Biden’s cancel student debt plan hinges on two court cases that start this month

The Supreme Court is hearing two forgiveness-related cases. The first, Nebraska v. Biden, was brought by six conservative state attorneys general that say the Biden administration is overstepping its authority. The second was brought by a conservative advocacy group for two individuals: one who does not qualify for the forgiveness plan, and one who does not qualify for $20,000 in forgiveness.

The Biden administration says they have authority to implement the programs under the HEROES Act of 2003, which allows the Secretary of Education—currently, Miguel Cardona—to institute changes to the student loan program in times of national emergency (in this case, the COVID-19 pandemic). Specifically, it allows him to “waive or modify” provisions related to student financial assistance programs, such as repayment terms.

The White House argues that canceling the debt will ensure that borrowers do not wind up worse off financially post-pandemic when federal student loan payments, which have been paused for almost three years, resume.

“Ending that pause without providing some additional relief for lower-income borrowers would cause delinquency and default rates to spike above pre-pandemic levels,” the U.S. Department of Justice wrote in a brief filed last month. Two dozen legal scholars filed an amicus brief with the Supreme Court last month supporting the Biden administration’s legal standing.

What the court will decide is whether the COVID-19 emergency is appropriate rationale for widespread relief, says Vaishali Rao, partner at Hinshaw & Culbertson. Rao represents servicers, debt collectors, and lenders, and has also investigated student loan origination, servicing, and debt collection practices.

“The HEROES Act language is pretty clear that the government has the authority” to cancel the debt, says Rao. “Does it make sense for the circumstances, or is there something narrower that could be done?”

Many borrowers were already unable to afford their student loan debt before the pandemic, a problem that will only continue, says Rao. This forgiveness could set a precedent for future action by the government.

Biden’s plan, which he announced last year, would forgive up to $10,000 in federal debt for borrowers earning under $125,000 per year, and up to $20,000 for those who received Pell Grants while in school. When applications for the one-time forgiveness opened, about 26 million people applied before they were shut down.

What should borrowers do?

For now, all student loan borrowers can do it wait. And with a 6-3 conservative majority Supreme Court, it’s best to be practical. If you can swing it, make payments on your debt while interest is not being levied. Once payments resume, interest accrual will as well.

“It’s better to be conservative and think this might lose, and then have money to make the payments,” says Rao. “And then if the government does win, it’s an added bonus. I worry about people not having a financial plan because they’re counting on forgiveness.”

If you’re struggling and won’t be able to make payments when the federal pause ends, it never hurts to contact your student loan servicer—the company that bills you each month—and see if they can help you work out a repayment plan.

Rao also advises borrowers to “get to know” their debt. Do you have federal loans, private, or a mixture? Only federal loans qualify for forgiveness.

Additionally, make sure to take advantage of Public Service Loan forgiveness, Borrower Defense to Repayment, and other targeted relief programs if you can. These are all separate from Biden’s one-time plan and will still be in place even if the Supreme Court rules against Biden’s proposal.

Oral arguments are set for Feb. 28, 2023. More than 26 million Americans applied for the one-time student debt relief, according to the Biden administration.

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