WASHINGTON — After rewriting Title IX regulations to include protections for gender identity, President Joe Biden told trans students, “We see you.” When he announced his latest executive action to cancel student debt in April, he proudly proclaimed that “this relief could be life-changing.”
And standing before a group of immigrant advocates in June, Biden boasted that he had used the power of his presidency to create a new path to legal status for undocumented spouses of U.S. citizens, ending the fear and uncertainty of half a million people.
“We can fix it,” 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 thwarted 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 supported by federal judges, appellate courts and, in some cases, the majority of the conservative justices on the Supreme Court.
The president’s use of executive orders would have been the solution to a narrowly divided and paralyzed Congress, especially as the 2024 race got underway. Of the six bills Biden signed into law during his presidency, none came to fruition after December 2022.
But as Biden nears the end of his presidency, the attempt to bypass Congress with regulatory changes, executive orders and presidential memoranda has failed. That outcome is likely to have ramifications for Biden’s legacy and could make it harder 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. In some cases — such as the president’s original plan to provide nearly $400 billion in student loan relief — the Supreme Court has ruled the programs unconstitutional, forcing the Biden administration back to the drawing board.
Student debt
On Wednesday, the court’s justices decided to put a hold on key parts of the Biden administration’s Savings on a Valuable Education (SAVE) plan, a key effort by Biden to help students get out of debt. The justices let stand a ruling by the U.S. Court of Appeals for the 8th Circuit that had blocked the SAVE plan from taking effect after objections 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 of people who enrolled in the program saw their monthly payments drop, and about 400,000 borrowers had some of their student debt forgiven.
Conservative critics argue that Congress has not given the president or his advisers the authority to forgive the debts of millions of people who borrowed money to go to school.
In their legal brief to the Supreme Court, Republican officials said the Biden administration’s rule “affirms an unprecedented statutory interpretation that would give the Secretary of Education unfettered power to forgive every penny of every federal student loan.”
They noted: “Every judge who has joined or ruled on the final rule has declared it unlawful.”
Millions of people who enrolled in the program now find themselves in financial limbo as the courts decide whether challengers are correct in arguing that the president’s attempt to ease the financial burden on borrowers is a taxpayer-funded giveaway that violates federal law.
“Republicans and far-right Supreme Court justices are doing everything they can to harm our borrowers and block the student debt forgiveness they demand and deserve,” Rep. Ayanna S. Pressley, D-Mass., said in a statement Thursday.
“We will not stop pushing for student debt cancellation and delivering the essential, life-saving relief that borrowers have been promised,” she said.
Immigration
Courts have also halted key parts of the president’s immigration agenda after a flood 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 agreements on other efforts.
Instead, the president issued a series of immigration executive actions, and lawsuits brought by Republican states halted many of them. Courts stayed a temporary ban on deportations; temporarily blocked deportation officers’ arrest priorities; forced the administration to temporarily restore a policy of holding migrants in Mexico while they sought asylum; and halted a planned rollback of a Trump-era policy that allowed migrants to be expedited for a year.
“Republican states have been quite successful at 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 to the Supreme Court have lost, temporary injunctions from lower courts have often succeeded in delaying and disrupting the president’s goals for months or even years.
“They have won interim rulings that have essentially allowed them to shorten the time the government had to do what it wanted,” he said.
On Monday, a federal judge in Texas jeopardized the future of the government’s program for undocumented spouses by blocking it for at least 14 days, after more than a dozen states, led by Texas, moved to end the program.
The program, called Keeping Families Together, was praised by progressive advocates. It would help 500,000 people in the United States by offering them protection from deportation, a path to a green card and eventually U.S. citizenship. Thousands of immigrants filed for protection in the program’s first week, and applications are now paused.
Andrea Flores, a former Biden official who is now vice president of immigration policy and campaigns at FWD.us, said lawsuits filed by allies of former President Donald Trump are undermining Biden’s efforts to change 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 challenging nearly every effort Biden has made to fix the system,” she said. “He has made it impossible for the president to govern at this point.”
In many ways, the injunctions seem like a continuation of the Trump era, albeit in a different direction. At the time, federal courts in California and Washington, D.C., halted Trump’s immigration crackdowns, including bans on migration from several Muslim-majority countries and restrictions on asylum at the southern border, before the Supreme Court revived them.
The group America First Legal, a conservative organization led by 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 rights group that had some success in stopping Trump’s immigration policies.
“This is a huge victory in our courtroom battle to block the Biden-Harris executive fiat,” Miller said in a statement Monday, adding that his group was “deeply honored” to work with Republican state attorneys general “to combat this unconstitutional mass amnesty.”
Title IX and Trans Youth
Biden’s efforts on behalf of transgender students have prompted similar opposition from conservatives, as well as a raft of new legal challenges.
More than a year ago, at the president’s urging, the Education Department proposed new rules that would for the first time explicitly clarify that the 1972 Sex Discrimination Act, known as Title IX, prohibits discrimination on the basis of sexual orientation or gender identity.
That proposal was finalized in April and was set to take effect nationwide in August. But lawsuits from nearly half the nation’s Republican attorneys general led to court rulings in Kansas, Kentucky and Louisiana that blocked the administration from enforcing the rule in some states.
Earlier this month, the Supreme Court allowed lower court rulings in several states to remain in place while the lawsuit proceeded, pausing new federal guidelines that would have expanded protections for transgender students in part. A patchwork of lower court rulings means the rules are on hold in about 26 states.
“It is disappointing that the Supreme Court has allowed far-right forces to block the implementation of crucial civil rights protections for young people,” 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 the courts allowed the government’s “illegal rewriting of Title IX and its relentless drive to impose a radical gender ideology in American schools.”
The Education Department’s new rules could eventually take effect across the nation’s school systems. But the legal issues are unlikely to be resolved before Biden’s term ends early next year.
For Biden and Harris, the timing raises the stakes in the November election. They have one hope for enacting their programs on gender discrimination, student loans or immigration: a Harris presidency.
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