The future is looking grim for President Joe Biden’s signature $400 billion student debt forgiveness plan. It seems almost certain that the Supreme Court’s conservative justices will accept the state plaintiffs’ argument that they have standing to challenge the program even though it’s far from obvious how it affects them. On the merits, the justices showed interest in two alternative legal theories of why the debt forgiveness is beyond the president’s power to do without Congress. Regardless of which one the court adopts, the program seems very likely be struck down by a 6-3 vote.
That sounds bad for liberals. But on closer examination, the legal result may not be such a disaster for liberal principles of legal interpretation. Leave aside whether you think that the loan forgiveness is good public policy, a question on which there is room for disagreement, even among progressives. What’s troubling the conservative justices, legally speaking, is the scope of executive power implicated by the president’s unilateral decision to invoke his emergency pandemic powers to spend nearly half a trillion dollars without the approval of Congress.
And liberals should care about this sort of unchecked executive power as much as conservatives do. The president, after all, is not always a Democrat. When President Donald Trump wanted to spend federal dollars on building a border wall with Mexico without congressional approval, liberals, myself included, rightly objected. We do in fact need some clarification from the Supreme Court on the question of unilateral presidential expenditure. And in the student loan case, we might just conceivably get it.
