On February 28, 2023, the United States Supreme Court heard oral arguments in two cases opposing President Biden’s student debt relief plan, which seeks to cancel up to $20,000 in student loan debt per borrower. Brian Backstrom, director of education policy studies at the Rockefeller Institute of Government, wrote an analysis that detailed how the student debt relief plan made its way to the Supreme Court and previewed the court cases to be heard.

On this episode of Policy Outsider, Brian joins to highlight the arguments presented in the cases, share how the justices responded to those arguments, and point to what student loan borrowers can expect as the cases move forward.


Brian Backstrom, director of education policy studies, Rockefeller Institute of Government

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SCOTUS To Decide: Is the Biden Administration’s Student Debt Cancellation Program Legal?

  • Transcript

    Transcript was generated using AI software and may contain errors. 

    Alexander Morse  00:05

    Welcome to Policy Outsider presented by the Rockefeller Institute of Government. I’m Alex Morse. On February 28, 2023, the United States Supreme Court heard oral arguments in two cases opposing President Biden’s student debt relief plan. For a quick refresher, in August of last year, President Biden proposed canceling up to $10,000 in federal student loan debt, or up to $20,000 in loan debt for those students who received financial aid from the needs-based Pell Grant program. This student debt relief plan was blocked in November after several challenges were heard by lower courts. Some of these cases made their way to the Supreme Court. And now the Supreme Court rules the fate of the proposed student debt relief plan. On today’s episode, we talked to Brian Backstrom, director of education policy studies at the Rockefeller Institute of Government. Brian, who has been following and writing about the student debt crisis and proposed relief plan, tuned into the testimony and will join us to touch on several takeaways, including what are the two cases the Supreme Court heard how the plaintiffs and defendants presented their cases, any surprises that may have come out of the oral arguments, and what student loan borrowers can expect as the case moves forward. Coming up next. I’m joined today by Brian Backstrom, director of education policy studies at the Rockefeller Institute of Government. Thanks for joining us today.

    Brian Backstrom  01:39

    Happy to be here. Thanks for having me on.

    Alexander Morse  01:41

    As I mentioned at the top of the podcast, you’ve been monitoring the student debt problem very closely as part of your research for the Rockefeller Institute. And you listen to the Supreme Court’s hearing of oral arguments for the Biden administration’s student debt relief plan to cancel up to $10,000 or $20,000 in federal student loan debt. Can you summarize what these two cases are and the basic points of contention against Biden student debt relief plan?

    Brian Backstrom  02:09

    Well, there are two cases that the Supreme Court heard in the first one Biden V. Nebraska, six states oppose the plan on a couple of different grounds. First, they said the Biden administration didn’t have the authority to propose such a sweeping plan. And second of all, that they were financially hurt by the program. In the second case, Board of Education v. Brown, came out of Texas with two individual student loan borrowers who said they never got a chance to comment on the plan. And had they been given the chance to comment they would have expressed their displeasure that they weren’t included in the relief program. Because the two cases dealt with the same program and the same same initiative out of the administration, the Supreme Court said we’ll take the two cases, and we’ll hear them together. And that’s what happened at the end of February,

    Alexander Morse  03:04

    Is hearing two separate cases on the same subject, something that the Supreme Court traditionally does?

    Brian Backstrom  03:09

    It’s not uncommon, but it’s not typically usual. They’ll bundle some when it makes sense. And I think in this case, it really did make sense because people were looking for sort of a broad brush decision. Can the administration do this program? And do people have standing to challenge it?

    Alexander Morse  03:28

    So the Supreme Court heard more than three hours of testimony of challenges against the student debt relief plan, what were the main issues and the big takeaways of those oral arguments?

    Brian Backstrom  03:40

    That’s right, the Supreme Court gave two hours, more than two hours of discussion time to the case brought by the states. And then more than an hour of discussion time brought by the Texas plaintiffs in both cases involve two main points. The first was, do the plaintiffs have standing to sue? That means are they actually injured parties that are aggrieved by the Biden administration’s actions in proposing this initiative? And that’s a subject of discussion to see whether the next step can be decided, which is whether the program as proposed is legal. Does the Biden administration have the authority to issue the program, or does it need congressional approval? And is the program as proposed legally structured? Those are the two basic issues that are being decided by the Supreme Court. And those are the two issues that were argued before the Supreme Court at the end of February. The Biden administration says it certainly has the authority to propose this plan under a 2003 law called the HEROES Act, which was done in response to the attacks on September 11 to provide relief to soldiers fighting wars over in Afghanistan. The HEROES Act specifically gave the Secretary of Education, the authority to waive or modify provisions of the student loan program. Biden administration says this is more than enough authority to go ahead and propose this debt cancellation program. They also say it’s the logical ending to nearly three years of granting a pause to student loan borrowers in their repayment requirements. When they turn off of that pause and rent start requiring repayments again, the Biden administration said relief is needed to keep people from going into default. In the state’s case, opponents to the program said, Congress definitely needs to act on this. It’s a new program being proposed and the Biden administration doesn’t have unilateral authority to go forward with it. And they didn’t get that approval, so they feel it’s illegal.

