Amicus Curiae Brief — Alaska, et al., Applicants v. Department of Education, et al.
Supreme Court briefJul 16, 2024
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No. 24A11
In The
Supreme Court of the United States
_____________
States of Alaska, South Carolina, and Texas,
Applicants,
v.
Miguel Cardona, Secretary of Education, et al.,
Respondents.
_____________
On Application to the Hon. Neil M. Gorsuch, Associate Justice of the Supreme Court,
for Vacatur of Stay of Preliminary Injunction
_____________
BRIEF FOR SENATORS MITCH MCCONNELL AND BILL CASSIDY, M.D.,
AS AMICI IN SUPPORT OF APPLICATION TO THE HONORABLE NEIL M.
GORSUCH, ASSOCIATE JUSTICE OF THE SUPREME COURT, FOR
VACATUR OF STAY OF PRELIMINARY INJUNCTION
_____________
Michael A. Fragoso*
Office of the Senate
Republican Leader
The Capitol
Washington, D.C. 20510
(202) 224-3135
michael_fragoso@mcconnell.
senate.gov
Counsel for Amici Curiae
July 16, 2024
* Counsel of Record
TABLE OF CONTENTS
TABLE OF CONTENTS ................................................................................................. i
TABLE OF AUTHORITIES .......................................................................................... ii
INTEREST OF AMICI CURIAE ................................................................................... 1
ARGUMENT .................................................................................................................. 5
I. THE SAVE PLAN IS AN UNLAWFUL OVERREACH BY THE EXECUTIVE
BRANCH. ................................................................................................................... 5
II.
EXECUTIVE OVERREACH IN THE CONTEXT OF STUDENT LOANS
PREDICTABLY CROWDS OUT MEANINGFUL LEGISLATIVE SOLUTIONS
TO THE ISSUE. ......................................................................................................... 8
III. VACATING THE STAY SERVES THE PUBLIC INTEREST BECAUSE
THE SAVE PLAN IS THE LATEST POLTICAL EFFORT BY THE BIDEN
ADMINISTRATION TO FLOUT CONGRESS AND THE COURTS WHEN IT
COMES TO STUDENT LOANS. ............................................................................. 11
CONCLUSION............................................................................................................. 16
i
TABLE OF AUTHORITIES
Cases
Alaska v. Cardona, No. 24-1057-DDC-ADM, (D. Kan. June 30, 2024) ..................... 10
Loper Bright Enterprises v. Raimondo, No. 22-1219, 2024 WL 3208360 (U.S. June
28, 2024). .................................................................................................................. 11
Statutes
20 U.S.C. § 1078(b) ...................................................................................................... 10
20 U.S.C. § 1078-3........................................................................................................ 10
20 U.S.C. § 1087e(d) .................................................................................................... 10
Higher Education Act of 1965, Pub. L. 89–329, title IV,§428C, as added Pub. L. 99–
498, title IV, §402(a), 100 Stat. 1388 (1986) ........................................................... 10
Higher Education Act of 1965, Pub. L. No. 89-329 §§421–35, 79 Stat. 1219, 1236–49
(1965) ........................................................................................................................ 10
Higher Education Act of 1965, Pub. L. No. 89-329, title IV, § 428, 79 Stat. 1219,
1241-42 (1965) .......................................................................................................... 10
Other Authorities
@JoeBiden, X (Jan. 31, 2024 10:30am),
https://x.com/JoeBiden/status/1752715883829477670?.......................................... 19
Adam S. Minsky, Biden Affirms: “I Will Eliminate Your Student Debt”, Forbes, Oct
7, 2020, https://www.forbes.com/sites/adamminsky/2020/10/07/biden-affirms-iwill-eliminate-your-student-debt/ ............................................................................ 17
Amy Howe, Supreme Court strikes down Biden student-loan forgiveness program,
SCOTUSblog, June 30, 2023, https://www.scotusblog.com/2023/06/supreme-courtstrikes-down-biden-student-loan-forgiveness-program/ ......................................... 18
Annie Nova, Biden says he’s working on a new path to student loan forgiveness after
Supreme Court decision, CNBC, June 30, 2023
https://www.cnbc.com/2023/06/30/biden-says-hes-working-on-a-new-path-tostudent-loan-forgiveness-after-supreme-court-decision.html. ............................... 19
Biden’s Student Loan Scam, House Committee on Education and Workforce,
https://edworkforce.house.gov/biden-s-student-loan-scam/ .................................... 13
Cory Turner, Biden pledged to forgive $10,000 in student loan debt. Here’s what he’s
done so far, Nat’l Pub. Radio, Dec. 7, 2021,
https://www.npr.org/2021/12/07/1062070001/student-loan-forgiveness-debtpresident-biden-campaign-promise. ........................................................................ 17
David Mendez & Maddie Gannon, Biden introduces ‘new path’ for student debt relief
after Supreme Court ruling, Spectrum News, June 30, 2023,
https://ny1.com/nyc/all-boroughs/politics/2023/06/30/biden-introduces--new-path-for-student-debt-relief-after-supreme-court-ruling. ............................................... 19
Editorial, Biden’s Student Loan Boast: The Supreme Court ‘Didn’t Stop Me’, Wall St.
