Biden v. Nebraska, which struck down the President Biden’s attempt to cancel student loan under the HEROES act, reflects the long-standing tendencies in Chief Justice Roberts jurisprudence, as well as the developments that have occurred since Justices Gorsuch Kavanaugh and Barrett joined. In line with these approaches the majority of the court drew an impermissible line between the permissible and the illegal modifications to student financial aid. Justice Barrett also defended common law judging in the disguise of textualism.
The HEROES Act allows the Secretary of Education “to waive or modify any statutory provision or regulation applicable to student financial assistance programs under title IV [of the Education Act] as deemed necessary by the Secretary in connection with a national emergency or war” (Roberts’ opinion, 13). The first time the statute was passed was in 2002 in response to the September 11th attacks on the World Trade Center.
Congress granted the Executive Branch significant powers in the context of the national emergency. This included not only the ability to forgive loans, but also the authority to conduct military operations abroad. The Authorization for Use of Military Force (AUMF), passed days after the September 11 th terrorist attacks, gave the President a wide range of powers to use military force against countries, organizations or individuals he deemed responsible for the terrorist attacks. The AUMF allowed executive action long after the immediate circumstances faded away. President Obama invoked the provision to support his decision in 2016 to launch a military attack against the Islamic State of Iraq & Syria (“ISIS”). The AUMF, when viewed in conjunction with the HEROES act and executive actions taken to implement the AUMF, argues for a wide reading of the Secretary’s power to “waive or modify” under the HEROES act.
In his majority opinion, Chief Justice Roberts rejected such an expansive reading. Instead, he displayed a formalism that is characteristic of many of his rulings. Roberts argued in Biden that the Secretary of Education’s cancellations of student loans were not modifications of a statute or regulation but “created an entirely new and novel loan forgiveness program”. He explained that “The Secretary’s plan has “modified” these provisions in the same way that the French Revolution “modified”, the status of French nobility–it has eliminated them and replaced them with a completely different regime” (14-15). Roberts also cited the absence of precedents for similar administrative actions under the HEROES act, stating that “The Secretary had never claimed powers of such magnitude under the HEROES law” (20). Roberts’ arguments are similar to those he made in previous cases, such as the 2012 case in which he cast the deciding vote for the constitutionality the Affordable Care Act individual mandate provision. In NFIB V. Sebelius Roberts stated that Medicaid expansion to include a larger group of low income individuals was a new program and not a modification of a previous one. Therefore, it could not be binding on the states. He also cited the absence of legislative precedents for something such as an individual mandate in order to declare it presumptively unconstitutional. In this respect, the decision of Biden V. Nebraska echoes aspects of Roberts Court jurisprudence that have been in place for many years.
Biden V. Nebraska drew on the newer members of the Courts in expanding the “major question doctrine,” which recently limited agencies’ ability to implement measures of economic and political importance without explicit congressional authorization. Justice Barrett wrote a long concurrence that elaborated on the textualist credentials major questions doctrine. She defended it against Justice Kagan, who claimed in her dissenting opinion that the doctrine was “a way for Congress to negate the broad delegations Congress approved” and “substitute[] themselves for Congress and Executive Branch”.
Barrett’s textualist defence of the major question doctrine is less similar to the textualist revival that was inspired by Justice Scalia. Scalia, in his essay “Common Law Courts in a Civil Law System,” criticized the common law education of law students. This included the attempt to educate them in dividing hypotheticals into lines and in separating cases. He argued that such ad hoc reasoning is misplaced in a legal system governed by a written Constitution.
Barrett, in her concurrence, defends the exact same type of judicial reasoning that Scalia criticized. Barrett writes, “the major question doctrine is a result of this.” . . Commonsense Principles of Communication” (8), and “[t]he doctrine is an interpretive tool that reflects ‘commonsense as to how Congress will likely delegate policy decisions of such economic and politic magnitude to an administrative authority” (5). Common law judges have traditionally relied on common sense, informed by precedents and what Sir Edward Coke, a 17 th century jurist called “artificial reasoning” and the accumulated wisdom from judges.
It is possible to criticize Barrett’s appeal for common sense in the same way that Scalia did when he criticized common law judging. Whose common sense really matters, and does it belong to the people or unelected judges. Barrett’s reasoning also reminds us of Justice Kavanaugh in his “Fixing Statutory interpretation” where he advocated that judges determine the “best reading.” The question is again who thinks the reading to be the best, and if that assessment can be applied beyond one judge or a group of judges.
Bernadette M. Meyler is the Carl and Sheila Spaeth professor of law. She has a background in British and American Constitutional Law and law and humanities. Her research and her teaching combine the often surprising fields of law and literature and legal history, as well as the long history in constitutionalism that reaches back to the English common law ancestry for the U.S. Constitution. Her most recent book is Theatres of Pardoning, published by Cornell University in 2019. She is also Professor of English and Associate Dean for Research and Intellectual Life.