    Alexander Morse  05:53

    Right. And then there was that case from Texas, the two individuals who opposed the student debt relief plan, because the plan was never open to public comment.

    Brian Backstrom  06:02

    That’s right. They basically said we were shut out of the program. And we would have liked to express our displeasure. And I think that really comes down to if the Biden administration has the authority under that 2003 HEROES Act. They don’t need to go to public comment period. And so it’s a decision for the court to make on whether, in fact, the program was legal under the HEROES Act. If so there is no need for public comment.

    Alexander Morse  06:30

    When I had heard that this was one of the cases that the Supreme Court was going to hear, I found that to be a little surprising. But Brian, as are education policy expert here, I was wondering if any other lines of questioning or issues with standing surprised you.

    Brian Backstrom  06:44

    There were a couple of things that came up that I suppose we could have foreseen. They weren’t particularly unusual, but they took up a lot of the court’s time. I think the first one was that there was a lot of discussion on what they call the major questions doctrine. And that was basically the justices saying that this is a massive program, almost a half a trillion dollars in benefits being handed out. And even according to the Biden administration’s own figures, it’s going to affect something like 43 million borrowers, 95% of all student loan borrowers will be affected by this program. And the justices were concerned about that size of the program. They’re saying this is a new program. And you as the administration don’t have the authority, it’s a major question that needs congressional input. And so there was a lot of back and forth about that. The Biden Administration’s position was basically, under the HEROES Act, we have the ability to waive or modify provisions of the loan program. So that’s what we did here. We changed it from a loan program requiring repayment to a benefits program. The justices were pretty clear and pretty strong in their pushback on that saying, that doesn’t sound like a modification. To me, it sounds like the creation of a new program. And time and time again, they cited the the massive projected cost of the program and its breadth. And so I think that we get a early peek at how they might decide on whether, indeed, this was a waiver or a modification of a program or the creation of a new program that required congressional input. There was also some questions, primarily from Chief Justice Roberts, on whether this was a fair program. We didn’t see a lot about the fairness of this initiative, either in his proposal or in previous discussions about the proposal, or what the court might ask. So that was a little surprising to hear some conversation back and forth about fairness. There is the issue of what if somebody who received a Pell Grant while they were in college now earns twice as much or three times as much as somebody, a student loan borrower who didn’t get the Pell Grant? How is that fair for the person who’s making so much more now getting twice as much debt relief as somebody who isn’t? That was an interesting question. Chief Justice Roberts also said, what if somebody couldn’t afford to go to college and so took out a private loan to start up a lawn care business? Where is their relief? I think the administration’s attorney did a pretty good job coming back and saying, Look, because we have converted this into a benefits program, different people in different situations, get different levels of benefits all the time. And that’s just what’s happening here. That seemed to be a fairly sound rebuttal to the justices position, but we’ll see how whether the fairness issue comes up when they start writing their decisions.

    Alexander Morse  09:47

    Were there any other interesting points that were made during the day?

    Brian Backstrom  09:50

    I think the last maybe surprising thing, but maybe not, was that there was just a lot of discussion on the issue of standing? I think that’s probably the most contentious point. The state’s case was interesting because the justices were saying, why didn’t the loan servicer that was based in Missouri, come and sue rather than the states on it on the loan servicers behalf? It was interesting to because that position got a lot of pushback from Justice Amy Coney Barrett, who was viewed as one of the conservatives. And I wouldn’t be surprised if she was one of the justices that decided the states don’t have standing to sue here. And that’s the first point to be decided, do the litigants have the proper standing to sue? Once that’s decided, then they can go on to the substance of the case of whether this program is legal or not.

    Alexander Morse  10:49

    All right, Brian, it sounds like you were going into prediction mode. There were some of the justices may fall. I’m going to ask you to expand on that a little. How do you see decisions on these cases shaking out?