J., Feb. 23, 2024, https://www.wsj.com/articles/joe-biden-student-debt-forgivenesssupreme-court-0c5204fe ........................................................................................... 19
Erich S. Gruen, The Last Generation of the Roman Republic (1995) ........................ 16
ii
Improving Income-Driven Repayment for the William D. Ford Federal Direct Loan
Program, 88 Fed. Reg. 1894 (Jan. 11, 2023) (to be codified at 34 C.F.R. pt. 685). .. 9
Improving Income-Driven Repayment for the William D. Ford Federal Direct Loan
Program, 88 Fed. Reg. 43820 (July 10, 2023) (to be codified at 34 C.F.R. pt. 685). 9
Jason Delisle & Jason Cohn, The SAVE Plan for Student Loan Repayment: Which
Fields and Colleges Benefit Most?, Urban Institute, September 2023,
https://www.urban.org/sites/default/files/202310/The%20SAVE%20Plan%20for%20Student%20Loan%20Repayment.pdf......... 19
Joe Biden, Joe Biden Outlines New Steps to Ease Economic Burden on Working
People, Medium, Apr. 9, 2020, https://medium.com/@JoeBiden/joe-biden-outlinesnew-steps-to-ease-economic-burden-on-working-people-e3e121037322. ............... 17
John Adams, 6 The Works of John Adams, Second President of the United States:
with a Life of the Author, Notes and Illustrations, by his Grandson Charles
Francis Adams 9 (1856). .......................................................................................... 16
Junlei Chen & Kent Smetters, Budgetary Cost of Newly Proposed Income-Driven
Repayment Plan, Penn Wharton Budget Model, Jan. 30, 2023 ............................. 10
Letter from Bill Cassidy, U.S. Senator, et al. to Miguel Cardona, Secretary of
Education (Feb. 11, 2023),
https://www.help.senate.gov/imo/media/doc/idr_full_comment1.pdf. ................ 9, 10
M. Tullius Cicero, Letters to Atticus, 11.23 (Evelyn Shuckburgh & Evelyn S.
Shuckburgh, eds., 1908),
http://www.perseus.tufts.edu/hopper/text?doc=Perseus%3Atext%3A1999.02.0022
%3Atext%3DA%3Abook%3D11%3Aletter%3D23 ................................................... 17
Michael Stratford, Federal appeals court temporarily halts Biden’s student debt
relief program, Politico, Oct. 21, 2022,
https://www.politico.com/news/2022/10/21/federal-appeals-court-temporarilyhalts-bidens-student-debt-relief-program-00063021. ............................................. 18
Morgan Watkins, ‘Student loan socialism’: McConnell slams Biden for forgiving
$10K of student loan debt, Louisville Courier J., Aug. 24, 2022,
https://www.courier-journal.com/story/news/politics/mitchmcconnell/2022/08/24/ky-politics-mcconnell-slams-biden-student-loanforgiveness/65418181007/ ........................................................................................ 18
Press Release, Ranking Member Cassidy Blasts Biden Veto of CRA to Overturn
Unfair Student Loan Scheme, U.S. Senator Bill Cassidy (June 7, 2023),
https://www.cassidy.senate.gov/newsroom/press-releases/ranking-membercassidy-blasts-biden-veto-of-cra-to-overturn-unfair-student-loan-scheme/ ........... 14
Press Release, Ranking Member Cassidy, Colleagues Unveil Landmark Package to
Lower Education Costs and Student Debt, U.S. Senate Committee on Health,
Education, and Pensions (June 14, 2023),
https://www.help.senate.gov/ranking/newsroom/press/ranking-member-cassidycolleagues-unveil-landmark-package-to-lower-education-costs-and-student-debt.
