Term Talk (2022-2023): Biden v. Nebraska

foreign [Music] hello and welcome to term talk I'm Jim chance senior judicial education attorney in the judicial and legal education division of the Federal Judicial Center in each of our 8 to 12 minute episodes we discuss what lower courts need to know about the terms most impactful Supreme Court decisions joining me today are our longtime collaborators Laurie Levinson professor of law and the David W Burcham chair and ethical advocacy at Loyola Law School and Evan Lee professor emeritus at University of California law San Francisco thank you both for joining us today we're talking about one of the big opinions defining the breadth and limits of executive power in relation to Congressional law making so Biden versus Nebraska was a case brought by several States including Missouri challenging student loan practices seeking to provide further relief to borrowers impacted by the covid pandemic under the heroes Act of 2001. Biden versus Nebraska Evan in early 2020 the prior Administration citing the ongoing pandemic began providing student loan borrowers with relief from payments under the heroes Act this case involves the new administration's attempt to continue and expand that relief but the court says it went too far can you get us started on why this opinion is important uh well it obviously sends the administration back to square one on loan forgiveness but from a jurisprudential standpoint it's important because it signals just how difficult it's going to be going forward for Congress to make very large delegations of policy making authority to the executive branch and I think it also gives us a glimpse regarding how the court is going to deal with issues of standing and who can challenge you know programs like this but um let's start with the facts and the uh and the issues that are involved here um the Baseline statute here is the Higher Education Act of 1965 it promoted higher education by setting the terms of student loans and making it easier to borrow and also relevant here it authorized the Secretary of Education to cancel or reduce uh loan indebtedness under particular circumstances the uh second statute that's involved here is the so-called Heroes act the higher education relief opportunities for students Act of 2001 as amended by um the heroes Act of 2003 so originally it was a response to 911 and it granted the Secretary of Education the authority to waive or modify um loan indebtedness based on a national emergency and then in 2003 um Congress added or any War so now post 2003 it's National Emergency or any War now as you said um in March 2020 the Trump Administration uh and then Secretary of Education Betsy DeVos used the heroes act to Halt loan repayment requirements and um it waived she waived any accruing interest on those loans and then after the changeover in administrations um the Biden Administration continued and greatly expanded the relief by canceling or reducing loan obligations of borrowers who met certain income thresholds and then um a week later the Biden Administration declared the pandemic to be over which is a fact that was definitely not lost on the majority in this case so the threshold legal issue here is did the state of Missouri have standing to sue on behalf of its Loan Servicing agency and then on the merits the issues are did this loan program loan forgiveness program exceed the statutory authorization and in answering that question does the major questions Doctrine apply the major questions Doctrine will come back to perhaps in another episode okay there's a lot to unpack here Lori can you walk us through what the standing issue was as we know standing has three requirements first there has to be concrete and legally cognizable injury in fact second the injury has to be fairly traceable to the challenge conduct and third injury needs to be likely to be addressed by the requested release so Mohela it was said will suffer actual loss of administrative fees 44 million dollars and that they receive now for managing the canceled debt and that's clearly a protected interest and it's traceable to debt forgiveness policy and it's addressable by the court but is Mohela an instrumentality of the state and that's where they differ the majority says it is that it is a stay-created public corporation to participate in student loan markets that Missouri has considerable supervisory power over in the control of Mohela that in fact the state constitution recognizes higher education as a public function but the damage to mojilla's ability to perform these function arms Missouri as a whole that mojila answers to the state and they're both Mohela and Missouri have standing to Sue and frankly that Missouri could sue even if Mohela didn't want to now that's where the majority came out but according to the dissent which was Justice's cake and Sotomayor and Jackson Mohela is actually a legally and financially independent Corporation with a separate legal personality it has rights and obligations that are distinct from the state that its assets are not the state's assets that the state could not use these fees to pay its debts That mohile Couldn't sued but it chose not to in fact it wasn't really cooperating the state had to request documents from it so the laws creating Mohela purposely set it apart from the state itself there and therefore there should not be standing Evan what were the merits arguments here the court concluded that the sheer expansiveness of this program greatly exceeded anything that the secretary had ever done before under those statutes and that it exceeded what Congress would