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The Supreme Court at its best

The justices did the right thing in restraining government overreach

The U.S. Supreme Court building Associated Press/Photo by Jacquelyn Martin

The Supreme Court at its best
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In a pair of important cases at the end of its term, the Supreme Court reaffirmed America’s fundamental commitment to limited governmental powers. In one of the most enduring insights of the constitutional era, the Founders not only secured to We the People certain inalienable rights, they separated government powers in order to preserve those rights from government overreach. In 303 Creative and Nebraska v. Biden, the Supreme Court was at its best, exercising its responsibility to keep the government in check. In 303 Creative, the court held that the government may not compel people to say messages they don’t believe. And in the student loan case, it reaffirmed the foundational constitutional precept that the executive branch has the limited power to enforce the law, not write it.

In 303 Creative, the State of Colorado claimed the power to force website designer Lorie Smith to create government-preferred messages with which she disagreed. Lorie gladly serves everyone from all walks of life, including her LGBT clients. She simply declines to create certain messages–such as messages that denigrate other people, dishonor veterans, or celebrate sexual sin. In a win for all Americans, the Supreme Court held that the government does not possess the power to tell people what to say or not say. While the government may rightly prohibit the denial of goods or services based on a protected characteristic, it cannot force an individual to profess a belief he or she does not hold.

As the Supreme Court explained, “the freedom to think and speak is among our inalienable human rights.” The First Amendment’s protection of free speech “envisions the United States as a rich and complex place where all persons are free to think and speak as they wish, not as the government demands.”

It is hard to overstate the importance of 303 Creative. Colorado did not only claim the power to force Lorie to speak its preferred message, but its argument would also let officials force LGBT designers to create messages with which they would disagree. This authority would render the American freedom project largely illusory. The bedrock principle that undergirds all of our rights is the right to think and speak freely. Every American, regardless of political ideology or views on marriage, benefits by the Supreme Court’s recognition that the government may not prescribe orthodoxy. It may not tell people what to think or say.

In Biden v. Nebraska, the student loan case, the Supreme Court upheld another crucial check on government excess. In a breathtaking assertion of executive power, President Joe Biden claimed the unilateral authority to cancel hundreds of billions of dollars in student loan debt.

The Constitution clearly vests Congress—and Congress alone—with the power to create law.

Yet the Constitution clearly vests Congress—and Congress alone—with the power to create law. Article I states: “All legislative powers herein granted shall be vested in a Congress.” The president’s job is to execute the law, not to make it. And indeed, early in his tenure, President Biden publicly suggested that Congress would have to act in order to cancel student loan debt. Speaker Pelosi was even more clear: At a press briefing when she was speaker, Pelosi admitted that the president “can’t” cancel student loan debt. “That’s not even a discussion.”

As the Supreme Court explained, Congress never took action to cancel student loan debt. The Biden administration pointed to the HEROES Act as justification. But that statute, enacted after 9/11, only allows the secretary of education to “waive or modify” loan terms, “not to rewrite that statute from the ground up.” It does not allow the president and his administration to act unilaterally and forgive nearly half a trillion dollars in student loan debt. Further, the court noted that it would have expected Congress “to speak clearly before a Department Secretary can unilaterally alter large sections of the American economy.”

Nor could the government’s action be justified on the basis of an emergency. Not only has the COVID-19 pandemic officially ended according to the administration, but the program includes all but 5 percent of the top earners, and there is no requirement that borrowers show they are in a worse position vis-a-vis their student loans because of the pandemic. As the majority explained, such an expansive view of emergency authority would “grant unlimited power” to an executive agency.

At the end of the day, the question in the student loan case was not whether something should be done regarding student debt, but as the Supreme Court explained, “who has the authority to do it.” While the dissent in the case accused the majority of substituting its views for the representative branches, Congress never approved the policy at issue. Lest one wonder what Congress really thinks about Biden’s student loan program: it passed a bill repealing it. In an ironic twist, Biden vetoed the congressional legislation repealing his executive action all while claiming that Congress had approved that action.

It is in times like these that the Supreme Court is at its best, preserving individual liberties from the government impulse to aggrandize power.

Erin Hawley

Erin Hawley is a wife, mom of three, senior counsel at Alliance Defending Freedom, and a law professor at Regent University School of Law.

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