The law is very explicit that Biden’s student debt relief program is lawful. The Court’s Republican majority is unlikely to care.
On the last day of February, the Supreme Court will consider the fate of President Joe Biden’s student loan forgiveness plan.
The legal issues are straightforward: A federal law known as the Heroes Act explicitly authorizes the program that Biden announced in the summer of 2022, as the Covid-19 pandemic persisted. Under that program, most borrowers who earned less than $125,000 a year during the pandemic will receive $10,000 in student loan forgiveness. Borrowers who received Pell Grants, a program that serves low-income students, may have up to $20,000 in debt forgiven.
And yet, while this program is clearly authorized by a federal law permitting the secretary of education to “waive or modify” many student loan obligations “as the Secretary deems necessary in connection with a war or other military operation or national emergency,” it is unlikely to survive contact with a Supreme Court dominated by Republican appointees.
The Court will hear two cases challenging this loan forgiveness program, Biden v. Nebraska and Department of Education v. Brown.
The reason why at least one of these lawsuits is likely to end badly for student borrowers is something known as the “major questions doctrine,” a legal doctrine that was largely invented by Republicans on the federal judiciary, and which has no grounding in either constitutional text or in the text of any statute.
In theory, the major questions doctrine provides that, when a federal agency takes an action of “vast ‘economic and political significance,’” it must be authorized to do so by a federal law that very clearly gives the agency the power to do so. Even under this doctrine, however, there is a strong argument that Biden’s student loan forgiveness program is lawful, because the Heroes Act speaks in clear and expansive terms about the education secretary’s power to waive or modify student loan obligations.
But as Justice Elena Kagan wrote in a 2022 dissenting opinion, the major questions doctrine functions as less as a serious inquiry into Congressional intent, and more like a “get-out-of-text-free” card that allows her colleagues to veto federal programs that they wish to invalidate for reasons completely unrelated to what the law actually says.
For this reason, student loan borrowers who were anticipating loan forgiveness should think twice before making any financial decisions that assume this forgiveness will actually happen.
Yes, the program is authorized by a federal statute. But the Court’s GOP-appointed majority has so far invoked the major questions doctrine to strike down at least three Biden administration policies that the Republican Party opposes. And Republicans overwhelmingly oppose this debt forgiveness program.
The student loans forgiveness program is explicitly authorized by an Act of Congress
The Heroes Act was enacted in the wake of the 9/11 attack on the World Trade Center, to ensure that student borrowers who are impacted by a “war or other military operation or national emergency” are “not placed in a worse position financially” because of that emergency.
Although it was initially enacted on a temporary basis in 2003, primarily to benefit victims of the 9/11 attack and military servicemembers who may struggle to pay back their loans if they are called to active duty, Congress made the Heroes Act permanent in 2007. Thus, by making the law permanent, Congress determined that the education secretary should have broad and lasting authority to modify or eliminate student loan obligations in future emergencies.
The Heroes Act does have some important limitations, the most important of which is that the secretary’s power to alter student loan obligations is only triggered when the president declares that a “national emergency” exists, and it only extends to military personnel and other individuals impacted by that emergency. But when such an emergency — like the 9/11 attack or the Covid-19 pandemic — arises, the Heroes Act speaks in sweeping terms about the secretary’s power to alter loan obligations.
Under the statute, “the Secretary is authorized to waive or modify any provision” of the federal laws governing student loans — including the provisions governing borrowers’ obligation to repay their loans, and the provisions governing cancellation of student loans. This power may be exercised “as the Secretary deems necessary in connection with a war or other military operation or national emergency.”
The law also includes several other provisions indicating that Congress wanted the secretary to have a free hand to act when a national emergency arises. Often, for example, when a federal agency wishes to create a new policy, it must undergo a lengthy process known as “notice and comment” before that policy may take effect. But the Heroes Act explicitly permits the education secretary to forego notice and comment when exercising their loan modification and forgiveness powers under the Heroes Act.
The Heroes Act also permits the secretary to forgive loans en masse, rather than requiring the Education Department to individually determine which borrowers are eligible. According to the statute, “the Secretary is not required to exercise the waiver or modification authority under this section on a case-by-case basis.”
