The Supreme Court flashed its ideological high beams during more than three hours of oral arguments over President Biden’s plan to wipe away an estimated $400 billion in student loans, setting up the spectacle of justices riven over the extent of the power of the chief executive’s pen when it comes to spending money. 

Three hours of oral argument suggest not only that the issues in the case are of towering importance but that that loan forgiveness, frozen by lower courts, faces an uphill climb before a right-leaning bench. The two cases are Biden v. Nebraska and Department of Education v. Brown.

The cases turn on whether the Heroes Act, which grants the government power to waive “any statutory or regulatory provision” during times of “a war or other military operation or national emergency.” The president argues that Covid was such an emergency. A clutch of Republican state attorneys general disagree. 

There were some surprises. Justice Amy Coney Barrett challenged those attorneys general over their reliance on a non-state actor — the Missouri Higher Education Loan Authority —  for standing but brought the challenge themselves. “If Mohela is an arm of the state,” she asked, “why didn’t you just strong-arm Mohela and say you’ve got to pursue this suit?”

That line was pursued even more pointedly by Justice Elena Kagan, who mused that  “usually, we don’t allow one person to step into another’s shoes and say, ‘I think that that person suffered harm,’ even if the harm is very great. So why isn’t Mohela responsible for deciding whether to bring this suit?” 

Justice Sonia Sotomayor indulged in evocations of human pathos rather than high-octane hermeneutics, noting that “there’s 50 million students who are — who will benefit from this. Who today will struggle. Many of them don’t have assets sufficient to bail them out after the pandemic. They don’t have friends or families or others who can help them make these payments.”

Justice Samuel Alito likewise moved beyond the procedural, wondering of the forgiveness program “why was it fair to the people who didn’t get arguably comparable relief” and speculating that  “their interests were outweighed by the interests of those who were benefited or they were somehow less deserving of solicitude.”

Justice Sotomayor retorted by noting the “inherent unfairness in society because we’re not a society of unlimited resources” and observing that the “bottom-line answer” is that “everybody suffered in the pandemic” but that “different people got different benefits because they qualified under different programs.”

Chief Justice Roberts marked the designs of the Framers, telling the solicitor general, Elizabeth Prelogar, that the case “presents extraordinarily serious important issues about the role of Congress” and that “we take very seriously the idea of separation of powers and that power should be divided to prevent its abuse.”

The government is fighting to defend the scheme in the shadow of EPA v. West Virginia, decided last year. That case reasserted the vitality of the major questions doctrine, which maintains that when an agency decides on an issue of  national significance, its action must be underwritten by clear congressional authorization.

In her opening statement Ms. Prelogar prophylactically sought to ward off the argument that the doctrine is fatal to Mr. Biden’s cancellation by fiat. She argued that to “apply the major questions doctrine to override that clear text would deny borrowers critical relief that Congress authorized and the Secretary deemed essential.”

The chief appeared unpersuaded, citing “most casual observers” to note that “if you’re going to give up that much amount of money, if you’re going to affect the obligations of that many Americans on a subject that’s of great controversy, they would think that’s something for Congress to act on.”