have wanted uh first looking to history um the court found that prior forgiveness actions by the Secretary of Education were discrete and limited they were very situational they were particularized to the unique situation of the borrowers involved but with this expanded forgiveness program all that matters is how much borrowers owe compared to how much they're capable of paying and in other respects it's across the board second the court looked at the statutory text uh modify or wave looking at the dictionary definition of modify moderate or minor changes and the court says here there's a connotation to the word modify that a connotation of increment or limitation that is missing here and the court cracks that and I quote the secretary's plan has modified the relevant Provisions only in the same sense that the French Revolution modified the status of the French nobility end quote and that's a Scalia quote by the way turning to the word wave the court says the word waiver the concept of waiver doesn't Encompass adding new Provisions uh and here the court says the administration hasn't just modified or waived it's effectively Rewritten the statute and third applying the major questions Doctrine when claiming very broad policy making Authority uh granted by a statute the agency has to point to quote clear Congressional authorization unquote Laurie Justice Kagan wrote a dissent in this case joined by justices Sotomayor and Jackson tell us what that said well as we know that the descents are both standing and the power of the executive very differently from the majority the majority had written that quote given how incredibly sweeping the scope of the program there's good reason to hesitate before concluding that Congress meant to Grant such Authority there is good reason to think that Congress would have saved such sweeping changes for itself and therefore that this administrative action that had as the court put a staggering economic and political significance went beyond what should have been allowed that it was the executive who was improperly using its power over the legislature now that's where the majority came out but the dissent said no no no it is the court that is seizing the power of the legislature especially by finding standing where none that existed and that what the legislature via the statute was clearly empowered to do is what the Secretary of education did that there's immense power but there are triggering conditions and that this issue of the major questions Doctrine came out of full block well for both of you Evan let's go to you what what are the takeaways from this case well regarding the major questions Doctrine and maybe we can get into this in a separate program later but just briefly if you read West Virginia versus EPA and then National Federation of Independent businesses versus OSHA and then this case all in succession it's hard to escape the sense that the major questions Doctrine is a super strong clear statement requirement that will end up invalidating most or all sweeping delegations of policy making authority to the executive branch and as the majority sees it that's Justified and necessary to protect kind of freestanding background principles such as federalism separation of powers and democracy itself Lori well you know basically it's interesting because the majority in The Descent support their opposite conclusions using the same rationale I mean Congress uh another branch of government should decide whether such a sweeping debt cancellation program should go into effect but the difference is is the majority thinks that it's the executive branch that has wrongly seized that decision for itself where the dissent is saying no no no the Supreme Court has wrongly seized that decision for itself and then when you get to the major question Doctrine as Evan was discussing we have an interesting concurrence by Justice Barrett she really tries to put some limiting construction on that Doctrine she says it's not a clear statement or rule maybe not a rule at all that in fact it might just be a guideline for using common sense and interpreting statutes and she says the application in this case helps but not necessary and she strongly suggests that she would not have joined in the majority's decision if the invocation the major question Doctrine was truly a clear form statement of the rule because she has questions about the constitutionality of such a Doctrine I want to also add if I can gym one last quick note which is some might be asking well what happens now with loan forgiveness has the administration found a workaround or this decision from what we know there are efforts that will help with the student loan forgiveness before this case there was actually a programming place that would have relieved debt for about 800 000 borrowers who had been paying for 20 to 25 years but there have been mistakes in the administration of the program the administration now wants mixtape sure those mistakes are cleared up and that those people are able to get the loan forgiveness that they were entitled to before this case they're also plans to create something called the save s-a-b-e plan that will keep payments low based upon a borrower's income or family income so those are two possible workarounds in reaction to this case all right thank you both for joining us today we look forward to working with you again on other episodes of term talk thanks again [Music] thank you [Music]

Channel: United States Courts

Views: 848

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Id: mnp3x4oZDJ4

Length: 15min 3sec (903 seconds)

Published: Thu Sep 14 2023