Week In a Nutshell, 3/3/23

March 3, 2023

Week In a Nutshell, 3/3/23

Student loan borrowers and advocates gather for the People's Rally To Cancel Student Debt During The Supreme Court Hearings On Student Debt Relief on February 28, 2023 in Washington, DC. (Photo by Jemal Countess/Getty Images for People's Rally to Cancel Student Debt )

Here are some of the legal news stories making headlines this week:

The Supreme Court heard oral arguments in a pair of challenges to the Biden administration’s student loan forgiveness program.

Last year, President Joe Biden announced an initiative to cancel up to $10,000 in federal loans for many borrowers and cancel up to $20,000 in federal loans for recipients of Pell Grants (loans that are available for students from low-income families). A number of legal challenges followed, including the two cases now before the Supreme Court. The challengers here include six states with Republican attorneys general and two individuals who are unable to collect the full benefits of the program.
During the hearings, the Court’s conservative justices appeared skeptical that the administration had the legal authority to enact the plan. The justices invoked the “major questions doctrine,” a relatively recent theory related to statutory interpretations made by executive branch agencies, which requires the agencies to receive congressional approval in order to act on significant issues. Chief Justice John Roberts said, “If you’re talking about this in the abstract, I think most casual observers would say if you’re going to give up that much amount of money, if you’re going to affect the obligations of that many Americans on a subject that’s of great controversy, they would think that’s something for Congress to act on.” “We take very seriously the idea of separation of powers and that power should be divided to prevent its abuse,” Roberts continued.
U.S. Solicitor General Elizabeth Prelogar defended the program before the justices. Prelogar argued that legal authority for the program falls under the HEROES Act of 2003. Presidents Biden and Trump invoked that statute to pause student loan payments since the start of the COVID-19 pandemic. Prelogar pointed out that loan cancellation is “an unprecedented form of relief, but it was very much needed in this circumstance to ensure we did not see a deluge of default and delinquency on student loan debt.”
The Court’s liberal justices seemed inclined to let the program stand, arguing that the challengers lacked legal standing to bring the lawsuits in the first place. During oral arguments, Justice Elena Kagan said, “Usually, we don’t allow one person to step into another’s shoes and say, ‘I think that that person suffered harm,’ even if the harm is very great. So why isn’t ‘MOHELA’ responsible for deciding whether to bring this suit?” (MOHELA is an entity in Missouri that manages loans. MOHELA is not a party in the lawsuits.) Justice Sonia Sotomayor also laid out the practical implications of the case. “There’s 50 million students…who will benefit from this. Who today will struggle. Many of them don’t have assets sufficient to bail them out after the pandemic. They don’t have friends or families or others who can help them make these payments. And what you’re saying is now we’re going to give judges the right to decide how much aid to give them instead of the person with the expertise and the experience, the secretary of education who’s been dealing with educational issues and the problems surrounding student loans,” Sotomayor said.

Special counsel Jack Smith is continuing his investigation.

Smith is reportedly in a legal battle to secure the testimony of former Vice President Mike Pence. Smith issued a subpoena to Pence last month seeking testimony and documents related to January 6 and former President Donald Trump’s efforts to overturn the results of the 2020 election. Pence has indicated that he will invoke the Constitution’s “speech or debate” clause in order to avoid complying with the subpoena. Pence recently said, “I’m going to fight the Biden DOJ subpoena for me to appear before the grand jury because I believe it’s unconstitutional and it’s unprecedented.”
Smith also reportedly issued a subpoena to Trump’s daughter Ivanka and his son-in-law, Jared Kushner. At this time it is unclear whether Trump plans to invoke executive privilege in an effort to shield them from testifying — both Ivanka Trump and Kushner were serving in the White House on January 6. As reported by news outlets and described by the House January 6 Committee, Ivanka Trump accompanied her father for much of January 6, including during the Oval Office phone call with Pence that morning and at the Ellipse where Trump spoke to supporters. Kushner returned to Washington from the Middle East on the afternoon of January 6.
In other news, on Tuesday, a group of high-ranking members of Congress from both parties received a briefing on the classified documents that were retrieved from the possession of Trump, Biden, and Pence. The members who received the briefing, a.k.a. the “Gang of Eight,” included the leaders of the Senate and House — Senate Majority Leader Chuck Schumer (D-NY); Senate Minority Leader Mitch McConnell (R-KY); House Speaker Kevin McCarthy (R-CA); and House Minority Leader Hakeem Jeffries (D-NY) — and the top Democrat and Republican from each chamber’s intelligence committee: Sens. Mark Warner (D-VA) and Marco Rubio (R-Fl), and Reps. Michael Turner (R-OH) and Jim Himes (D-CT).

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