And, on top of all of this, the statute explicitly instructs federal courts not to interpret other federal laws to limit the secretary’s authority to alter student loan obligations. The Heroes Act permits the secretary to exercise this authority “notwithstanding any other provision of law, unless enacted with specific reference to” the Heroes Act.
Finally, in case more evidence was needed that Congress specifically intended the secretary of education to have the power to discharge student loans in connection with emergencies like the Covid-19 pandemic, Congress enacted — as part of the 2021 Covid relief law — a provision stating that no one will be taxed on federal student loans that are forgiven between 2021 and 2025. That’s a clear sign that Congress anticipated that the education secretary would exercise their authority to forgive student loans in connection with the Covid pandemic.
Indeed, after this provision passed the Senate, one of its primary champions, Sen. Elizabeth Warren (D-MA) released a statement saying that “this change clears the way for President Biden to use his authority to cancel $50,000 in student debt” (the Biden administration, of course, ultimately decided to only forgive up to $20,000 in student debt).
Given the text of the Heroes Act, as well as the provision governing student loan debt in the 2021 legislation, it is hard to even conceive of an argument rooted in the text of federal law that undercuts Biden’s loan forgiveness program.
The Supreme Court’s Republican majority could nevertheless use its “get-out-of-text-free” card to strike down the debt relief program anyway
The Court plans to hear two lawsuits challenging the student loan forgiveness program: The Nebraska case brought by the red states of Arkansas, Iowa, Kansas, Missouri, Nebraska, and South Carolina; and the Brown case brought by two private individuals.
There is a chance that this Court will dismiss the case because none of these parties have “standing” to bring these lawsuits — to bring a federal case challenging a government policy, a plaintiff must show they were injured in some way by that policy, and it is unclear how anyone is injured if someone else has their debt reduced.
That said, if these two cases are dismissed for lack of standing, that will likely only delay a showdown over the loan forgiveness program. Eventually the program’s opponents are likely to find some institution — perhaps a company that is paid to service student loans — that will be hurt financially by this program and that is willing to file a lawsuit.
Turning to the merits of the two cases, the Brown case borders on frivolousness, and is unlikely to prevail even in this Supreme Court. Its plaintiffs’ primary argument is that the Biden administration erred by failing to complete the notice and comment process before this loan forgiveness program took effect. But, because the Heroes Act explicitly exempts the secretary’s loan forgiveness authority from the notice and comment process, this argument is wholly without merit. It deserves no further discussion.
The Nebraska case, by contrast, has a good chance of prevailing if the Court decides to apply the “major questions doctrine” here. As the Court has described this doctrine, Congress must “speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’” Again, the Heroes Act speaks in expansive terms about the secretary’s power to forgive student loans, but the Court has never fully explained just how clearly a statute must be written to survive review under the major questions doctrine. So the justices could potentially deem to Heroes Act to be insufficiently clear and strike down the loan forgiveness program.
This doctrine, which was invented by the justices themselves, is not mentioned in the Constitution or in any federal statute, and the Court has never tried to claim that it is authorized by any particular law. To the contrary, at a recent appearance at Notre Dame Law School, Justice Brett Kavanaugh — a supporter of the doctrine — claimed that it is “rooted in constitutional values, and also our understanding of how Congress operates.”
Moreover, even a quick look at the Court’s cases applying this judicially-invented doctrine reveals that the Court typically applies the doctrine in a haphazard and unprincipled way, often targeting programs that the Republican Party (or the Court’s Republican appointees) do not like.
On the same day in January of 2022, for example, the Court handed down two decisions concerning Biden administration rules that required certain workers to either receive a Covid vaccine or take regular tests for the disease. In the first of these decisions, National Federation of Independent Business v. Department of Labor, the Court struck down a broad rule that applied to about “84 million Americans.”
Such a rule, a majority of the justices fairly reasonably concluded, involved matters of “vast economic and political significance.”
