The conservative Supreme Court once again looms as a threat to Biden’s 2023 agenda

WASHINGTON — The conservative-majority Supreme Court will have a big say in whether President Joe Biden can achieve some of the most ambitious items on his agenda in 2023, and justices are already preparing to rule on his loan forgiveness program. students and efforts to reform immigration policy.

Halfway through Biden’s four-year term, the court has already been a significant impediment to the administration, repeatedly intervening to block policies on issues like Covid-19 vaccines and immigration, while also issuing major rulings promoting conservative causes, especially June. decision to restrict the right to abortion by reversing the landmark Roe v. Wade.

In 2023, there is likely to be more of the same with the court, which has a 6-3 majority willing to aggressively move the law to the right, ready to rule on a series of similar cases that will grab headlines before his mandate. ends at the end of June.

The administration’s two biggest cases, about Biden’s student loan forgiveness program and his effort to kill off a Trump-era immigration policy called Title 42, will be heard in February with rulings due by the end of June. .

Based on oral arguments in October, conservative justices also appear poised to end consideration of race in college admissions and could further weaken the landmark Voting Rights Act, enacted in 1965 to protect minority voters. Both would be setbacks for the Biden administration.

The court will also rule on a case pitting LGBTQ rights against conservative Christians and on an election dispute that could have a big impact on the 2024 presidential election. In a case set to be heard on February 21, the court will address another divisive issue: the extent of immunity 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 implement its immigration enforcement priorities.

For Attorney General Elizabeth Prelogar, the administration’s leading advocate in court, arguing before such a conservative court is a constant uphill battle.

“Being the attorney general for a Democratic president before this court is a bit like being a liberal judge. You know he’s going to be on the losing side most of the time,” said Jessica Levinson, a professor at Loyola Law School in Los Angeles and a columnist for MSNBC.

A graduate of Harvard Law School, Prelogar has worked in Biden’s Justice Department since the start of the administration and was confirmed in her current position by the Senate in October 2021. Early in her career, she worked for two liberal judges : Elena Kagan and Ruth. Bader Ginsburg.

A Justice Department spokesman declined to comment on Prelogar’s track record thus far.

No case is likely to be more important to the administration than the fight over Biden’s student loan forgiveness plan, with the court hearing oral arguments in two cases challenging the policy.

With Republicans poised to control the House of Representatives after the midterms, the administration has even less leeway to enact its agenda than in the previous two years. As a result, the administration may become more reliant on executive actions that seek to enforce policies without explicit authorization from Congress.

The challengers say the student loan forgiveness program, which has already been blocked by lower courts, is a blatant example of illegal executive overreach.

The omens do not bode well for the administration based on how the conservative majority has handled other cases in which the government was accused of exceeding its authority. In January, the court blocked Biden’s vaccine mandate for big employers for that very reason. In August 2021, he also stopped the administration from extending an eviction moratorium during the pandemic.

Similarly, the administration’s hopes of tackling climate change through aggressive restrictions on carbon emissions from power plants suffered a significant setback in June when the court placed new limits on the federal government’s authority to issue sweeping regulations. under the Clean Air Act.

The Title 42 case is slightly different, as it was then-President Donald Trump who implemented the plan to expeditiously remove asylum seekers at the border as a result of the Covid-19 pandemic and the Biden administration moving to dismantle it. The legal question is not whether Trump had the power to implement the policy, but whether Republican attorneys general can intervene in the case to defend him.

It’s not just in defense of its own policy decisions that the administration has faced an uphill battle. He, too, has been on the losing side arguing as a friend of the court against dramatic changes to the law on culturally divisive social issues, including the seismic abortion case decided in June.

The government also failed to convince the conservative majority not to extend gun rights in another major ruling issued that month. The administration’s arguments against the expansion of religious rights have also been unsuccessful in a number of cases who have lowered the barrier that separates church and state.

The Biden administration can point to some hard-fought victories. At the same time that the court blocked the vaccination mandate for private employers, it allowed the administration to enforce a separate mandate for health care facilities that receive federal funding. In June, the court backed the administration in its efforts to end Trump’s “remain in Mexico” immigration policy that required migrants to remain in Mexico while asylum claims are processed.

In both cases, the administration was able to win the votes of all three liberal justices and two of the six conservatives: Chief Justice John Roberts and Justice Brett Kavanaugh.

That appears to be the only path to victory in many cases, court observers note, with the court’s most conservative justices Clarence Thomas, Samuel Alito and Neil Gorsuch often out of reach.

Given the ideological headwinds that Prelogar faces on the bench, “she’s done a terrific job as an advocate in oral argument, and the briefs I’ve seen have been a strong defense consistent with the views of major Democratic administrations.” said John Elwood, a lawyer who argues cases in court.

“To the extent that you are having difficulty arguing, it is primarily because your client’s positions are at odds with the majority of the Supreme Court,” he added.