Amy Coney Barrett's Unexpected Questions About Student Loan Forgiveness

A Trump-appointed justice on the U.S. Supreme Court was unexpectedly critical in questioning in a case seeking to overturn President Joe Biden's efforts to cancel student loan debt, legal observers said.

On Tuesday, the court took up two cases—Biden v. Nebraska and Department of Education v. Brown—led by six Republican-led states seeking to block the Biden administration's plans to cancel up to $20,000 in student debt for federal borrowers. The President used his executive powers to make the move to appease some factions of the Democratic Party ahead of last year's midterm elections, as he may have struggled to get the plan through Congress.

The states involved in the cases have argued that the plan would have an adverse effect on their tax revenues and, in some cases, state-run student lending agencies like the Missouri Higher Education Loan Authority (MOHELA).

Now a key member of the court's conservative majority many believed would be sympathetic to the plaintiffs appeared, during Tuesday's initial hearing, critical of the agency's case. This has prompted some observers to suggest the nine-person panel could end up voting in favor of Biden's initiative.

While some seemed supportive of the plaintiffs' case in their lines of questioning, conservative Justice Amy Coney Barrett, like her liberal colleagues, appeared to focus more on lines around the federal government's arguments that an agency like MOHELA was a separate entity from the state and therefore stood more at risk of losing revenue than the state.

U.S. Supreme Court Justices Amy Coney Barrett, Brett Kavanaugh and Clarence Thomas. On Tuesday, the court took up a pair of cases led by six Republican-led states seeking to block the Biden administration's plans to cancel up to $20,000 in student debt for federal borrowers. Alex Wong/Win McNamee/Getty Images/Newsweek Photo Illustration

Such an argument, if successful, would present a significant blow to the states' efforts to overturn the program.

MOHELA has tried to separate itself from the case, while government attorneys pushing the case have insisted the authority's problems are, in essence, Missouri's problem. Without the ability to prove that, the case could be thrown out on standing.

"If MOHELA is an arm of the state, why didn't you just strong-arm MOHELA?" Barrett asked the state's attorneys during Tuesday's arguments.

Newsweek reached out to MOHELA for comment.

The question was a surprising rebuke of the policies of the Trump administration which, prior to Biden's inauguration, issued a memo concluding that the Department of Education lacked authority to cancel student loan debt. While that never happened, the memo sought to throw a bureaucratic road block in Biden's way and established a Republican position of opposition ahead of the Biden presidency.

There have been other surprises in the case. Some observers noted that conservative Justice Clarence Thomas once mused about the "crushing" weight of his student debt in his 2007 memoir, saying that a fellow student recommended he declare bankruptcy.

However, others appeared to keep focus on the body of the case: whether Biden was legally permitted to unilaterally cancel student debt without an act of Congress.

In their lawsuit, the states argued that Biden violated federal law when he used his executive power to skirt Congress' authority to implement the policy by using an obscure 2003 law called the Higher Education Relief Opportunities for Students Act, which was originally intended to relieve financial burdens on U.S. veterans amid the war in Iraq.

The administration's justification, the plaintiffs argued, disregards the act's original objectives to implement major policy decisions that they say should legally be in the hands of Congress.

At least one justice on the court seemed to agree.

"In the wake of Congress not authorizing the action, the executive nonetheless doing a massive new program seems problematic," Justice Brett Kavanaugh—like Barrett and Neil Gorsuch, a conservative Trump appointee—said during Tuesday's arguments.

Whether Barrett's defection—should it hold—is enough to overrule the votes of the rest of the six-member conservative majority on the court is, however, another question, some mused.

"It seems like Justice Barrett may well be a *fourth* vote to hold that neither the six red states nor the two private plaintiffs have standing to challenge the Biden student loan debt relief program," Steve Vladeck, a University of Texas law professor specializing in the federal courts, wrote on Twitter. "The multi-billion dollar question is whether there's a fifth. I'm skeptical."

Update 03/01/2023: This story has been updated to provide greater context.