A Trump-appointed justice on the U.S. Supreme Court was unexpectedly critical in questioning in a case seeking to overturn President Joe Biden’s efforts to cancel student loan debt, legal observers said Tuesday.
On Tuesday, the court took up two cases—Biden v. Nebraska and Department of Education v. Brown—led by six Republican-led states seeking to block the Biden administration’s plans to cancel up to $20,000 in student debt for federal borrowers, arguing that the plan would have an adverse effect on their tax revenues and, in some cases, state-run student lending agencies like the Missouri Higher Education Loan Authority (MOHELA).
However, one key member of the court’s conservative majority many believed to be sympathetic to the plaintiffs’ arguments during Tuesday’s initial hearing seemed somewhat critical of the agency’s standing in the case.
While some seemed supportive of the plaintiff’s case in their lines of questioning, conservative Justice Amy Coney Barrett on Tuesday seemed to focus more on her liberal colleagues’ lines of questioning around the federal government’s arguments that agencies like MOHELA was a separate entity from the state and therefore stood more at risk of losing revenue than the state.
Such an argument, if successful, would present a significant blow to the state’s efforts to overturn the program. Throughout the case, MOHELA has tried to separate itself from the case, while government attorneys pushing the case have insisted MOHELA’s problems are, in essence, Missouri’s problem. Without the ability to prove that, the case could be thrown out on standing.
“If MOHELA is an arm of the state, why didn’t you just strong-arm MOHELA?” Barrett asked the state’s attorneys during Tuesday’s arguments.
Newsweek reached out to MOHELA for comment.
While a question of standing, even the question was a surprising rebuke of the policies of the Trump administration which, prior to Biden’s inauguration, issued a memo concluding that the Department of Education lacked authority to cancel student loan debt. While that never happened—Biden used executive authority to approve the plan—the memo sought to throw a bureaucratic road block in Biden’s way and established a Republican position of opposition ahead of the Biden presidency.
There have been other surprises in the case. Some observers noted that conservative Justice Clarence Thomas once mused about the “crushing” weight of his student debt in his 2007 memoir, saying that a fellow student recommended he declare bankruptcy.
However, others appeared to keep focus on the body of the case: whether Biden was legally permitted to unilaterally cancel student debt without an act of Congress.
In their lawsuit, the states argued that Biden violated federal law when he used his executive power to skirt Congress’ authority to implement the policy by using an obscure 2003 law called the Higher Education Relief Opportunities for Students Act, which was originally intended to relieve financial burdens on U.S. veterans amid the war in Iraq.
The administration’s justification, the plaintiffs argued, disregards the act’s original objectives to implement major policy decisions that they say should legally be in the hands of Congress.
At least one justice on the court seemed to agree.
“In the wake of Congress not authorizing the action, the executive nonetheless doing a massive new program seems problematic,” Justice Brett Kavanaugh—like Barrett and Neil Gorsuch a conservative Trump appointee—said during Tuesday’s arguments.
Whether Barrett’s defection—should it hold—is enough to overrule the votes of the rest of the six-member conservative majority on the court is, however, another question, some mused on Twitter on Tuesday.
“It seems like Justice Barrett may well be a *fourth* vote to hold that neither the six red states nor the two private plaintiffs have standing to challenge the Biden student loan debt relief program,” Steve Vladeck, a University of Texas law professor specializing in the federal courts, wrote on Twitter. “The multi-billion dollar question is whether there’s a fifth. I’m skeptical.”