Yet in the second case, Biden v. Missouri, the Court upheld a vaccination mandate that applied to about 10 million health care workers. The Court made no effort to explain why a rule that impacts 84 million people triggers the major questions doctrine, but a rule that impacts only 10 million people does not. Nor did it explain what would happen if the Biden administration pushed out a vaccination rule that applied to, say, 20 million people. Or 50 million people. Or 83,999,999 people.
Six months later, the Court handed down its decision in West Virginia v. Environmental Protection Agency (2022), which stripped the EPA of much of its authority to fight climate change.
West Virginia involved the Obama administration’s Clean Power Plan, a 2015 policy that set emissions reduction targets that the energy industry was supposed to hit by 2030. But this Clean Power Plan proved to be a nothingburger. It never took effect — the Supreme Court voted along party lines to suspend it in 2016. And, because the dirtiest methods of energy production also are more expensive than cleaner methods, the energy industry wound up meeting the Obama administration’s 2030 goals in 2019 for purely business-related reasons. So it is likely that nothing significant would have changed if the Clean Power Plan had gone into effect.
And yet, in West Virginia, the Supreme Court determined that this irrelevant regulation involved matters of such vast economic or political significance that it must be struck down under the major questions doctrine.
The major questions doctrine, in other words, has no real substance. It largely functions as an excuse that the Court’s GOP-appointed majority can use to toss out agency actions that they do not like.
And so the fate of Biden’s loan forgiveness program will turn on whether at least two Republicans on the Supreme Court decide that they like a controversial program enacted by a Democratic administration. Maybe that will happen, but I wouldn’t bet on it.
The number of people without health insurance just hit a new low — but the expiration of a pandemic policy could erase those gains.
Perhaps the greatest success of the American health care system these last few benighted years is this surprising fact: The uninsured rate has reached a historic low of about 8 percent.
That’s thanks in part to the pandemic — or, more precisely, the slew of emergency provisions that the government enacted in response to the Covid crisis.
One policy was likely the single largest factor. Over the past three years, under an emergency pandemic measure, states have stopped double-checking if people who are enrolled in Medicaid are still eligible for its coverage. If you were enrolled in Medicaid in March 2020, or if you became eligible at any point during the pandemic, you have remained eligible the entire time no matter what, even if your income later went up.
But in April, that will end — states will be re-checking every Medicaid enrollee’s eligibility, an enormous administrative undertaking that will put health insurance coverage for millions of Americans at risk.
The Biden administration estimates upward of 15 million people — one-sixth of the roughly 90 million Americans currently receiving Medicaid benefits — could lose coverage, a finding that independent analysts pretty much agree with. Those are coverage losses tantamount to a major economic downturn: By comparison, from 2007 to 2009, amid the worst economic downturn of most Americans’ lifetimes, an estimated 9 million Americans lost their insurance.
Some will lose coverage because they are no longer eligible due to a change in income or circumstance, such as a child turning 18. States are supposed to direct these people toward other insurance options, such as the Affordable Care Act marketplaces.
But many of the people who end up losing their benefits — even most, according to some projections — could be people who are actually still eligible for Medicaid but slip between the cracks of the system. People who have recently moved are one particular concern, as are children and people with disabilities.
For people who watch health policy closely, the coming “redetermination” process is one of the biggest stories of the year, with major ramifications for Americans’ health.
A lot of people are going to lose coverage no matter what. That is inevitable. The emergency “continuous coverage” provision, which cost nearly $150 billion over the past three years, was never going to be indefinite. The US health system is not set up to provide that many people, some of whom are no longer eligible for the program, with indefinite health benefits, unless they are old enough to qualify for Medicare.
But the goal, according to people who advise and advocate for people on Medicaid in states across the country, should be to minimize the number of Americans who lose their Medicaid benefits even if they are still eligible for them, and to make sure that the people who no longer qualify for Medicaid get other coverage.
Don’t let too many people fall through the cracks. Otherwise, the coverage gains of the past few years could be quickly eroded.
“If people lose Medicaid, whether they’re ineligible or remain eligible for Medicaid, and they’re not connected with another form of insurance, that’s potentially devastating for individuals,” Emma Morris, a policy analyst at the Oklahoma Policy Institute, told me. “This is a really pivotal point.”
