple. The Justices on Friday sent that case back to state courts for a new look, in the wake of the Colorado web page designer case’s outcome.
Whether or not the Court meant, by implication, to enhance religious exercise, that may well be its practical result. The ruling thus may be understood as another by this conservative Court in the always-controversial arena of religion and government. If so, it was the second such decision this week.
On Thursday, in a case involving a postal worker whose religion required him to avoid work on Sundays, the Court expanded the duty of employers under federal civil rights law to rearrange their operations in order to “accommodate” the needs of one of their worker’s faith dictates or principles.
The conservative Court that now sits has been engaged in a steady process of enhancing the freedom to exercise one’s religion, while simultaneously narrowing the constitutional command to avoid promoting or endorsing religious faiths or practices. Both are mandates of the First Amendment that are often in tension with each other.
After handing down its final opinions of the term on Friday, the Court released 57 pages of orders on other pending cases, including agreements to rule next term on six new controversies. Perhaps the most important of these is an appeal by the Biden Administration, challenging a lower-court decision striking down a federal law barring guns for people who are under domestic protection orders. That could provide new clarity on how far the Second Amendment right to have a gun extends, at a time when gun violence is spreading across the nation.
