Charles Rex Arbogast/AP Photo
Justice Antonin Scalia in 2011
This story is part of the Prospect’s series on how the next president can make progress without new legislation. Read all of our Day One Agenda articles here.
An Education Department memo released this week, asserting that the agency has no authority to cancel student debt on its own, purports to be written by Reed Rubinstein, the principal deputy general counsel. But authorship could also be reasonably claimed by a man who has been dead for close to five years.
Former archconservative Supreme Court Justice Antonin Scalia wrote six of the opinions cited in the memo, and co-authored a scholarly paper cited in the text. Scalia also concurred with the opinions in five other cases mentioned in the document. The only citations quoted at length in the memo either came from Scalia’s hand or sprung from an opinion he joined. It’s fair to say that Antonin Scalia, from the grave, wrote this analysis.
The Rubinstein/Scalia memo was obviously designed as a preemptive strike as the Trump administration comes to a close. For several years now, scholars and advocates have argued that the Education Department has all the discretion it needs through a provision of the Higher Education Act known as “compromise and settlement” authority to stop collection, reduce the amount owed, or forgive entirely the student loans of millions of borrowers.
The Education Department, in fact, has already used one of these authorities in the past year. During the pandemic, the agency unilaterally paused payments on student loans without accruing any additional interest. The CARES Act and the recent COVID relief bill also paused student loan payments, but off and on the Education Department has done it on their own. The Rubinstein/Scalia memo does some backflips to claim that the department did have the authority to pause payments but not to cancel them, even though it springs from the same statutory source.
The incoming Biden administration has been under pressure to cancel substantially all of the $1.6 trillion in federally held student debt, not only from advocates but incoming Senate Majority Leader Chuck Schumer. By fashioning a legal opinion right before the end of the Trump administration that student debt cancellation is illegal, conservative opponents now have ammunition to argue that the Biden team cannot act unilaterally.
Unfortunately for them, the memo is not binding and bears the signature of a political appointee, not to mention the shadow signature of the right’s favorite legal scholar. It’s not surprising that Scalia turns up so much in a legal memo about statutory interpretation. But it does suggest that this is a political document designed for a political advantage, rather than a dispassionate analysis.
Right off the bat, the memo states that federal dollars can only be spent “according to the letter of the difficult judgments reached by Congress.” (Nobody mention Trump’s diverting of congressional appropriations to pay for his border wall.) That quote comes from Office of Personnel Management v. Richmond (1990), an opinion Scalia joined.
It goes on to state that the Higher Education Act must be interpreted narrowly, citing FDA v. Brown & Williamson Tobacco, another Scalia-joined opinion. It then quotes Scalia directly from a book he co-authored entitled Reading Law: The Interpretation of Legal Texts, which is mostly a restatement of his belief in divining all legal force from the original text (a concept known as “originalism”). Five other citations in this section follow, all from Scalia-joined opinions, with two written by Scalia: Rake v. Wade and Kungys v. United States, which contains the “cardinal rule of statutory interpretation that no provision should be construed to be entirely redundant.”
The general takeaway here is that the memo gets its entire frame for how to interpret statutory law from Antonin Scalia, among the most conservative legal minds of the past half-century.
The memo then uplifts a doctrine invented by Scalia known as “elephants in mouseholes.” The idea here is that Congress would not delegate significant authority to the executive branch by smuggling it offhandedly into text; it “does not … hide elephants in mouseholes.” The Prospect anticipated an “elephants in mouseholes” argument in discussing attempted legal roadblocks to executive action in the Day One Agenda.
This clever bit of mind reading is of course the polar opposite of Scalia’s presumed fidelity to the statutory text. Apparently we’re now supposed to believe that congressional text matters unless the policy involved is very important, because Congress simply wouldn’t do that. To buttress this, the memo also cites Whitman v. American Trucking Associations, another Scalia-written opinion.
While the memo admits that Congress did, in fact, grant the ability to “enforce, pay, compromise, waive, or release” federal student loans, it uses another Scalia-authored opinion to contradict that. In RadLAX Gateway Hotel v. Amalgamated Bank, Scalia argued away general grants of authority to the executive branch by saying that more specific provisions should take precedence. The memo quotes Scalia at length here, and cites a similar quote in Morales v. Trans World Airlines. This is again a pretty novel interpretation for a Supreme Court justice who repeatedly insisted that only the statutory text matters. And again, this same administration used the same exact power to provide broad pauses on student loan payments, without any concern for Scalia’s utterances.
A memo like this with a patina of authority could be just what Biden needs to stiff-arm activists on student debt cancellation.
Nevertheless, a memo like this with a patina of authority—despite all of it coming from a deeply conservative, dead Supreme Court justice—could be just what Biden needs to stiff-arm activists on student debt cancellation. Biden has supported wiping out $10,000 in student debt from individuals, but only through an act of Congress, saying that he finds the legal argument for executive action “pretty questionable.” In fact, Biden is attempting the same double game as Trump: He’s agreed to extend the pause of student loan payments using executive authority, but refuses to cancel payments with that same authority.
If Biden succumbs to outside pressure and engages in unilateral debt cancellation, the courts would decide the matter, but only if there’s anyone with standing to sue. The main affected party for student debt cancellation is the student borrower, and she would be unlikely to have a problem with it.
Reid Rubinstein, Scalia’s co-author of the memo, is well positioned to lead a conservative assault on a policy that would provide mass relief for millions of people. A corporate lawyer, Rubinstein previously served as a senior counsel at the U.S. Chamber of Commerce, as well as a counsel for Cause of Action, a nonprofit that promotes “limited government” and files amicus briefs in practically every hot-button Supreme Court case.