This year’s coverage losses could be particularly dramatic. But they’re also a symptom of a bigger, more persistent problem that predated the pandemic: People cycle on and off Medicaid coverage all the time, including for reasons as mundane as paperwork. It’s a problem that, historically, many states have shown little interest in solving, and one that is now reemerging with a vengeance.
The end of Medicaid emergency continuous coverage, explained
The task in front of public officials is enormous: check the eligibility of every single one of the 90 million people currently on Medicaid to confirm they still meet the criteria for their benefits. And if they don’t happen to reach someone because that person moved, or they think a notice from the state is junk mail? That person will find themselves out of luck — and out of Medicaid.
Preventing that worst-case scenario will depend on states getting the word out early and often and using all of the tools available to them to reach people. Whether they will actually do that is already creating some concern. Congress has given states up to 12 months to complete the redetermination process. But in Texas, where as many as 1 million people may lose coverage, state officials have said they want to finish it in eight months, for reasons that are not clear.
“That raises a concern of trying to do this fairly complex job in a shortened timeline and the risk that might lead to adverse redetermination outcomes for people that that still are entitled to being in Medicaid,” Jason Terk, a physician and chair of the Texas Public Health Coalition, said.
In an ideal scenario, many beneficiaries won’t have to do anything to affirm their Medicaid eligibility. States can check existing data sources to verify a person’s income. If they are still eligible, they will keep their benefits. If they are not, the state should let them know what their insurance options are. (We’ll come back to that.)
The problem is these automatic checks are something a lot of states were terrible at doing prior to the pandemic. Almost all states say they conduct what are known as ex parte renewals, meaning they use existing public data to verify people’s eligibility without the person having to do anything. Ex parte renewals were supposed to be mandatory under the Affordable Care Act. But, according to Jen Wagner at the Center on Budget and Policy Priorities, enforcement has been lax: A few states don’t do them at all, and 20 of them said they completed less than half of their renewals this way. Some states, including Texas, have decided not to adopt policies that make ex parte renewals easier, such as assuming people who are eligible for SNAP, or food stamps, are also eligible for Medicaid.
Now states’ ability to perform those tasks is crucial. Most states say their redetermination plans start with ex parte renewals, which will test the effectiveness of their databases and IT systems. And many Medicaid offices are beginning this process understaffed: One in five jobs posted at state Medicaid offices were unfilled, according to the National Association of Medicaid Directors. In some states, nearly half of the jobs, more than 40 percent, were unfilled.
“We’re seeing states struggling right now to keep up now, when you’re not doing renewals,” Wagner said.
The first way states are trying to minimize risk is by starting the process with certain groups of people who may be at less risk if they lose coverage, such as those who have never filed a claim while enrolled in Medicaid; for those recipients, the possibility of disrupting medical care seems lower. In states like Oklahoma, Missouri, North Carolina, and Florida, where I interviewed patient advocates and state Medicaid officials to get a better sense of states’ preparation, the plan was usually to save more vulnerable populations — older people, people with disabilities, and children — for the later phases.
For people whose eligibility cannot be confirmed via a public database, states will have to do it manually. That will mean sending out mail and other forms of communication to ask beneficiaries to send in information so their eligibility can be verified.
That can be a difficult task. People move, some frequently. They ignore mail. They may not know this is happening in the first place. Most states allow people to report eligibility details or change their contact info on their websites or over the phone, but not all do — and those services, such as a call center, have to be adequately staffed. Otherwise, problems can arise and people may give up rather than put up with a hassle.
In Florida and Texas, two states worth watching closely given their large size and right-leaning politics, Republican leaders have not appeared very engaged on the issue, even as doctors and activists in those states credit the state health agencies with taking it seriously.
“The political leadership is not particularly enamored with or concerned about necessarily enhancing Medicaid policy here in the state of Texas,” Terk said. “I would hope, and I would try to be optimistic, that the governor’s office would be more forceful in his messaging. … It would be helpful if that were to happen. But I’m not sure that it’s reasonable to expect that.”
