Biden’s SCOTUS evolution
Good morning! It’s Monday, July 3, 2023. The 2024 elections are 491 days away. If this newsletter was forwarded to you, subscribe here. If you want to contribute to support my work, donate here.
In case you missed it: Here’s a link to my inside-the-room report last week on the Supreme Court’s affirmative action decision, which I was one of 15 reporters to witness. Give it a read if you haven’t already!
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When the Supreme Court overturned Roe v. Wade last year, President Biden faced scorching criticism from progressive activists who felt he responded too slowly to the decision.
“Joe Biden’s Dobbs Response Has Been Breathtakingly Awful,” the liberal writer Rebecca Traister declared in one representative article in New York magazine, slamming Biden for his “lumbering” post-Roe strategy.
A Washington Post piece in the same period, calling Biden’s response “slow-footed,” revealed that the White House had expected the Supreme Court to release its abortion decision on the last day of the term. When the justices handed down their ruling a week earlier — even though a draft of the decision had already been leaked — Biden’s team was apparently caught off-guard and left scrambling.
At the time, that Post piece sparked a mini-controversy because of a statement from then-White House communications director Kate Bedingfield, who charged that the activists criticizing Biden were “out of step with the mainstream of the Democratic Party.” (Traister described the statement as an “egregious” example of the White House doing “the right wing’s job for them.”)
With a high-stakes re-election campaign on the horizon, the White House is plainly trying to avoid such disputes this time around, laboring to keep Democratic activists in the fold after last week’s Supreme Court decisions on affirmative action and student loans.
While Biden angered progressives by taking two weeks after Dobbs to issue an executive order on abortion access, the White House was ready with new executive actions after the major rulings last week. On both Thursday and Friday, the White House announced unscheduled speeches from Biden shortly after the decisions were announced; both times he unveiled a suite of actions responding to the rulings.
On Thursday, that was a list of ways the Department of Education would continue encouraging colleges to pursue diversity within the confines of the Supreme Court ruling banning race-based affirmative action. On Friday, Biden went even further, announcing a plan to basically replace the student loan debt cancellation proposal that the Supreme Court had struck down as unconstitutional.
The student loan response, in particular, shows how emboldened the White House has grown in a year.
After Dobbs, Politico reported that Biden stopped short of embracing some of the more aggressive abortion ideas pushed by the left — including a health emergency declaration and opening abortion clinics on federal land — out of fear that the Supreme Court would simply turn around and strike them down too.
The president no longer seems so concerned: with his new student loan plan, Biden is effectively daring the Supreme Court to issue a second ruling undercutting him.
Biden’s original student loan plan — which was always a legal long-shot — was grounded in the Higher Education Relief Opportunities For Students (HEROES) Act, a 2003 law allowing the Education Secretary to “waive or modify” federal student loan provisions during a “war or other military operation or national emergency.”
“Past waivers and modifications issued under the Act have been extremely modest and narrow in scope,” Chief Justice John Roberts noted in his majority opinion overturning Biden’s plan to cancel up to $20,000 in federal student loan debt for about 43 million Americans. “The Secretary has never previously claimed powers of this magnitude under the HEROES Act,” Roberts added.
Roberts also took issue with Biden’s invocation of Covid as the “national emergency” rationale behind the move — as the chief justice noted, Biden declared that “the pandemic is over” shortly after moving to cancel student debt.
Biden’s new plan uses a different law to achieve its goal: the Higher Education Act of 1965, which empowers the Education Secretary to “compromise, waive, or release any right, title, claim, lien, or demand, however acquired, including any equity or any right of redemption.”
How are the two proposals different? For one thing, the new plan has nothing to do with a national emergency, so that particular argument will no longer play a role in the litigation.
However, because its use wasn’t intended for an emergency, Biden’s new student loan plan will have to go through the full regulatory process, something his first plan didn’t have to do. Although the administration quickly moved to initiate the rulemaking process for the plan on Friday, it will take months to finish. (The difference in speed is one reason why the White House decided not to use the Higher Education Act in the first place, even though it is the legal justification that progressive lawmakers urged him to cite originally.)
It is unclear precisely how far Biden’s new plan will go: the president said it would provide relief to “as many borrowers in possible,” but he has yet to offer specifics on the contours of the replacement proposal. Roberts’ opinion last week specifically mentions the Higher Education Act, writing that it “authorizes the Secretary to cancel or reduce loans, but only in certain limited circumstances and to a particular extent.” Biden’s new plan will likely have to be more limited in scope than his first if it has any chance of fitting Roberts’ description.
Still, the replacement will face the same fundamental problem: it does not appear that a majority of Supreme Court justices believe the president has the power to cancel federal student loan debt without a specific act of Congress authorizing him to do so. In his opinion, Roberts cited the “major questions doctrine,” a principle the court has (controversially) been using recently to hold that Congress — not the president — should be legislating on “major questions” of political and legal significance under our constitutional schema.
Roberts wrote that Biden’s student loans plan is a prime example of “the Executive seizing the power of the Legislature”; although it is unclear how extensive Biden’s new plan will be, if it is as anywhere as far-reaching as the first, it would be unsurprising if the court feels the same way again.
So don’t count on Biden’s second student loan plan to survive either, although there are still a lot of details that need to be cleared up before we can say for sure. But the fact that the president is even trying, despite the legal uncertainty, suggests a notable evolution on Biden’s part in the last year.
Both abortion and student loan relief are issues Biden has expressed discomfort with in the past. “I’m not big on abortion,” he said himself last week. As recently as 2021, he also didn’t believe it was constitutional for him to unilaterally cancel student loan debt: “I don’t think I have the authority to do it by signing the pen,” he said at a CNN town hall.
In 2024, Biden will likely put aside those discomforts and place both abortion and student loans at the center of his re-election campaign, in an effort to mollify progressives who he’ll need to turn out to vote. With Democrats largely unenthused about him seeking a second term, Biden will have to zag left on some issues to motivate progressives, even as he tries to moderate himself on others.
Another issue where Biden has been trying to alleviate tensions between him and his liberal base lately: the Supreme Court itself. The president was once hesitant to directly criticize the justices, another split that caused progressive angst after Dobbs.
In a familiar pattern, Biden is still not prepared to go quite as far activists on his left: he reiterated his opposition to expanding the court last week. But his rhetoric about the court has grown noticeably sharper this week, suggesting a change from even the Biden of one year ago.
Last Thursday, as he walked away from the podium after announcing his affirmative action response, Biden was asked by a reporter if the Supreme Court had gone “rogue.” The president stopped and turned around. “This is not a normal court,” he said.
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POLITICS PLANNER
President Biden is at Camp David, the presidential retreat in Maryland. He has nothing on his public schedule.
Vice President Harris is in Los Angeles. She has nothing on her public schedule.
The Senate is on recess until July 10.
The House is on recess until July 11.
The Supreme Court is on recess until October 2.
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