................................................................................................................................... 13
Sallust, The War with Cataline (J.C. Rolfe, trans., 1965) .......................................... 16
The Federalist No. 10 (James Madison), at 79 (Clinton Rossiter ed., 2003). ............ 15
iii
INTEREST OF AMICI CURIAE1
Senator Mitch McConnell is the Senior Senator from Kentucky and the elected
Leader of the Republican Conference in the United States Senate. The longest serving
Senate Leader in American history, he is entrusted by his colleagues with
safeguarding the legislative prerogatives of the Senate in the face of executive
overreach. He has frequently participated in litigation to vindicate constitutional
principles, both as an amicus, as in Biden v. Nebraska, 600 U.S. 482 (2023),2 and as
a party, as in McConnell v. FEC, 540 U.S. 93 (2003).
Senator Bill Cassidy, M.D., is the Senior Senator from Louisiana and the
Ranking Member of the Senate Committee on Health, Education, Labor, and
Pensions (HELP). Senator Cassidy has a longstanding interest in education policy
and is the senior most Republican on the HELP Committee. He has led efforts to
enact legislation to reform student-loan programs while opposing efforts by the
Department of Education to do so by executive fiat. Senator Cassidy led Senate
colleagues on the Lowering Education Costs and Debt Act and cosigned the Biden v.
1 Under Rule 37.6 of the Rules of this Court, amici state that no counsel for a party
authored this brief in whole or in part, and no counsel or party made a monetary
contribution intended to fund the preparation or submission of this brief. No person
made a monetary contribution to its preparation or submission.
2 See Br. of Marsha Blackburn et al., Biden v. Nebraska, Nos. 22-506, 22-535 (Sup.
Ct.) (Feb. 3, 2023), available at https://www.supremecourt.gov/DocketPDF/22/22506/253935/20230203133433451_Final%20Senators%20Amicus%20Brief%20%20Biden%20v.%20Nebraska.pdf.
1
Nebraska amicus brief arguing that the student-loan program at issue was a clear
overreach of executive power because it circumvented the authority of Congress.
2
INTRODUCTION AND SUMMARY OF ARGUMENT
Just as Congress does not hide an elephant in a mouse hole, it also does not
hide a $475 billion student-loan jubilee in plain sight. The Biden Administration
cannot justify a program of such economic and political significance with ambiguous
statutory authority. Without clear statutory authority, the administration cannot
implement its politically expedient SAVE Plan and the injunction below is merited.
First, the SAVE Plan is an unlawful overreach by the executive branch. In
context, the administration lacks the statutory authority to implement mass student
loan cancelation through an ancillary provision in the code, which describes only one
of nine loan repayment programs outlined by statute. This thin reed of authority fails
under either the major questions doctrine or the Loper Bright decision. The
administration’s tortured interpretation of existing law stretches beyond a
permissible interpretation and must be tossed out.
Second, executive overreach in the context of student loans predictably crowds
out any meaningful legislative solutions to the issue. When the Biden Administration
ignores existing statutes to pursue politically motivated policy goals beyond its
authority, Congress’s role is reduced to an ancillary function. The Constitution vests
all legislative powers—especially the power of the purse—in the Congress, not the
executive branch. Unfaithfully executing existing laws while increasing spending by
hundreds of billions of dollars disrupts the separation of powers and short-circuits
the legislative process.
3
Third, vacating the stay serves the public interest because the SAVE Plan is
the latest political effort by the Biden Administration to flout Congress and the courts
when it comes to student loans. Allowing the administration to continue to implement
a blatantly unlawful program, by hook or by crook, in order to secure a putative
electoral benefit would irreparably harm the separation of powers, the majority of
Americans without student loan debt, and the plaintiffs in this case. On the other
hand, reinstituting the injunction will preserve the status quo as the lower courts
continue to evaluate the merits of this case.
