President Joe Biden is trying to give the millions of Americans saddled with student loan debt some relief. Republicans, and the Supreme Court, may not let him.

After Biden took office last year, his administration announced a plan to discharge hundreds of millions of dollars in student loans in a program that would forgive as much as $20,000 per borrower. Biden did this thanks to the Higher Education Relief Opportunities for Students Act of 2003, or the HEROES Act, which allows the secretary of education to change or get rid of student debt in the context of “a war or other military operation or national emergency.”

Jill Filipovic - Courtesy of Jill Filipovic

A pandemic is clearly a national emergency, a position former President Donald Trump also took when he paused student debt payments in 2020. Biden expanded upon that, putting loans back into repayment starting in July, but also putting forward a plan to forgive rather than just pause at least some debt.

Many of the more than 43 million Americans saddled with some $1.75 trillion dollars in student debt were thrilled. Many Republicans cried foul.

Six Republican governors and two debt holders filed lawsuits challenging the policy. Their argument is essentially that this program is beyond the scope of Biden’s power; he’s using Covid as a pretext, they say, for a law that should be approved by Congress. On this point – and in much of the case – the Court’s conservative justices seemed sympathetic during Tuesday’s oral arguments in the two challenges to Biden’s plan. The case “presents extraordinarily serious important issues about the role of Congress,” Chief Justice John Roberts said, adding, “We take very seriously the idea of separation of powers and that power should be divided to prevent its abuse.”

He has a point: The US government was indeed set up to separate and balance powers, and to avoid unilateral executive action – the Founders gave us a president, not a king.

But Congress also gave us the HEROES Act, which explicitly gives the president the authority to cancel student debt in the case of a national emergency. The pandemic was clearly a national emergency. There are often a lot of “really confusing” statutes that come before the Court, Justice Elena Kagan said, and “this is not one.” Clearly, Congress intended for the president to have the power to waive student debt in a national emergency; can it really be the case that the president was given that power, but he’s not permitted to use it without Congress weighing in?

The conservative judges seem to say yes.

This is a case that may fall apart before the judges even get to the real meat of it, thanks to standing issues with the plaintiffs. In order for a court to hear a case like this one, the individuals or entities suing have to have suffered some actual harm – they can’t just dislike a law or policy, they have to be negatively affected by it. The Court will first have to consider if the Republican governors who are suing have met the threshold to sue in the first place.

Whatever the outcome, this case will be a political win for the Biden administration. The optics are clear: Democrats want to forgive your student loans; Republicans are willing to go all the way to the Supreme Court to stop them.

If the Republican governors win, though, and the student loan forgiveness program is scrapped, the real losers will be indebted former students, not the GOP.

Student loan debt is crushing, and it has exploded in the last few decades. According to the Education Data Initiative, while the average borrower takes out $30,000 in loans to pay for a bachelor’s degree, the average federal debt owed is more than $37,500, and the average private student loan debt is a whopping $54,921.

And all debt is not created equal. Students who take out loans to get, say, business degrees from top universities find themselves in a very different position from students who attend predatory for-profit institutions and wind up with degrees that aren’t worth all that much – if they end up with degrees at all. A great many students who take out student loans don’t graduate, leaving them in the worst of all positions: In debt, but with no degree to show for it.

These students – those who are indebted but don’t have a diploma – are typically vulnerable in many other ways. Borrowers who default on their loans are much more likely than students who graduate to be first-generation college students, to be Black or Hispanic, to have attended a for-profit school, and to have never completed their degree.

While Biden’s loan forgiveness plan would benefit many people with student loan debt – myself included – it’s the borrowers who never graduated or who went to predatory institutions that are currently being hurt the worst, and would see the greatest benefit by having a chunk of their debt knocked off.

Struggling with student debt – or worse, defaulting and seeing your entire financial life take a huge hit – is part of what keeps so many Americans living in a state of precarity. Millennials, the oldest of whom are now in our 40s, have been notoriously reluctant to have children, late to marry, and unable to save for homes. Student debt isn’t the only driver of these shifts – much of it is cultural as much as economic – but beginning your adult life owing tens or hundreds of thousands of dollars does not exactly create a stable foundation on which to build a life.

To add insult to injury, an 18-year-old who spent four years racking up credit card debt buying luxury cars, wearing designer clothes and going on exotic vacations can discharge that debt in bankruptcy. An 18-year-old who signed a $100,000 loan agreement at 7.5% interest because it was their only way to pay for school cannot.

The Biden student loan forgiveness program is far from perfect. It doesn’t do nearly enough to ensure that we aren’t going to be right back here a few years down the road. It is arguably not generous enough to the most in need and too generous to the white-collar professionals who can afford to pay off their loans. And liberals should have real concerns about executive overreach.

But we should be concerned about overreach from a conservative Supreme Court, too, as well as a student loan system that places heavy financial burdens on young people as soon as they embark on their adult lives.

The Republican talking point on this case is that Biden’s plan is a massive taxpayer giveaway, and that he cunningly used Covid as an excuse to push through a policy Congress would have never approved. So it’s worth asking Republican politicians: Why won’t Congress act to relieve student loan debt — even if it means making the uber-wealthy and large corporations pay more in taxes — and improve the economic and personal futures of so many young people?

The GOP opposes Biden’s student debt relief plan, and members of the party are so against it that they’re willing to take it all the way to the Supreme Court. Voters like me, who still carry significant student debt that has very much impacted my financial wellbeing and curtailed my ability to save for little things like ever being able to retire, want answers from the GOP: If you’re willing to fight student loan forgiveness in front of the Supreme Court, why aren’t you willing to fight for the millions of Americans who are being crushed by the debt we needed to take on to get our degrees?

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