WASHINGTON — After rewriting Title IX regulations to include protections for gender identity, President Joe Biden told trans students: “We see you.” When he announced in April his latest executive actions to waive student loan debt, he proudly proclaimed that “this relief can be life-changing.”
And standing in front of a group of immigrant advocates in June, Biden boasted that he had used the power of his presidency to provide a new path to legal status for undocumented spouses of U.S. citizens — ending fear and uncertainty for a half-million people.
“We can fix that,” Biden said. “And that’s what I’m going to do today: fix it.”
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In all three cases — and a long list of other executive actions — Biden’s promises of progress and relief have been stymied by aggressive legal challenges led by conservative activists, lawmakers and Republican state attorneys general. Their efforts to disrupt the president’s agenda have often been bolstered by federal judges, appellate courts and, in some cases, the majority of conservative justices on the Supreme Court.
The president’s use of executive orders was supposed to have been the solution to a closely divided and paralyzed Congress, especially as the 2024 race got underway. Of his six signature bills that Biden signed into law during his presidency, none came after December 2022.
But as Biden nears the end of his presidency, the effort to bypass Congress with regulatory changes, executive orders and presidential memorandums has faltered. That outcome is likely to affect Biden’s legacy and could make it more difficult for Vice President Kamala Harris to point to progress as she campaigns for the White House this fall.
In many cases, the courts have temporarily blocked Biden’s programs pending legal challenges that could take years to resolve. In some instances — like the president’s original plan to provide nearly $400 billion in student debt relief — the Supreme Court has declared the programs unconstitutional, forcing the Biden administration back to the drawing board.
Student Debt
On Wednesday, the court’s justices decided to keep a block on key parts of the Biden administration’s Saving on a Valuable Education, or SAVE, plan, one major attempt by Biden to provide debt relief for students. The justices left in place a ruling by the U.S. Court of Appeals for the 8th Circuit, which had prevented the SAVE plan from going into effect after challenges from Republican state officials.
Under the SAVE plan, people with federal undergraduate or graduate loans could apply for forgiveness based on factors such as income and family size. Millions enrolled in the program saw their monthly payments reduced, and about 400,000 borrowers got some amount of their student debt canceled.
Conservative critics argue that Congress has not authorized the president or his advisers to cancel debt that is owed to the government by millions of people who borrowed money to go to school.
In their legal brief to the Supreme Court, Republican officials said the Biden administration rule “asserts an unprecedented statutory interpretation that would give the secretary of education unfettered power to cancel every penny of every federal student loan.”
They noted: “Every judge to join or issue an opinion about the final rule has declared it unlawful.”
Millions of people enrolled in the program are now in financial limbo as the courts decide whether the challengers are right that the president’s effort to ease financial burdens on borrowers is a taxpayer-funded giveaway that violates federal laws.
“Republicans and far-right Supreme Court justices are doing everything possible to harm our borrowers and obstruct the student debt cancellation they demand and deserve,” said Rep. Ayanna S. Pressley, D-Mass., in a statement Thursday.
“We won’t stop pressing to cancel student debt and deliver the essential, lifesaving relief that borrowers were promised,” she said.
Immigration
Courts have also halted key parts of the president’s immigration agenda following a barrage of legal challenges from conservative, anti-immigration activists and officials.
On his first day in office, Biden proposed sweeping legislation aimed at overhauling the nation’s immigration system, cracking down on illegal border crossings, and providing a path to citizenship for many people already in the country without proper documentation. Congress ignored the proposal, and failed to reach deals on other efforts.
Instead, the president issued a series of immigration executive actions, and lawsuits led by Republican states halted many of them. Courts stopped a temporary deportation ban from going into place; for a time blocked arrest priorities for deportation officers; forced the government to temporarily bring back a policy to keep migrants in Mexico during their asylum claims; and stopped a planned wind-down of a Trump-era policy allowing migrants to be deported quickly for a year.
“Republican-led states have been fairly successful in interfering with the administration’s immigration policies,” said Ahilan Arulanantham, co-director of the Center for Immigration Law and Policy at the University of California, Los Angeles. He noted that even when conservative challenges have lost at the Supreme Court, the temporary injunctions by lower courts have often succeeded in delaying and disrupting the president’s goals for months or even years.
“They have won intervening rulings that have essentially allowed them to shorten the time that the administration has had to do what it wants,” he said.
On Monday, a federal court judge in Texas put in jeopardy the future of the administration’s program for undocumented spouses, blocking it for at least 14 days after more than a dozen states, led by Texas, moved to stop the effort in its tracks.
The program, called Keeping Families Together, had been hailed by progressive advocates. It was set to help up to 500,000 people in the United States by providing them protection from deportation, a path to a green card and ultimately U.S. citizenship. Thousands of immigrants had submitted requests for protections in the first week of the program’s existence, and the applications are now paused.
Andrea Flores, a former Biden official who is now vice president for immigration policy and campaigns, FWD.us, said lawsuits filed by allies of former President Donald Trump were grinding up Biden’s efforts to alter the immigration system.
“Trump wants to blame Democrats for the broken state of our immigration system, but his team has spent four years filing frivolous lawsuits against almost every attempt Biden has made to fix the system,” she said. “He has made it impossible for the president to govern on this issue.”
In many ways, the court orders resemble a continuation of the Trump era, but in a different direction. Back then, federal courts in California and Washington, D.C., stopped Trump’s restrictive immigration efforts, like a ban on migration from several Muslim-majority countries and asylum restrictions at the southern border, before the Supreme Court revived them.
The group America First Legal, a conservative organization led by the former Trump adviser Stephen Miller, worked with the state of Texas to block the Keeping Families Together Program. He has said the group is “the long-awaited answer to the ACLU,” the civil liberties group that had some success in stopping Trump immigration policies.
“This is a huge victory in our courtroom battle to block the Biden-Harris executive fiat,” Miller said in a statement Monday. He added that his group was “deeply honored” to partner with Republican state attorneys general “to fight this unconstitutional mass amnesty.”
Title IX and Trans Youth
Biden’s efforts on behalf of transgender students have spurred similar opposition from conservatives — and another series of legal challenges.
More than a year ago, at the president’s urging, the Department of Education proposed new rules that would for the first time explicitly clarify that the 1972 sex discrimination law known as Title IX prohibits discrimination based on sexual orientation or gender identity.
That proposal was finalized in April and was due to go into effect across the country in August. But the lawsuits from nearly half of the Republican attorneys general in the country led to court rulings in Kansas, Kentucky and Louisiana preventing the administration from enforcing the rule in some states.
Earlier this month, the Supreme Court allowed the rulings by lower courts to remain in effect in several states as litigation moves forward, maintaining a pause on new federal guidelines that would have, in part, expanded protections for transgender students. A patchwork of lower court decisions means that the rules are paused in about 26 states.
“It is disappointing that the Supreme Court has allowed far-right forces to stop the implementation of critical civil rights protections for youth,” said Cathryn Oakley, senior director of legal policy for the Human Rights Campaign, after the ruling.
In a statement this week, Janae Stracke, vice president of outreach and advocacy at Heritage Action, a conservative think tank, warned of what she called the dangers if courts allowed the “administration’s illegal rewrite of Title IX and the relentless push to force radical gender ideology in America’s schools.”
The new Education Department rules could eventually go into effect in all of the country’s school systems. But the legal issues are not likely to be resolved before Biden’s term ends early next year.
For Biden and Harris, the timing raises the stakes of November’s election. They have one hope of actually putting into place their programs on gender discrimination, student loans or immigration: a Harris presidency.
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