4
ARGUMENT
I.
THE SAVE PLAN IS AN UNLAWFUL OVERREACH BY THE
EXECUTIVE BRANCH.
The Department of Education has been on notice that their SAVE Plan is
unlawful from the start. First proposed on January 11, 2023,3 and finalized on July
10, 2023,4 the plan was designed to convert a safety-net program for low-income
borrowers into a massive wealth transfer from taxpayers to the college-educated.
When the rule was first proposed, Senator Cassidy wrote to Secretary
Cardona—along with various other Members of Congress, including Chairwoman
Virginia Foxx of the House Committee on Education and Workforce—encouraging
him “to withdraw the latest radical proposal put forth by [his] Department and work
with Congress on meaningful and sustainable student-loan reforms.”5 He pointed out
that the “proposal ultimately turns the Direct Loan program, which provides millions
of Americans with the opportunity to move up the economic ladder, into an
untargeted grant.”6 He cited the University of Pennsylvania’s Penn Wharton Budget
Model to point out that the cost of the program—$138 billion according to the Biden
Administration—was off by over a multiple of three.7 Just as Congress does not hide
3 Improving Income-Driven Repayment for the William D. Ford Federal Direct Loan
Program, 88 Fed. Reg. 1894 (Jan. 11, 2023) (to be codified at 34 C.F.R. pt. 685).
4 Improving Income-Driven Repayment for the William D. Ford Federal Direct Loan
Program, 88 Fed. Reg. 43820 (July 10, 2023) (to be codified at 34 C.F.R. pt. 685).
Letter from Bill Cassidy, U.S. Senator, et al. to Miguel Cardona, Secretary of
Education
(Feb.
11,
2023),
https://www.help.senate.gov/imo/media/doc/idr_full_comment1.pdf.
6 Id.
7 Id. (citing Junlei Chen & Kent Smetters, Budgetary Cost of Newly Proposed IncomeDriven Repayment Plan, Penn Wharton Budget Model, Jan. 30, 2023).
5
5
an elephant in a mouse hole, it also does not hide a $475 billion student-loan jubilee
in plain sight. Senator Cassidy also laid out the various ways in which the proposed
rule simply lacked legislative authorization.8 Briefly, the administration cannot use
an ancillary provision in the U.S. Code, which describes only one of nine loan
repayment programs outlined by statute, to effect a mass student-loan cancellation.9
Nevertheless, the Biden Administration persisted.
Unsurprisingly, a number of States brought suit to enjoin the final rule, and
Judge Crabtree in the District of Kansas did so. Amici believe he was correct to enjoin
the final rule. To begin with, Judge Crabtree concluded that the proposed rule
implicates the Major Questions Doctrine, relying on this Court’s decision in Biden v.
Nebraska that “student loan debt cancellation plans that forgive enormous amounts
of debt are major questions.” Alaska v. Cardona, No. 24-1057-DDC-ADM, (D. Kan.
June 30, 2024) at *13. Because a major question was implicated, Judge Crabtree
analyzed whether or not the statute had authorized the plan. He concluded that the
text of the Higher Education Act (HEA) did allow for an income-driven repayment
plan, but the statutory context did not provide for a mass student-loan cancelation
program. See id. at *14–17. The most Judge Crabtree could find was “a colorable,
even a plausible basis for the SAVE Plan,” id. at *19, but that is not enough to provide
8
Id.
9 20 U.S.C. § 1087e(d); see also Higher Education Act of 1965, Pub. L. No. 89-329
§§421–35, 79 Stat. 1219, 1236–49 (1965); 20 U.S.C. § 1078(b); see also Higher
Education Act of 1965, Pub. L. No. 89-329, title IV, § 428, 79 Stat. 1219, 1241–42
(1965); 20 U.S.C. § 1078-3; see also Higher Education Act of 1965, Pub. L. 89–329,
title IV,§428C, as added Pub. L. 99–498, title IV, §402(a), 100 Stat. 1388 (1986).
