WASHINGTON — Congressional Republicans want the Supreme Court to use a case about student loan debt relief to restrict the regulatory power of the Biden administration — even if that also would hamstring a future GOP president.

In two briefs in high court cases set for oral argument Tuesday, more than half of the Republicans in Congress urged the justices to rely on a legal doctrine that requires an agency to point to “clear congressional authorization” for rules on any “major questions” of political and economic significance.

The Biden administration has argued that the major questions doctrine does not apply to its program to forgive as much or more than $400 billion in student loans owed to the government. The authority to discharge debt is part of a federal benefit program — not a regulatory action — and it is central to a 2003 law, the government said in a brief.

But 43 Republican senators filed a brief that calls for the Supreme Court to use the major questions doctrine to find that the student debt relief plan goes beyond what Congress intended in that law—especially when it will cost more than $2,500 per taxpayer.

“And, if anything, Congress’s exclusive power to spend and forgive the monies owed to the government should make this Court even more reluctant to believe that it broadly delegated that core legislative power here,” the brief said.

More than 100 House Republicans filed a brief in the cases that also argues that the debt program “undoubtedly” has the significance to trigger the major questions doctrine.


The major questions doctrine has surfaced in Supreme Court decisions since 1994, according to a Congressional Research Service report issued last year.

But the Supreme Court’s conservative majority expressly referenced the doctrine for the first time in a decision last term, which found that the EPA did not have the authority to address the major question of greenhouse gas emissions under current law.

Steven Schwinn, a law professor at the University of Illinois Chicago, said the Supreme Court in these cases may expand the doctrine to agency actions outside of rule-making.

Schwinn called the Republicans’ arguments for an expanded doctrine “very short-sighted,” since it may mean a future Republican president also would have less power to steer an administration separate from Congress.

“If they get the ruling from the Supreme Court that they’re looking for on these constitutional questions, that’s going to bind the hands not only President Biden, but all future presidents, which will certainly include a Republican president at some point in the future,” Schwinn said.

Some Republican lawmakers such as Sen. John Kennedy, R-La., one of the signatories on the brief and a member of the Senate Judiciary Committee, are fine with that prospect.


“There’s no way that a president, any president, can just unilaterally cancel student debt, which is an appropriation without an act of Congress,” Kennedy said in an interview. “President Biden seems intent on doing that anyway.”

Sen. Josh Hawley, R-Mo., another signatory on the Senate brief, said he hopes the justices use the case to further restrict executive agencies.

“You have no idea where the court is going to go with it next, but I think they ought to say, ‘Congress cannot delegate this kind of authority to agencies,’” Hawley said in an interview.

President Joe Biden first announced the forgiveness last year, following up on a campaign promise to forgive student debt. The administration cited hardship tied to the coronavirus pandemic and relied on a 2003 law that allows the Secretary of Education to modify loans for borrowers who face hardship because of national emergencies.

The administration intended to cancel up to $20,000 in debt for millions of borrowers and the administration said more than 16 million borrowers had been approved for forgiveness. Student loan payments have been paused throughout the pandemic and the Biden administration intended to sunset the pause alongside the debt forgiveness.

The court agreed to decide two legal challenges to the program — one from a group of Republican-led states and another from borrowers who challenged their ineligibility for forgiveness.

The justices will issue a decision in the case before the conclusion of the Supreme Court’s term at the end of June.

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