Biden loan forgiveness plan opportunities

Experts who predicted the Supreme Court justices would rule against President Joe Biden’s student loan forgiveness plan changed their minds after arguments. Those experts praised Attorney General Elizabeth Prelogar, who represented the Biden administration in the case.

US Attorney General Elizabeth Prelogar

Artist: Bill Hennessey

The government’s top attorney on the Supreme Court may have saved President Joe Biden’s $400 billion student loan forgiveness plan from what experts say is almost certain defeat.

Experts praised Attorney General Elizabeth Prelogar, the attorney who represented the Biden administration before the nine judges on Tuesday.

“The Biden administration now appears to be more likely to win cases than not,” said higher education expert Mark Kantrowitz.

“Their preparation, attitude and strength were impressive,” said Kantrowitz.

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In contrast, the plaintiffs’ attorneys who opposed the program were less than stellar, Kantrowitz said. “It was like the difference between a star quarterback and two Tiddlywinks players,” he joked.

Steven Schwinn, a law professor at the University of Chicago, Illinois, agreed, “Prelogar knocked it out of the park.”

“I think she could have influenced or even changed the thinking of two judges, maybe more,” he added.

On Wednesday, Jed Shugerman, Professor of Law at Fordham, tweeted that he remained “impressed by the brilliant performance of SG Elizabeth Prelogar.”

“Perhaps she snatched victory from the jaws of defeat,” Shugerman wrote.

The nine judges reviewed two legal challenges to President Biden’s plan to forgive up to $20,000 in student debt for borrowers. Six GOP-run states (Arkansas, Iowa, Kansas, Missouri, Nebraska and South Carolina) had filed one of the lawsuits, and the other was supported by the Job Creators Network Foundation, a conservative advocacy group.

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Focusing on how the President acted in accordance with the law to avoid borrower distress during national emergencies, Prelogar refuted that the plaintiffs had shown in any way that they would be harmed by the policy, which is usually a requirement of the justification a so-called legal standing.

When the Biden administration rolled out its student loan forgiveness plan in August, it cited the Heroes Act of 2003 as its legal justification.

The Biden administration now seems more likely to win cases than not.

Markus Kantrowitz

university expert

This law, a result of the September 11 terrorist attacks, allows the US Secretary of Education to “waive or modify” student loan programs to ensure borrowers are not made worse off because of a national emergency. Opponents of the president’s plan say canceling hundreds of billions of dollars in student debt for tens of millions of Americans goes well beyond the scope of the Heroes Act.

Judge Clarence Thomas, who declined to allow the judges to question the Biden administration, seemed to echo that view.

“We’re talking half a trillion dollars and 43 million Americans,” Thomas said. “How does that fit under the normal understanding of ‘modify’?”

Prelogar countered that the core of the provision’s purpose is to allow the Secretary to ensure that borrowers do not suffer financially with their loans during a crisis, and that is exactly what the Biden administration’s policy is doing.

Supreme Court justices listen to arguments.

Artist: Bill Hennessey

A senior US Department of Education official recently warned that the public health crisis has done significant financial damage to student loan borrowers and that his debt relief plan is necessary to stave off an historic spike in arrears and defaults.

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“It should not have surprised Congress in the least that, in response to the hardships caused by a national emergency, the Secretary could consider similar relief when needed to ensure borrowers do not default,” Prelogar said

Judge Elena Kagan agreed.

“This is an emergency supply,” Kagan once said, hypothesizing that the crisis was more of an earthquake than a pandemic.

“You don’t think Congress … wanted to give the Secretary the power to say, ‘Oh my God, people’s homes have been wiped out, we’re going to pay off their student loans?