6
a “clear authorization” for the plan, id. at *20. In the end, the Biden Administration
lacked “a clear showing of … authority” to justify the SAVE Plan. Id. at *24. Given
the likelihood of success on the Major Questions issue, Judge Crabtree applied the
rest of the preliminary injunction factors and decided to enjoin the SAVE Plan
nationwide.10
The force of Judge Crabtree’s opinion has only been augmented by this
Court’s recent opinion in Loper Bright Enterprises v. Raimondo, No. 22-1219, 2024
WL 3208360 (U.S. June 28, 2024). There, this Court turned its back on so-called
Chevron deference whereby supposedly ambiguous statutes were left to agencies to
interpret permissibly. As the Court noted, “It therefore makes no sense to speak of a
‘permissible’ interpretation that is not the one the court, after applying all relevant
interpretive tools, concludes is best. In the business of statutory interpretation, if it
is not the best, it is not permissible.” Loper Bright, 2024 WL 3208360 at *16. It
concluded, “Courts must exercise their independent judgment in deciding whether
an agency has acted within its statutory authority, as the APA requires.” Id. at *22.
The principles articulated in Loper Bright squarely bolster Judge Crabtree’s
analysis of the HEA’s statutory context. While he found a “colorable” or “plausible”
statutory justification for the SAVE Plan, such agency interpretations are no longer
10 Amici take no view on the merits of the scope of the injunction. Senator McConnell
has previously questioned the propriety of national injunctions. See, e.g., The Stop
Helping Outcome Preferences (SHOP) Act of 2024, S. 4095 (118th Cong.). Regardless
of how this Court addresses that question at some later date, this petition is an
exceptionally poor vehicle for it to do so, and amici therefore simply urge the Court
to vacate the stay of the injunction below.
7
sufficient to justify rulemaking authority—even had they not already run afoul of
the Major Questions Doctrine.
At minimum, the lower courts should review the SAVE Plan in light of Loper
Bright in order to fully analyze the issues at stake here. And they should do so
without the plan moving full-steam ahead to get out in front of the very likely
further adverse rulings coming the Biden Administration’s way. Vacating the stay
below to reinstitute Judge Crabtree’s injunction will give the lower courts the
breathing room they need to properly adjudicate the administrative law questions
presented by this case while limiting further harm to the plaintiffs.
II.
EXECUTIVE OVERREACH IN THE CONTEXT OF STUDENT LOANS
PREDICTABLY CROWDS OUT MEANINGFUL LEGISLATIVE
SOLUTIONS TO THE ISSUE.
Significant reform to student-loan programs is the province of Congress, but
Congress cannot act when the Administration gets what it wants by executive fiat.
Just as a bank cannot be expected to renegotiate the terms of a mortgage with a bank
robber, Congress cannot renegotiate the policies of the student-loan programs when
the Biden Administration simply chooses to put hundreds of billions of dollars on its
side of the ledger at will.
There are many legislative proposals in Congress to address student debt and
reform student loan programs, including some spearheaded by Senator Cassidy. In
June 2023, Senator Cassidy and a number of his colleagues introduced the Lowering
Education Costs and Debt Act (S. 1972), a package of bills aimed at addressing not
only the existence of student loan debt but also the issues driving the ever-increasing
8
cost of higher education that drives the debt. Importantly, a major component of this
package proposes to make structural reforms to student loans and simplify the
student loan borrowing process by streamlining payment options for borrowers. As
Senator Cassidy said at the time, “Unlike President Biden’s student loan schemes,
this plan addresses the root causes of the student debt crisis. It puts downward
pressure on tuition and empowers students to make the educational decisions that
put them on track to academically and financially succeed.”11 The House has
proposals as well, such as the College Cost Reduction Act (H.R. 6591).12 The Biden
Administration has been entirely uninterested in working with Congress in these
efforts to reform student loan programs and address the root causes of student-loan
debt.
Indeed there has been bipartisan opposition to the Biden Administration’s goit-alone attitude. Last summer Congress passed a resolution of disapproval under the
Congressional Review Act to overturn the original student-loan jubilee. It passed 52
to 46 in the Senate and 218 to 203 in the House—bipartisan majorities in both
chambers. President Biden, of course, vetoed the resolution.13 And when he could not
11 Press Release, Ranking Member Cassidy, Colleagues Unveil Landmark Package to
Lower Education Costs and Student Debt, U.S. Senate Committee on Health,
Education,
and
Pensions
(June
14,
2023),
https://www.help.senate.gov/ranking/newsroom/press/ranking-member-cassidycolleagues-unveil-landmark-package-to-lower-education-costs-and-student-debt.
