Dear Commons Community,

The US Supreme Court’s conservatives signaled  reservations yesterday about President Joe Biden’s plan to erase $400 billion in student loan debt, an outcome with sweeping implications for the White House and 40 million borrowers.

For more than three hours, the justices questioned the lawyer representing the Biden administration with concerns about how the administration crafted its plan, whether it was fair to Americans who repaid their loans and why Congress didn’t get a say.

Not only will the decision have enormous consequences for tens of millions of Americans who had sought to benefit from the program, it may reshuffle the balance of power among the president, Congress and the federal courts – hamstringing future administrations from embracing major national policies unilaterally. A decision is expected in June.

Here are four takeaways from the Supreme Court’s arguments over the plan courtesy of USA Today.

1. Biden appears likely to lose student loan forgiveness cases

Biden’s plan was expected to be on the ropes and there was little during the course of the arguments to give the White House hope those predictions were wrong. Chief Justice John Roberts and Associate Justice Brett Kavanaugh, both of whom sit at the ideological center of the conservative court, underscored skepticism early and often.

Roberts called attention to the 2003 law the administration relied on to create the program, the HEROES Act. That law allows the Department of Education to “waive or modify” loan provisions. It doesn’t specifically say “cancel or forgive.”

“We’re talking about half a trillion dollars and 43 million Americans,” Roberts said during the first few minutes of the arguments. “How does that fit under the normal understanding of ‘modifying’?”

Solicitor General Elizabeth Prelogar, representing the administration, focused on the part of the law that authorizes “waiving” loans.

Kavanaugh asked difficult questions of both sides but asserted that “some of the finest moments in the court’s history were pushing back against presidential assertions of emergency power.” Some of its “biggest mistakes,” he said, were when it didn’t.

On the other hand, Kavanaugh pressed the attorney representing the states for why “waive” couldn’t authorize Biden’s plan.

“Congress was very aware of potential emergency actions,” he said, noting that the law was passed in the wake of the Sept. 11 attacks. “Why not just read that as written?”

Biden’s supporters had hoped the administration might eke out a procedural win on the question of whether the parties who sued – six conservative states and two individual borrowers – were harmed enough by the plan to bring their case to court. While that debate came up, it received far less attention than questions about presidential power.

2. Fairness looms large for conservative justices scrutinizing loan forgiveness

Conservative justices, including Roberts, raised what they called “the fairness argument,” echoing a common criticism from Biden’s opponents that forgiving debt punishes, in some sense, Americans who didn’t attend college or worked hard to pay off their loans.

That line of questioning was a troubling sign for Biden.

Roberts, whose support is crucial for Biden to garner the five votes needed for a majority, introduced a hypothetical situation of two high school graduates, neither of whom could afford higher education. One took out a loan to attend college. The other, instead, started a lawn care business with help from a private bank loan.

“At the end of four years, we know statistically, that the person with the college degree is going to do significantly financially better over the course of life than the person without,” Roberts said. “And then along comes the government and tells that person, you don’t have to pay your loan.”

In response, Prelogar argued that it was Congress, by enacting the HEROES Act, that decided the education secretary could provide student loan forgiveness tied to emergencies like the COVID-19 pandemic. Two associate justices in the court’s liberal wing, Elena Kagan and Ketanji Brown Jackson, signaled support for Biden on the point.

“Congress passed a statute that dealt with loan repayment for colleges, and it didn’t pass a statute that dealt with loan repayment for lawn businesses,” Kagan said.

3. Biden’s Plan B on student loans? Very uncertain

If Biden loses, it’s likely to put enormous pressure on the administration from the left to come up with another plan. The mass of protesters outside the court – and posting on social media – suggests student loan borrowers will be irate if the plan is torpedoed.

So far, the White House hasn’t wanted to discuss that.

“The bottom line is we’re confident in our legal authority, which is why we’ve taken the case all the way to the Supreme Court,” said White House spokeswoman Olivia Dalton.

And it’s not clear what other avenue the administration could turn down to offer nationwide debt forgiveness. Biden could try Congress, but a compromise between the Republican-held House and Democrat-controlled Senate is highly unlikely.

Instead, the administration may be forced to focus on smaller steps within its control.

Alongside the debt forgiveness plan, for example, Biden introduced a new program meant to tie borrowers’ monthly loan payments to how much they earn. The government already has several such plans in place, but the newest would be the most generous. It would reduce some borrowers’ payments to 5% of their discretionary income. That plan isn’t available yet, but is currently going through the Department of Education’s regulatory process.

4. Biden’s lawyer closes with an emotional appeal on loan forgiveness

After three and a half hours of complicated arguments about standing to sue, separation of powers and court precedent, Biden’s lawyer closed her remarks with an emotional appeal about the millions of Americans who have been dealing with student loan debt.

“I know that we have had hours today on the legal issues in this case, but I do want to step back for a moment and focus on the stakes of this case,” Prelogar said.

It was a classic Prelogar move: The solicitor general can go toe-to-toe in the weeds of the law with the best Supreme Court advocates in the nation. But she also has a knack for calling attention to the bigger picture.

Prelogar talked about the millions of student loan borrowers who have had “devastating financial impacts based on this unprecedented pandemic” and will be hurt even more when Biden’s moratorium on repaying student loan debt ends.

Ninety percent of the borrowers covered by Biden’s plan make $75,000 or less, she said. Twenty-six million Americans have applied for debt forgiveness and 16 million have been approved.

“For those Americans, this is a critical lifeline to ensure that they are not subject to the severe negative consequences of delinquency and default on student loan debt,” Prelogar said. “And the relief for these Americans has been held up by two student loan borrowers who don’t even have standing and whose claims fail on the merits.”

Some borrowers told USA TODAY the pause on loan repayments during the pandemic allowed them to pay down credit card bills, build a house, buy a new car, or just keep food on the table.

Prelogar seemed to be reminding the court of a reality: Student loan borrowers who cheered Biden’s long-awaited program in August are going to be let down if the court blocks it.

It doesn’t look good for student loan forgiveness!

Tony