Three years ago, Chief Justice John Roberts wrote a majority opinion blocking the Trump administration from unilaterally rescinding the Deferred Action for Childhood Arrivals, or DACA, program. The manner in which the Trump administration took that particular executive action, Roberts held in Department of Homeland Security v. Regents of the University of California, “was arbitrary and capricious” and exceeded the executive branch’s lawful authority.
The U.S. Supreme Court heard oral arguments yesterday in another far-reaching case about executive power. And unfortunately for the current presidential administration, the chief justice apparently sees a close resemblance between yesterday’s case and his 2020 ruling against former President Donald Trump.
Yesterday’s case was Biden v. Nebraska. At issue is President Joe Biden’s 2022 use of executive authority to cancel up to $10,000 in student loan debt for every borrower who earns less than $125,000 a year while canceling up to $20,000 for every borrower who took out a Pell Grant and earns less than $125,000 a year.
According to “your view,” the chief justice told Solicitor General Elizabeth Prelogar, “the president can act unilaterally” and “there was no role for Congress to play in this either.” Roberts seemed to have a problem with that view. “We take very seriously the idea of separation of powers and that power should be divided to prevent its abuse, and there are many procedural niceties that have to be followed for the same purpose,” he said.
Those comments from Roberts were bad enough from the Biden administration’s point of view. But things soon got worse. “This case reminds me of the one we had a few years ago under a different administration, where the administration tried acting on its own to cancel the Dreamers program, and we blocked that effort,” Roberts said. He hardly needed to add that he himself wrote the opinion against Trump’s executive action.
A few minutes later, the chief justice returned to the big questions about executive power raised by yesterday’s case. “If you’re talking about this in the abstract,” he told the solicitor general, “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.” And if Congress hasn’t “acted on it,” Roberts continued, “then maybe that’s a good lesson to say for the President—or the administrative bureaucracy that maybe that’s not something they should undertake on their own.”
If Roberts really does view Biden v. Nebraska in this light, and if at least four other justices see things the same way, Biden’s student loan cancellation plan is doomed.
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