12 Biden’s Student Loan Scam, House Committee on Education and Workforce,
https://edworkforce.house.gov/biden-s-student-loan-scam/.
13 Press Release, Ranking Member Cassidy Blasts Biden Veto of CRA to Overturn
Unfair Student Loan Scheme, U.S. Senator Bill Cassidy (June 7, 2023),
https://www.cassidy.senate.gov/newsroom/press-releases/ranking-member-cassidyblasts-biden-veto-of-cra-to-overturn-unfair-student-loan-scheme/.
9
do the same to this Court’s decision in Biden v. Nebraska, he decided instead to push
different lawless, unilateral attempts to reach the same debt-cancellation goal.
The perception by the Biden Administration that they have the power to
achieve these sweeping policy goals alone has short-circuited the legislative process.
This should come as no surprise. As Justice Thomas noted in his recent concurrence
in Loper Bright, “No matter the gloss put on it, Chevron expands agencies’ power
beyond the bounds of Article II by permitting them to exercise powers reserved to
another branch of Government.” Loper Bright, 2024 WL 3208360 at *23 (Thomas, J.,
concurring). That overarching dynamic of executive overreach eliminates the political
necessity of legislation, which in turn eliminates its possibility. As Paul Clement
noted at oral argument in Loper Bright,
I think you just have to look at this Court’s docket. It’s been one major
rule after another. It hasn’t been one major statute after another. I
would have thought Congress might have addressed student loan
forgiveness if that were really such an important issue to one party in
Congress. I would have thought maybe they would have fixed the
eviction moratorium. I could go on and on on these issues. They don’t get
addressed because Chevron makes it so easy for them not to tackle the
hard issues and forge a permanent solution.14
As Mr. Clement also noted, “it’s really convenient for some members of Congress not
to have to tackle the hard questions and to rely on their friends in the executive
branch to get them everything they want.”15 Perhaps. Amici would prefer to legislate,
but unfortunately the possible efficacy of executive overreach also makes it
14 Oral Arg. 26:2–13, Loper Bright, 2024 WL 3208360 (cleaned up).
15 Id. at 17:21–25.
10
convenient for the Biden Administration to get what it wants without having to
engage in the give-and-take of legislation.
III.
VACATING THE STAY SERVES THE PUBLIC INTEREST BECAUSE
THE SAVE PLAN IS THE LATEST POLTICAL EFFORT BY THE
BIDEN ADMINISTRATION TO FLOUT CONGRESS AND THE
COURTS WHEN IT COMES TO STUDENT LOANS.
The Biden Administration is determined to effect student-loan cancellation
before the November elections regardless of what Congress or this Court have to say
about it. Following its defeat before this Court in Biden v. Nebraska, the Biden
Administration has simply doubled down on this flawed vote-buying policy.
The cancellation of private debt has long been a preferred and dangerous tool
for political actors trying to strike a populist pose. Its menace was an animating factor
in the establishment of our Constitution, with James Madison observing,
The influence of factious leaders may kindle a flame within their
particular States…. A rage for paper money, for an abolition of debts, for
an equal division of property, or for any other improper or wicked
project, will be less apt to pervade the whole body of the Union than a
particular member of it….16
It was a fear he echoed from John Adams who had previously observed that,
if all were to be decided by a vote of the majority…. the time would not
be long before courage and enterprise would come, and pretexts be
invented by degrees, to countenance the majority in dividing all the
property among them…. Debts would be abolished first; taxes laid heavy
on the rich, and not at all on the others; and at last a downright equal
division of every thing be demanded, and voted.17
16 The Federalist No. 10 (James Madison), at 79 (Clinton Rossiter ed., 2003) (emphasis
added).
17 John Adams, 6 The Works of John Adams, Second President of the United States:
with a Life of the Author, Notes and Illustrations, by his Grandson Charles Francis
Adams 9 (1856) (emphasis added).
