The Biden administration’s plan to forgive student loan debt for 43 million Americans was met with skepticism by conservative Supreme Court justices Tuesday, although there were some glimmers of hope for the program’s survival.

The Supreme Court, in which conservatives hold a 6-3 advantage, heard oral arguments in two cases challenging Biden’s plan to erase $10,000 in federal student debt forgiveness to those with incomes of less than $125,000, or households earning less than $250,000. Pell Grant recipients, who come from low-income families, would be eligible for an additional $10,000 in relief.

One lawsuit was filed by six Republican-led states, the other by two student loan borrowers in Texas — one who is ineligible for forgiveness entirely and one who is ineligible for the full $20,000. The courts have blocked implementation of the program until the Supreme Court rules.

The justices must first weigh whether the plaintiffs have the legal standing — which requires proof they would be financially harmed by the program — and then rule on whether the action last year by Education Secretary Miguel Cardona, which bypassed Congress, is legal.

The Biden administration says it is well within its rights to implement the program based on the Higher Education Relief Opportunities for Students Act of 2003, commonly known as the HEROES Act. The law allows the education secretary to modify or waive loan provisions during a national emergency — in this case the COVID-19 pandemic.

“The secretary's interpretation of this text is not just a plausible reading; it's the best reading,” U.S. Solicitor General Elizabeth Prelogar, who defended the administration’s program, told the justices. “ … Loan forgiveness is a paradigmatic form of debt relief, and the secretary acted within the heartland of his authority.”

Citing multiple times the program’s estimated $400 billion price tag over the next three decades, conservative justices asked Prelogar why the “major questions doctrine” — the judicial principle that the courts should not defer to agency statutory interpretations on matters of “vast economic or political significance” — should not apply. She said it would “override that clear text” and “would deny borrowers critical relief that Congress authorized and the secretary deemed essential.”

The justices debated the HEROES Act language stating the education secretary “may waive or modify any statutory or regulatory provision applicable to the student financial aid programs under” the section of the Higher Education Act of 1965 that address loan and grant programs.

Chief Justice John Roberts, one of the conservative jurists, said he believed the phrasing “suggests a much more focused use of the word” “waive.”

Nebraska Solicitor General James Campbell, arguing on behalf of the six states, insisted Cardona’s action did not modify or waive existing loan provisions, but created a new program. 

Justice Sonia Sotomayor, who was nominated by former President Barack Obama, however, said she found the HEROES Act language to be clear in stating that an education secretary could alter or discard existing provisions and add new ones in lieu of the old ones. 

“We deal with congressional statutes every day that are really confusing,” she said. “This one is not.”

Justice Brett Kavanaugh, who was nominated by former President Donald Trump, said he thought it seemed “problematic” to create a “massive new program” without congressional approval. But he acknowledged Congress used “that extremely broad word ‘waive’” in the HEROES Act.

Prelogar said it was “perfectly logical” that Congress intended to grant broad powers to an executive to provide benefits during an emergency such as COVID-19.

The Biden administration also argued that the plaintiffs in both lawsuits lacked the legal standing to file them. In the case of the Republican-led states, the argument hinged on Missouri, which contends the Missouri Higher Education Loan Authority, or MOHELA, a nonprofit entity that services federal loans, might suffer financial losses if the program is allowed to proceed.

Prelogar argued the MOHELA is not an arm of the state government. She said the state is not legally liable for the entity and therefore should not be able to sue and claim financial injuries on its behalf. MOHELA had the option to challenge the student loan forgiveness program on its own but had not done so, Prelogar said.

That argument seemed to find a sympathetic ear with conservative Justice Amy Coney Barrett. She said, “It does seem that Missouri has created the separateness with respect to the liabilities of MOHELA” and later asked Campbell, “Do you want to address why MOHELA is not here?”

“MOHELA’s not here because the state's asserting its interest,” Campbell said.

Kagan interjected that the state needed to file a public records request to obtain documents from MOHELA for the case, suggesting the nonprofit was a reluctant party in the lawsuit.

In the second lawsuit, the two borrowers, Myra Brown and Alexander Taylor, contend the Biden administration failed to follow proper procedures by not giving the public an an opportunity to comment before the rule was implemented. They argue they have standing because if the debt forgiveness program were struck down, the Biden administration could pursue another plan that might benefit them more. 

“There was a $400 billion debt forgiveness program that was created, and the respondents have debts and they're not being forgiven,” their attorney, J. Michael Connolly said. “And if it had gone through the proper process, negotiated rulemaking, a notice-and-comment, we could have argued that you are debt should be forgiven, too.”

Prelogar said the HEROES Act does not expressly require a notice period.

The court’s three liberal judges, as well as Roberts, expressed skepticism about Connolly’s standing claim because it was based on speculation.

“The problem with standing jurisprudence … it's also very academic,” Roberts said. “One dollar of injury, and you're in. Hundreds of millions that they can't trace directly to the agency action, and you’re not.”

Added Justice Ketanji Brown Jackson, who was nominated by Biden last year: “I think you kind of have to convince us that the administration would have provided this sort of debt relief under the authority you point to.”

Sotomayor went further, saying she found it “totally illogical” that Connolly was challenging a program that, if he’s successful, could potentially result in one of his clients who could receive $10,000 in debt relief getting nothing.

The conservative justices also questioned whether the program was fair. Roberts suggested two high school graduates, both unable to afford college, could take different paths — one taking out student loans, the other starting a lawn care service. 

“We know statistically that the person with the college degree is going to do significantly financially better over the course of life than the person without, and then along comes the government and tells that person, ‘You don't have to pay your loan,’” Robert said. “Nobody's telling the person who was trying to set up the lawn service business that he doesn't have to pay his loan.”

In response, Sotomayor argued, “Different people got different benefits [during the pandemic] because they qualified under different programs.” And Kagan said Cardona lacked the authority to consider financial relief outside the student loan program.

The Supreme Court’s decision is expected before the end of June.