The attention given to the recent decision in Biden v. Nebraska rests fundamentally on political differences that have become increasingly stark, and that will no doubt continue to be the source of much disagreement. At its core, the question asked is primarily one of the wisdom of a policy decision made by a President, grafted onto a congressional statute granting him emergency powers, and then decided by the Court on what would ordinarily be viewed through the lens of narrow administrative law. The political stakes are high, and as a result the core policy issue that underlies the political debate is left unresolved by the Court’s decision.

On June 30th the Supreme Court of the United States ruled against the Secretary of Education´s use of the Higher Education Relief Opportunities for Students Act of 2003 (HEROES Act) to forgive student loan debts of 430 Billion Dollars on the basis that the Secretary of Education does not having the authority to enact this plan. While the ruling focuses on the Secretary’s authority, the plan itself emerged from a series of political promises made first by Candidate Biden, and later by President Biden to forgive student debt. With congressional opposition to a legislative approach clear, the Administration decided to work through the Department of Education to use the HEROES Act to accomplish administratively what they had been unable to do legislatively.