Executive Autocracy Loses at the Supreme Court: Biden v. Nebraska in Retrospect
Neily looks back on 2023’s Biden v. Nebraska decision, a victory for the separation of powers and a defeat for executive-branch autocracy.
Last summer the Supreme Court struck a major blow for one of the Constitution’s most important protections of liberty and limited government—separation of powers—when it struck down the Biden administration’s lawless attempt to forgive nearly half-a-trillion dollars in student debt without congressional authorization. Besides striking a blow for fiscal sanity, the ruling underscored the justices’ commitment to reining in the excesses of the modern administrative state. And while they still have plenty of work to do on that front, this is real progress.
When Congress repeatedly discusses and debates whether to enact a given policy—requiring energy producers to transition from fossil fuels to renewables, say, or forgiving hundreds of billions of dollars in federal loans—but then does nothing, that’s supposed to be the end of it. That’s because it’s the legislature’s job to make policy and the executive’s job to implement it. Thus, if Congress chooses not to pull the trigger on some policy proposal, it is not only improper but unconstitutional for the president to proceed regardless. Unfortunately, however, in the current climate of rabid polarization and an increasingly dysfunctional Congress, presidents of both parties have grown impatient with constitutionally prescribed procedures, preferring instead to forge ahead with their preferred policies even in the absence of clear legislative authorization.
And that’s precisely what happened with President Biden and student loan forgiveness. Despite his own tacit acknowledgement that he lacked authority to unilaterally cancel student debt—expressly confirmed by former Speaker Nancy Pelosi at a July 2021 press conference in which she said that the president “does not have [the] power” to cancel student debt, “[t]hat has to be an act of Congress”—on August 24, 2022, the White House pulled an abrupt about-face and announced that it would implement a sweeping loan-cancellation program without congressional action. Under that program, nearly 40 million borrowers with incomes of less than $125,000 were declared eligible for up to $20,000 in student loan cancellation.
Various individuals and entities, including Cato and the states of Missouri and Nebraska, challenged the legality of the debt-cancellation program, arguing that executive branch officials were powerless to adopt that policy precisely because it was a policy—one that only Congress had the constitutional authority to adopt but chose not to. The administration countered that Congress had in fact authorized sweeping debt relief in a 2003 law called the “HEROES Act” that was enacted in the wake of the 9/11 attacks to support members of the military with student loans and ensure that they were not “placed in a worse position” with respect to those debs by virtue of their service.
This was a stretch, to say the least, and in Biden v. Nebraska, six justices of the Supreme Court were having none of it. Employing a framework that Cato has helped pioneer called the “major questions doctrine,” the majority reasoned that the “economic and political significance” of the administration’s action was “staggering by any measure” and would result in the Secretary of Education “exercis[ing] control over a significant portion of the American economy” without express—or even colorable—congressional authorization. And such a momentous decision is simply not one that Congress would plausibly have left to the discretion of an unelected bureaucrat.
In an era where those who cannot command legislative majorities increasingly seek to have their preferred policies implemented unilaterally by presidents instead of democratically by elected policymakers, the Supreme Court’s stand against lawless debt-cancellation was a big win for liberty and limited government.