In 2023, the conservative Supreme Court will once again pose a threat to Biden’s agenda.
WASHINGTON (AP) — The conservative-majority Supreme Court will have a significant impact on whether President Joe Biden can complete some of his most ambitious agenda items in 2023, with the justices already preparing to rule on his student loan forgiveness program and efforts to reshape immigration policy.
Midway through Biden’s four-year term, the court has already proven to be a significant impediment to the administration, repeatedly intervening to block policies on issues such as Covid-19 vaccines and immigration while also issuing major rulings that advance conservative causes, most notably the June decision to limit abortion rights by overturning the landmark Roe v. Wade decision.
In 2023, the court, which has a 6-3 majority and is willing to aggressively move the law to the right, is set to rule in a series of similarly headline-grabbing cases before its term ends at the end of June.
The administration’s two most important cases, involving Biden’s student loan forgiveness program and his efforts to repeal Title 42, a Trump-era immigration policy, will be argued in February, with rulings due by the end of June.
Based on oral arguments in October, the conservative justices appear poised to end the use of race in college admissions and to weaken the landmark Voting Rights Act, enacted in 1965 to protect minority voters. Both of these events would be setbacks for the Biden administration.
The court will also rule in a case pitting LGBTQ rights against conservative Christians, as well as an election dispute that could have a significant impact on the presidential election in 2024. In a case that will be heard on February 21, the court will address another contentious issue: the scope of immunity that social media companies have over problematic content posted by users.
In another immigration-related case, the court has yet to rule on the Biden administration’s attempt to put its immigration enforcement priorities into action.
Arguing before such a conservative court is a constant uphill battle for Solicitor General Elizabeth Prelogar, the administration’s top advocate at the court.
“Being the solicitor general for a Democratic president before this court is a little like being a liberal justice. “You know you’re going to be on the losing side most of the time,” said Jessica Levinson, a Loyola Law School professor, and MSNBC columnist.
Prelogar, a Harvard Law School graduate, has worked in the Biden Justice Department since the administration’s inception and was confirmed by the Senate to her current position in October 2021. She clerked for two liberal justices earlier in her career: Elena Kagan and Ruth Bader Ginsburg.
So far, a Justice Department spokesman has declined to comment on Prelogar’s record.
The fight over Biden’s student loan forgiveness plan is likely to be more important to the administration, with the court hearing oral arguments in two cases challenging the policy.
With Republicans poised to take control of the House of Representatives after the midterm elections, the administration will have even less leeway to push its agenda than it did in the previous two years. As a result, the administration may rely on executive actions to enforce policies that do not require explicit congressional authorization.
The student loan forgiveness program, which has already been blocked by lower courts, is seen as an example of unlawful executive branch overreach, according to critics.
Based on how the conservative majority has handled other cases in which the government has been accused of exceeding its authority, the omens are not good for the administration. For this reason, the court in January blocked Biden’s vaccine mandate for large employers. It also prevented the administration from extending an eviction moratorium during the pandemic in August 2021.
Similarly, the administration’s hopes to combat climate change through aggressive curbs on carbon emissions from power plants were dealt a significant setback in June when the Supreme Court imposed new limits on the federal government’s authority to issue broad regulations under the Clean Air Act.
The Title 42 case is a little different in that it was then-President Donald Trump who implemented the plan to quickly deport asylum seekers at the border as a result of the Covid-19 pandemic, and it is now the Biden administration that is working to reverse it. The legal issue is not whether Trump had the authority to enact the policy, but whether Republican state attorneys general can intervene to defend it.
The administration has faced an uphill battle not only in defending its own policy decisions. It has also lost arguments as a friend of the court against dramatic changes in the law on culturally divisive social issues, such as the landmark abortion case decided in June.
In another major ruling issued that month, the government similarly failed to persuade the conservative majority not to expand gun rights. In a series of cases that have lowered the barrier separating church and state, the administration’s arguments against expanding religious rights have also been unsuccessful.
The Biden administration can brag about some hard-won victories. At the same time that the court blocked the vaccine mandate for private employers, it allowed the administration to impose a separate mandate for federally funded healthcare facilities. In June, the court sided with the administration in its efforts to repeal Trump’s “remain in Mexico” immigration policy, which required migrants to remain in Mexico while their asylum claims were processed.
In both cases, the administration received the votes of three liberal justices and two conservative justices: Chief Justice John Roberts and Justice Brett Kavanaugh.
Many cases appear to have no other way to win, according to court observers, with the court’s most conservative justices — Clarence Thomas, Samuel Alito, and Neil Gorsuch — frequently out of reach.
Despite the ideological challenges that Prelogar faces on the bench, “she’s done a fantastic job as an advocate in oral argument, and the briefs I’ve seen have been solid advocacy and consistent with views of mainstream Democratic administrations,” according to John Elwood, a lawyer who argues cases at the court.
“To the extent, she’s having difficulty in argument, it’s primarily because her client’s positions are diametrically opposed to the majority of the Supreme Court,” he added.