11
It’s unsurprising that the Founders took such a dim view of the practice
because they were well-acquainted with private-debt cancellation as the calling card
of the greatest villains of antiquity. First among them was the Roman conspirator
Cataline. Perpetually unable to attain high magistracy in the late Roman Republic,
Cataline surrounded himself with a circle where “[h]abitual luxury and
licentiousness ... produced debts of enormous magnitude” whereby he became “the
champion of the indebted aristocracy.”18 To cater to both this base of the idle rich and
present himself as a champion of the people, Cataline made debt cancellation “one of
the watchwords of his platform.”19 As the historian Sallust described, “Thereupon
Catiline promised abolition of debts, the proscription of the rich, offices, priesthoods,
plunder, and all the other spoils that war and the license of victors can offer.”20 It was
a platform designed to appeal to “large numbers and varied types of men in debt.”21
The result, when politics failed, was a populist conspiracy designed to overthrow the
Roman Republic, stopped by the prudent actions of the Roman Consul at the time,
Cicero.22
18 Erich S. Gruen, The Last Generation of the Roman Republic 420 (1995).
19 Id. at 425.
20 Sallust, The War with Cataline XXI (J.C. Rolfe, trans., 1965).
21 Gruen, supra n. 18 at 426.
22 The specter of debt cancellation left such a mark on Cicero that he would go on to
complain to his friend, Atticus, that his own son-in-law, P. Cornelius Dolabella, would
seek to cancel debts as Tribune (an act he considered a ground for divorce). See M.
Tullius Cicero, Letters to Atticus, 11.23 (Evelyn Shuckburgh & Evelyn S. Shuckburgh,
eds.,
1908),
http://www.perseus.tufts.edu/hopper/text?doc=Perseus%3Atext%3A1999.02.0022%3
Atext%3DA%3Abook%3D11%3Aletter%3D23.
12
As with the ancient populists, then-candidate Biden first proposed his studentloan jubilee as a vote-buying campaign tactic. Although initially cool to the idea, as
the 2020 campaign heated up, Biden “embraced more dramatic steps to alleviate the
burden of student loan debt ….”23 During the campaign he pledged to issue $10,000
of across-the-board student debt cancellation—as first proposed by Senator Elizabeth
Warren—although the mechanics of any such cancellation were unclear.24
Once inaugurated, President Biden did not move immediately to enact these
promised jubilees. Instead, “The Biden administration’s approach to student loan
relief began with improving, extending or expanding a handful of programs that were
already on the books.”25 As some of his supporters in the press complained at the
time, “One year later, while Biden has provided hundreds of thousands of borrowers
with debt relief, that $10,000 promise remains unfulfilled.”26
This changed when President Biden, in the run-up to the 2022 midterm
elections, enacted his plan at issue in Biden v. Nebraska. The details of that plan are
well known to this Court. Senator McConnell said of the program at the time,
“President Biden’s student loan socialism is a slap in the face to every family who
23 Adam S. Minsky, Biden Affirms: “I Will Eliminate Your Student Debt”, Forbes, Oct
7, 2020, https://www.forbes.com/sites/adamminsky/2020/10/07/biden-affirms-i-willeliminate-your-student-debt/.
24 Joe Biden, Joe Biden Outlines New Steps to Ease Economic Burden on Working
People, Medium, Apr. 9, 2020, https://medium.com/@JoeBiden/joe-biden-outlinesnew-steps-to-ease-economic-burden-on-working-people-e3e121037322.
25 Cory Turner, Biden pledged to forgive $10,000 in student loan debt. Here’s what
he’s
done
so
far,
Nat’l
Pub.
Radio,
Dec.
7,
2021,
https://www.npr.org/2021/12/07/1062070001/student-loan-forgiveness-debtpresident-biden-campaign-promise.
26 Id.
13
sacrificed to save for college, every graduate who paid their debt and every American
who chose a certain career path or volunteered to serve in our Armed Forces in order
to avoid taking on debt.”27
Importantly, while that case was moving through the courts, the Biden
Administration took a shocking tone of defiance against the judiciary. When the
Eighth Circuit ruled against them, the response from the White House spokesperson
was, “Tonight’s temporary order does not prevent borrowers from applying for
student debt relief…. It also does not prevent us from reviewing these applications
and preparing them for transmission to loan servicers.”28
The posture of defiance only grew following this Court’s decision. In an official
statement issued by the White House, President Biden flatly called the court’s ruling
“wrong” and pledged that “[t]his fight is not over.”29 President Biden complained that,
27 Morgan Watkins, ‘Student loan socialism’: McConnell slams Biden for forgiving
$10K of student loan debt, Louisville Courier J., Aug. 24, 2022, https://www.courierjournal.com/story/news/politics/mitch-mcconnell/2022/08/24/ky-politics-mcconnellslams-biden-student-loan-forgiveness/65418181007/.