There are myriad ways administrative friction leads to people losing benefits when they shouldn’t. States have to be invested in preventing it. In states like Missouri and Oklahoma, top elected officials have been actively fighting against the implementation of Medicaid expansion, which made many low-income adults newly eligible for the program; now many of the people who became eligible through the expansion in the past few years will have their eligibility checked for the first time. Policy analysts worry some of those people could lose coverage simply because they aren’t familiar with the process.
Another way people could lose coverage in the coming months is if they are legitimately no longer eligible for Medicaid but fail to get enrolled in a different insurance plan.
States could make a big difference in preventing that, by directing people to the ACA marketplaces (where they may qualify for government assistance) and the navigators who receive federal funding to help people sort their marketplace options and sign up.
Medicaid offices across the country have been planning for this for months. But it’s not clear some states are doing everything they can on to make sure people who are no longer eligible are enrolled in a new health plan In Florida’s redetermination plan, for example, the actual mechanisms for directing people to their other coverage options are left vague and navigators are not mentioned at all.
“A lot of these plans sound excellent. The question is, what do they look like in implementation?” Alison Yager, executive director of Florida Health Justice, told me. “There are invariably going to be challenges. This is too huge for there not to be challenges.”
According to the Georgetown Center for Children and Families, nine states have not even posted their public plan for this Medicaid unwinding. A similar number have not shared any kind of communications toolkit, which could be useful to the advocates and providers who will be on the front lines of educating people about the situation. (Here is an example from the state of Texas.)
Some people may have no viable option for coverage at all, if they’ve had a change in circumstance that renders them ineligible (such as a child turning 18) but they live in a state that hasn’t expanded Medicaid under the ACA nor do they have a high enough income to qualify for subsidies to purchase private insurance.
Florida is one of those non-expansion states. One family there, who shared their story with Florida Health Justice, has three members who all need regular monitoring and check-ups because of complex medical conditions. They were supposed to lose their Medicaid coverage in 2020, when their son turned 18, but that was postponed through the continuous coverage provision. When that policy ends, they may become uninsured because Florida has not expanded Medicaid under the ACA.
It all adds up to a dramatic and sudden US health policy problem that has laid dormant for the past three years: churn.
The problem of Medicaid churn remains
It is an absurdity of the American health system, compared to those of other developed countries, that millions of vulnerable people could end up becoming uninsured in a matter of months. But even in normal times, because of how our health system is set up, people with low incomes shift frequently between different insurance coverage, going from Medicaid to ACA insurance subsidized by the federal government or not having any insurance at all.
It’s called “churn,” and it has long been recognized as a problem. In 2018, about 10 percent of Medicaid enrollees cycled on and off the program within a year.
Sometimes, people can simply have a few months where they pick up extra work hours, boosting their income to the point they are no longer eligible, and they lose coverage. (Eligibility checks vary across states in normal times.) The next month, their earnings may drop back down, making them eligible once again — but then they have to sign back up.
It adds to the workload for those understaffed Medicaid offices and it can disrupt health care for the patients too. People don’t fill prescriptions when they have to pay more money out of pocket. They skip doctor’s appointments and other vital services.
Now, after the three-year pause on redeterminations eliminated that problem, the end of the emergency coverage will bring it back.
States could be doing more to prevent Medicaid churn — but, at least so far, they’re not. The low rate of ex parte renewals that automatically confirm eligibility was one way the US was coming up short pre-pandemic.
States are also not taking advantage of other optional policies that the federal government has made available. A state can, for example, extend coverage for a woman who becomes eligible during pregnancy through their first year after her child is born. Only three states have actually done so, according to the Georgetown Center for Children and Families.
A year of continuous coverage for kids is more common, and states such as Oregon and Washington have even approved multi-year continuous eligibility for children. On the other hand, more than a dozen states have not adopted that policy either and a number of others have conditions that limit their effectiveness.
