(The Hill) – Millions of student loan borrowers find themselves on tenterhooks, waiting to see if they will actually get the relief proposed by President Biden as challenges to his debt forgiveness plan work their way through the courts.
The Biden administration opened up student loan forgiveness applications last month and was planning to start applying the relief this month, but those actions came to a halt after the U.S. Court of Appeals for the 8th Circuit temporarily blocked the measure.
Of the multiple court cases across the country, a challenge from six GOP-led states is the only one that has been successful so far in stopping the program, at least for now.
The administration is planning to forgive up to $10,000 in federal student loans for borrowers making less than $125,000 annually and up to $20,000 for Pell Grant recipients. But the 8th Circuit issued an order two weeks ago to prevent relief from being distributed while it considers arguments over whether the states have standing to sue over the plan.
A federal district judge previously ruled that the six Republican attorneys general who sued do not have standing because they could not demonstrate that Biden’s program directly harmed their states.
The 8th Circuit ended up pausing the relief program to give time for both parties to submit their briefings before making a full ruling on if the forgiveness should be paused until the whole case is settled.
Abby Shafroth, director of National Consumer Law Center’s Student Loan Borrower Assistance Project, told The Hill borrowers will “have a decision” from the 8th Circuit soon since those briefings have been submitted.
Legal experts said the court’s determination on whether the states have standing could be key to whether the administration will be allowed to provide relief in the next couple of weeks or months from now, if at all.
Michael Sant’Ambrogio, a law professor and senior associate dean for faculty and academic affairs at Michigan State University, said a ruling on the states’ motion for a preliminary injunction should happen soon, but litigation is “rarely quick” if the full case goes to trial.
“If they grant the preliminary injunction, I would say all bets are off,” he said.
Biden said in an interview with Nexstar’s Reshad Hudson last week that he expected relief to be disbursed within two weeks, but experts said that is only possible if the injunction is denied.
Sant’Ambrogio said the Supreme Court has increasingly cut back on the power of the executive branch to take action without clear direction from Congress, and the states’ challenge could succeed based on the argument that Congress never expressly approved broad forgiveness.
“This is a very bold move by the administration, and there are certainly some questions given how the Supreme Court has been interpreting the power of the executive and federal agencies,” Sant’Ambrogio said.
While Shafroth acknowledged court cases can go on for a long time, she doesn’t expect the challenges against student debt relief to last for too long or for the courts to halt the program while they decide.
She said it is “unusual for courts to order a party to do or not do something before they’ve decided a case.”
“Normally, a judge would have to find the government was breaking the law before ordering them to stop,” Shafroth said.
The six states that sued –– Arkansas, Iowa, Kansas, Missouri, Nebraska, and South Carolina –– pointed to multiple failed congressional attempts to cancel debt in recent years in their complaint as evidence of a lack of congressional authorization for the administration’s action.
If the appeals court decides the states have standing and grants the preliminary injunction, their briefs on the merits of the case would not be due until mid-December. The government would then have 30 days to respond, and the states would have 21 additional days to respond to that rebuttal, which would almost certainly cause the case to go into next year.
A COVID-19 pandemic-era pause on borrowers making payments on their loans is set to end on Dec. 31, but the Biden administration could seek to extend it again. The administration had been urging borrowers to request relief by mid-November to ensure they receive it in time for the pause to end.
“It’s hard for me to imagine this being wrapped up in less than at least a month. It could potentially be two or three months before the injunction is finally lifted,” said Thomas Bennett, an associate professor of law at the University of Missouri. “And of course, if appeals courts agreed with the states that they have standing, then it could be much longer.”
He said either side could appeal an eventual 8th Circuit ruling to the Supreme Court on an expedited basis, adding that the high court may be more likely to take it if the federal government loses at the appeals court level.
He said the Supreme Court may also be more likely to take up cases that challenge the program if multiple appeals courts issue different rulings on the constitutionality of the program.
Shafroth pointed out the Supreme Court has already rejected getting involved in one case regarding the debt relief program, Brown County Taxpayers Association v. Biden, and she didn’t expect them to get involved in Garrison v. Department of Education — a prediction that proved correct on Friday when Justice Amy Coney Barrett denied an emergency effort to block the forgiveness program in the Garrison case.
“It remains to be seen if any of the other cases will go up to the Supreme Court,” Shafroth said.
Bennett, in response to Biden’s prediction, said, “It’s not likely that there would be any actual loan forgiveness in the next two weeks.”
“But in the next four weeks, in the next six weeks, I think it just becomes increasingly plausible if they’re able to win,” he added, referring to the administration.
Although Shafroth said it is hard to put an exact timeline on when this could get solved in the courts, she said she does not expect a long timeframe for decisions.
“The parties are very clearly, on both sides, interested in resolving these cases quickly so they’re agreeing to fast briefing schedules. The courts are also recognizing the high importance of these cases and resolving them quickly,” she said.
“I think, hopefully, we should have everything resolved fairly soon,” Shafroth said.