28 Michael Stratford, Federal appeals court temporarily halts Biden’s student debt
relief
program,
Politico,
Oct.
21,
2022,
https://www.politico.com/news/2022/10/21/federal-appeals-court-temporarily-haltsbidens-student-debt-relief-program-00063021.
29 Amy Howe, Supreme Court strikes down Biden student-loan forgiveness program,
SCOTUSblog, June 30, 2023, https://www.scotusblog.com/2023/06/supreme-courtstrikes-down-biden-student-loan-forgiveness-program/.
14
prior to the ruling, the “money was literally about to go out the door,”30 and he
warned, “Today’s decision has closed one path. Now we’re going to pursue another.”31
And so he did. Nearly a year later, President Biden declared, in announcing
the SAVE Plan, “The Supreme Court blocked [debt cancellation], but that didn’t stop
me.”32
Which brings us to the instant matter. As President Biden has struggled
mightily to enact his debt-cancellation scheme without regard for Congress or the
courts, it’s clear beyond cavil that the objective is to get the money “out the door” for
electoral purposes. According to the Urban Institute’s Center on Education Data and
Policy, the predecessor to the SAVE Plan ensured most borrowers would pay at least
the amount they borrowed. Under the SAVE Plan the typical associates degree
borrower would only pay 69 percent of the amount borrowed and most bachelor’s
degree borrowers would not pay back their principal balance.33
30 David Mendez & Maddie Gannon, Biden introduces ‘new path’ for student debt relief
after Supreme Court ruling, Spectrum News, June 30, 2023, https://ny1.com/nyc/allboroughs/politics/2023/06/30/biden-introduces--new-path--for-student-debt-reliefafter-supreme-court-ruling.
31 Annie Nova, Biden says he’s working on a new path to student loan forgiveness after
Supreme
Court
decision,
CNBC,
June
30,
2023
https://www.cnbc.com/2023/06/30/biden-says-hes-working-on-a-new-path-to-studentloan-forgiveness-after-supreme-court-decision.html.
32 Editorial, Biden’s Student Loan Boast: The Supreme Court ‘Didn’t Stop Me’, Wall
St. J., Feb. 23, 2024, https://www.wsj.com/articles/joe-biden-student-debtforgiveness-supreme-court-0c5204fe; see also @JoeBiden, X (Jan. 31, 2024 10:30am),
https://x.com/JoeBiden/status/1752715883829477670?.
33 Jason Delisle & Jason Cohn, The SAVE Plan for Student Loan Repayment: Which
Fields and Colleges Benefit Most?, Urban Institute, September 2023,
https://www.urban.org/sites/default/files/202310/The%20SAVE%20Plan%20for%20Student%20Loan%20Repayment.pdf.
15
The injunction from the District Court simply hits pause on that process and
maintains the status quo as this litigation moves forward. The issues here are
admittedly complex. But should the program be deemed unlawful (as amici believe it
is), this will be a parchment judgment if debt has already been canceled under the
program because surely the canceled debts won’t be reinstated. On the other hand,
should the mass-cancellation of student loan debt somehow pass legal muster, then
the relief will only have been delayed if the injunction remains in place. Leaving the
injunction stayed will make actual relief impossible in many instances, as the Biden
Administration cynically hopes.
Restoring the injunction prevents President Biden from sending the money out
the door, never to be seen again, through a legally dubious program in the final
stretch of his desperate reelection campaign.
CONCLUSION
For the foregoing reasons amici urge this Court to vacate the stay of the Court
of Appeals and allow Judge Crabtree’s injunction to go into effect.
16
Respectfully submitted,
/s/ Michael A. Fragoso
Counsel of Record
Office of the Senate
Republican Leader
The Capitol
Washington, D.C. 20510
(202) 224-3135
michael_fragoso@mcconnell.senate.gov
Attorney for Amici Curiae
July 16, 2024
17
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.