Congress has recently added some new requirements to address the problem for the longer term, including that all states provide children with 12 months of continuous coverage starting next year. That should help. But it won’t eliminate the problem entirely. It will come back again to how well states perform in checking and re-checking people’s eligibility, now and in the future, and whether they are being held accountable when they fall short.
There has been more sustained interest in the problem of Medicaid churn with the end of the emergency coverage provision approaching. But it remains to be seen how long it will last. A reversion to the pre-pandemic normal would put beneficiaries at a higher risk going forward of losing their coverage than they should. Research has routinely shown people have more access to health care, use more health care, and self-report better health when they are enrolled in Medicaid. That is what people are losing when they lose their benefits.
Churn is inevitable in the multi-payer structure that the US has set up to finance its health care. But we could be handling it better. The massive redetermination process will be an immense test, forcing states to re-check the eligibility of every single beneficiary. But even once it’s over, individual patients will still face the risk of losing coverage when they perhaps should not. The problems churn creates are not going away.
“Churn doesn’t have to be what it is. Unwinding doesn’t have to be a disaster,” Wagner told me.
The stakes for the rest of 2023 are enormous, and Medicaid agencies have not always performed well in the past in making sure everybody who is eligible for Medicaid gets on it. Now, health coverage for millions of Americans hinges on their being able to get it right.
A baby bump, casual dancing, and the superstar’s greatest hits made for a memorable performance.
To love Rihanna, the musical superstar, billionaire beauty mogul, fashion designer, part-time actress, current mother of one and future mother of two, is to be left waiting and wanting. The next single, the next makeup drop, the next outfit: Rihanna is one of the few humans in this overexposed, over-curated world that people simply cannot get enough of.
At Super Bowl LVII, five years since her last live performance (the 2018 Grammys) and seven years since her last album (2016’s Anti), she showed us how easily — maybe too easily — she commands stardom, by way of how great her previous hits have been.
Levitating on a platform high above the field at some weak-in-the-knees feet in the air, Rihanna — draped in red with a matching crimson lip, no doubt some shade of Fenty Beauty — descended upon Arizona’s State Farm Stadium with a command: “Bitch better have my money.” Rihanna is the only billionaire in existence who could ask for more money and not have it be tacky. Rihanna doesn’t need more money, but whatever Rihanna wants, she gets, with millions of fans cheering her on.
For what it’s worth, the NFL famously does not pay its halftime performers, but it does cover production costs, of which there always seems to be no expense spared. This year, multiple platforms were suspended and lowered, lifted, and lowered again and again in synchronization with her run of songs; the set looked like a giant audio equalizer. The direction and camera work were on point, with wide shots capturing the scale and grandeur of the floating stages. Though simple, the visual effect was still larger than life, matching the gravitational pull of Rihanna’s biggest hits.
After her monetary threat, Rihanna eased into a medley of some of her most memorable dance singles. “Where Have You Been” bopped into “Only Girl” which seamlessly slinked into “We Found Love.” Although these comprised the club soundtrack of the last two decades, Rihanna mostly grooved along reservedly, leaving the huffing and puffing to her dancers and most of the aesthetic work to the gigantic set pieces.
To be fair, Rihanna’s reps confirmed she is pregnant with her second child after a speculative social media frenzy (that belly rub did mean something!). It’s also worth noting that Rihanna’s calling card has never been full-throttle dancing. She is a hitmaker; it’s about the sound. Her voice is an engine that can take any song in any genre to the top of the charts. She sings, we dance. That’s how it goes.
If there was a point in the night where the star seemed to be enjoying herself most, it was during the segment where the pace slowed, and she sashayed into “Rude Boy,” “Work,” and “Pour It Up.” With the cameras up close, she cracked a wry smile here and flashed a squint there. A master of face-ography. As she transitioned to her final set of songs, one of the dancers handed her what seemed to be a Fenty compact (internet sleuths deduced it was her brand’s $34 blotting powder) and the makeup entrepreneur dusted her nose and undereyes.
It was time for Rihanna’s closeup.
rihanna’s performance of ‘diamonds’ was amazing pic.twitter.com/Rddfp6scrd
— 2000s (@PopCulture2000s) February 13, 2023