Yesterday the Supreme Court issued the last of its merits decisions this term before breaking for the summer. This included two significant victories for the rule of law.
Student-Loan Forgiveness/Major Questions Doctrine
In Biden v. Nebraska, a 6–3 majority of the Court ruled that President Biden’s federal student-loan cancellation exceeded its statutory authority. The loan forgiveness plan amounts to one of the largest federal expenditures in American history, with projected costs of between half a trillion and a trillion dollars, possibly more. It therefore constituted a monumental and lawless power grab. The Constitution’s Appropriations Clause gives Congress, not the president, the power of the purse.
For years, the widespread view of leaders on Capitol Hill from Nancy Pelosi on was that the president did not have the power to broadly forgive these student loans. It is telling that over eighty bills were introduced in the 116th Congress alone addressing loan repayment and forgiveness, but they failed to pass. The president cannot then swoop in and supplant legislative power.
Biden invoked as statutory authority for his plan the HEROES Act. That was a 2003 law passed in the wake of the September 11 terrorist attacks for the purpose of providing support to members of the military. It amounted to a baseless pretext for this power grab. The law was meant to help those directly affected by “a war or other military operation or national emergency”—the “national emergency” language arising in the context of aid to those who were burdened by military deployments. While COVID was clearly a national emergency, using it as a hook to achieve Biden’s unrelated campaign promise of nationwide student loan forgiveness goes well beyond the law. Critically, the power granted to the secretary of education under the statute is to “waive or modify any statutory or regulatory provision applicable to” federal student financial assistance programs, and such waivers or modifications are permitted only “as may be necessary to ensure” that financial aid recipients “are not placed in a worse position financially in relation to that financial assistance because of” the national emergency.
Chief Justice John Roberts’ opinion for the Court examined the operative language and just how far the administration had stretched it: “The Secretary’s plan has ‘modified’ the cited provisions only in the same sense that ‘the French Revolution “modified” the status of the French nobility’—it has abolished them and supplanted them with a new regime entirely.” The administration was claiming “unfettered discretion to cancel student loans.” Similarly, regarding the secretary’s authority to “waive” legal provisions, what he “has actually done is draft a new section of the [Higher] Education Act,” which governs federal financial aid mechanisms, “from scratch by ‘waiving’ provisions root and branch and then filling the empty space with radically new text.” His invocation of the waiver power “does not remotely resemble how it has been used on prior occasions,” and he “does not identify any provision that he is actually waiving.”
The decision adds to the Court’s commendable record in recent years asserting the “major questions doctrine” and requiring clear congressional authorization for executive action where the “history and the breadth” and “economic and political significance” of asserted agency authority provides a “reason to hesitate before concluding that Congress” intended that scope of authority. West Virginia v. EPA, which Roberts cited, had employed this doctrine exactly one year earlier, on the final day of merits decisions from the prior term of the Court. As was the case last year, Justice Elena Kagan wrote the dissent for the three justices in the Court’s liberal bloc (with Ketanji Brown Jackson replacing Stephen Breyer) and argued for open-ended delegation of power to agencies, which supposedly merit extreme deference by virtue of their expertise relative to elected officials and judges.
Fortunately, the Court did not follow the dissenters. Instead, it scored another win for the Constitution and separation of powers. It reaffirmed that only Congress has the authority to legislate and the power of the purse, not the executive branch. And in the future, the executive branch needs to think twice about stretching statutes to try to validate illegitimate executive action.
Biden v. Nebraska was one of two challenges to Biden’s student-loan cancellation plan that the Court entertained yesterday. The Court reached the merits in this case because at least one state suing the administration, Missouri, had a state-controlled loan servicing authority that faced significant potential financial harm from loan forgiveness, which translates into harm to the state and therefore standing. In the other case, Department of Education v. Brown, a unanimous Court found no standing for two individual borrowers who did not qualify under the loan forgiveness plan.
Compelled Speech/Freedom of Conscience
Another widely anticipated decision was handed down yesterday in 303 Creative LLC v. Elenis, where a 6–3 majority held that a graphic designer, Lorie Smith, who embraces the traditional definition of marriage as a function of religious belief cannot be compelled under Colorado’s Anti-Discrimination Act to create a website for a same-sex wedding. The justices had agreed to review Smith’s First Amendment free speech claim, but not her free exercise claim. While the case entailed a similar fact pattern to that in Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018), where a cake artist successfully challenged an enforcement action under the same Colorado law, the earlier case was decided under the Free Exercise Clause.
In 303 Creative, Justice Gorsuch’s majority opinion commendably expands the principle that the Court recognized in Masterpiece Cakeshop—that those who embrace the traditional definition of marriage as a matter of religious belief cannot be forced to use their creative talents for same-sex weddings. Colorado’s Anti-Discrimination Act was employed as a vehicle of coercion, and the Court reaffirmed a fundamental principle in American constitutional law—the right to not be compelled to speak under the First Amendment. Gorsuch applied to Smith a longstanding line of precedents that prohibit compelled speech and viewpoint discrimination. West Virginia Board of Education v. Barnette (1943) held that public school students could not be compelled to salute the flag. Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston (1995) stopped Massachusetts from using its public accommodations law to force veterans organizing the St. Patrick’s Day Parade to include among the marchers a gay, lesbian, and bisexual group. In Boy Scouts of America v. Dale (2000), the Boy Scouts’ right of expressive association was found to preclude the use of New Jersey’s public accommodations law to compel the Boy Scouts to readmit a gay assistant scoutmaster. Colorado clearly ran afoul of First Amendment principles in its treatment of Smith.
A long dissent by Justice Sonia Sotomayor sided with Colorado and charged that the Court “for the first time in its history” was “grant[ing] a business open to the public a constitutional right to refuse to serve members of a protected class.” The dissenters attempted to identify the Court’s position with that of opponents of the civil rights movement who opposed public accommodations laws that protected against discrimination by race or sex. Behind this demagoguery, however, was the dissent’s refusal to factor in stipulations in the case that Smith was in fact engaged in expressive conduct and that she was willing to “work with all people regardless of . . . sexual orientation.” Gorsuch exposed the devastating consequences of accepting Colorado’s imperious attempts to compel speech:
Taken seriously, that principle would allow the government to force all manner of artists, speechwriters, and others whose services involve speech to speak what they do not believe on pain of penalty. The government could require “an unwilling Muslim movie director to make a film with a Zionist message,” or “an atheist muralist to accept a commission celebrating Evangelical zeal,” so long as they would make films or murals for other members of the public with different messages. Equally, the government could force a male website designer married to another man to design websites for an organization that advocates against same-sex marriage. Countless other creative professionals, too, could be forced to choose between remaining silent, producing speech that violates their beliefs, or speaking their minds and incurring sanctions for doing so. As our precedents recognize, the First Amendment tolerates none of that. [citations omitted]
The decision in 303 Creative broadens the Supreme Court’s recognition of First Amendment principles that protect the freedom of conscience. It also extends its line of victories in recent years protecting religious freedom and expression, a fitting conclusion to the Court’s work this past term.