Forgiveness and Permission
Illustration by Bruce Petrie
You’ve heard that sometimes it’s easier to ask for forgiveness than permission. This month the Biden Administration will be asking Scotus for both, to forgive $400 billion in student loan debt, with stakeholders including not only students and families, but also state and federal governments and taxpayers.
If we put on our Constitution rather than politics glasses we see that, for Scotus, it’s not about whether it’s good public policy to forgive school loans. Forgive my prediction but a majority will likely frame this as a separation of powers question. Does the executive branch, the president plus the Department of Education, have the constitutional power to forgive debt of this size? Does an act of Congress (called the HEROES act) enable the executive branch to do so? Scotus has the separate judicial power not to make policy but to say forgiveness does or doesn’t violate separation of powers.
My students yesterday certainly had lots of good reasons to argue for loan forgiveness. I asked them which reasons are policy preferences and which are constitutional. Public opinion we know is often political, driven by the so-called ox gore principle: i.e. whose ox is being gored if loans are forgiven.
A Scotus majority has signaled in prior cases its dislike for deferring to executive branch administrative agencies ‘legislating’; i.e. making law that only the legislative branch has the power to do. While the Administration says an act of Congress gives it permission, will Scotus say the HEROES act extends to total forgiveness of student loans? And even if it does, what about the claimed justification of an ‘emergency’ —i.e. the Covid pandemic—which is, according to the Administration, not an emergency now?
We’ll have to wait and see, but we suspect $400 billion in loan forgiveness and permission may not be forthcoming from a majority of Justices without a more definitive act of Congress to forgive student loan debt.
From a public policy viewpoint, American history shows that generous, inclusive investments in higher education opportunity pay off, with a ripple effect across generations.
For Scotus this term, educational opportunity is also at issue in its case about affirmative action in higher education. Many Scotus watchers foresee a Court majority poised to overturn the landmark 1978 Baake case holding that it’s not okay to use racial quotas in the college admissions process but is okay to consider race as one among a variety of other factors like test scores, grades, essays, socio-economics etc. The Baake case was based on the premise that student body diversity improves education for all. Some of today’s Justices, such as Justice Thomas, are skeptical of that premise.
Again we’ll have to wait and see. But if Scotus overturns student loan forgiveness in one case and higher ed affirmative action in another, we’re reminded once again of how powerful the 21st century American Supreme Court has become.