    Brian Backstrom  11:02

    I’m not a legal scholar. But it looks to me like the administration did not have the sufficient authority to make this massive change in student loan program. I think that the justices, if they get to that point, will rule that way. I wouldn’t be surprised to see it in the predicted six to three conservative versus liberal split. But I also wouldn’t be surprised if a liberal jurist or two came over to that side. From how I read the briefs and what I heard in the arguments, it seems like the administration doesn’t really have the authority to unilaterally do what it’s proposing. And the Congress has already acted in some regards on student loan debt relief, denying an earlier proposal for $10,000 and relief. So I think that we see this tension between executive authority and congressional authority and the separation of powers that was designed for programs such as these and I think we’ll end up with that type of a decision if we make it there. And I think that’s the big question is, will we make it there? It all hinges on whether the court decides that these two cases had proper standing to sue? If I had to guess, I would say that it probably is going to come down to a five, four split decision that indeed, there was proper standing by the states to sue, I don’t know about the Texas case, I’m not willing to make a bet on that one. But I do think that they will decide that the state’s had enough standing to move this case forward. And that will mean that they will then proceed to discussion and decision about the legality. And I think the program will fall on that basis.

    Alexander Morse  12:54

    What’s the timeline for a decision? When do we expect to learn more about the fate of this program?

    Brian Backstrom  12:59

    Predictions are for a late June decision, but really, the Supreme Court has within its authority to decide this anytime they could decide next week and release their decision. But most people, most court observers are saying let’s expect to late June decision. And that sort of matches with what the Biden administration did in terms of offering one final pause on student loan repayment requirements. They said, You don’t have to repay your student loan until June 30 or 60 days after the legal issues are decided whichever comes first. So I think that’s what we’re looking at really is a late June decision seems to be the one most likely.

    Alexander Morse  13:40

    Is there anything else student loan borrowers should know as they are anxiously awaiting the Supreme Court’s decision?

    Brian Backstrom  13:49

    I think the thing that’s going to be most important for student loan borrowers to understand is that yes, repayments are going to restart. And so if they haven’t been squirreling away money, their monthly allocation to make repayments, it is going to happen. The original timeline that the Biden administration proposed was for January, and then when the lawsuits came up to the Supreme Court level and froze the program in place, they pushed it back for another six months. But it has all the indications that this will be the final pause. And so student loan borrowers should probably start preparing to start up their repayments again.

    Alexander Morse  14:27

    So that’s sound advice for about 45 million student debt borrowers. To wrap up here, Brian, let’s talk about next steps. Where can the administration go forward?

    Brian Backstrom  14:36

    The administration can package this entire proposal as a law for Congress to consider. And I think that’s a risky move. If the Supreme Court says no, you can’t go forward with this, it’s pretty clear that Congress would probably say no as well, but that’s an option. They can also say we have authority under the Higher Education Act. To do this and try again, again, another risky move because the Supreme Court has ruled. So I think it looks pretty good that student debt relief will not be an issue. We’ll have to see Congress can always take it up and make it one of their proposals and clearly that will get support from the Biden administration. But one of the important things I think that we can take away from all of this is the Secretary of Education Miguel Cardona said that the administration will continue to and I quote, here “hold colleges accountable for runaway costs and unaffordable debt.” And they will also continue to propose streamlining of current student loan repayment programs to make it easier for student borrowers to make their repayments. I think all of these things really are the key to this entire debate is let’s make it easier and more affordable for more kids to go to college in the future.

    Alexander Morse  15:58

    Right, address the problem at its source.

    Brian Backstrom  16:00


    Alexander Morse  16:02

    Well, Brian, thank you for joining us today to take us through the challenges facing President Biden student debt relief plan and what arguments were presented to the Supreme Court. I’m sure we’ll have you back on soon to provide any updates as decisions are made. Thanks.

    Brian Backstrom  16:17

    Again, thanks very much for having me on.

    Alexander Morse  16:26

    Thanks again to Brian Backstrom, director of education policy studies at the Rockefeller Institute of Government for sharing insights on the current state of the student debt relief plan Speight as it awaits a decision from the United States Supreme Court. Brian wrote a recent piece for the Institute titled, “SCOTUS to Decide: Is the Biden Administration’s Student Loan Debt Cancellation Program Legal?” that does a deeper dive into the lawsuits, the arguments behind them and how the Supreme Court’s decision can affect many millions of student loan borrowers. You can learn more by checking it out on our website at Rockinst.org, that’s R-o-c-k-i-n-s-t.o-r-g. If you liked this episode, please rate subscribe and share that will help others find the podcast and help us deliver the latest in public policy research. All of our episodes are available for free wherever you stream your podcast. Transcripts and related research are available on our website. Special thanks to Rockefeller Institute staff Joel Tirado, Heather Trela, and Laura Schultz for their contributions to this episode. Thanks for listening. I’m Alex Morse. Until next time. Policy Outsider is presented by the Rockefeller Institute of Government, the public policy research arm of the State University of New York. The Institute conducts cutting edge nonpartisan public policy research and analysis to inform lasting solutions to the challenges facing New York state and the nation. Learn more at Rock institute.org or by following at Rockefeller inst. That’s Rockefeller i n s t on social media. Have a question comment or idea? Email us at [email protected]

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