College graduates saddled with student debt not only must cope with tightly constrained budgets; they also need to navigate a convoluted and sometimes capricious loan-repayment bureaucracy. But even they may be taken aback by the audacity of two cases currently pending before the Supreme Court that Republicans and their allies have filed to overturn the Biden administration’s invocation of executive emergency powers to forgive student debt. In seeking to reverse this landmark bid to provide desperately needed income support to college graduates trying to regain their footing in the wake of the Covid-19 pandemic, the plaintiffs are gambling that the Supreme Court’s hyper-conservative super-majority will grant them legal standing despite their tenuous connection to the legal claims they assert.
One of the cases now before the high court is called Biden v. Nebraska, but among the six red-state plaintiffs joining the action, Missouri has the strongest argument for legal standing. Yet even that argument is exceptionally weak. The Missouri Higher Education Loan Authority (MOHELA) is a state-chartered corporation that earns fees by processing student loan payments. Some of the money it earns goes to the state; thus, Missouri argues, less indebtedness for students means reduced fees for MOHELA and in turn less money for the state.
The Biden administration’s brief in the Supreme Court contests Missouri’s standing on the grounds that MOHELA and the state are distinct legal entities. As the brief pithily explains, if “A causes financial harm to B, and B owes money to C,” that does not mean that “C has standing to sue A.” That’s fair, but there’s also a more fundamental objection: MOHELA’s complaint has nothing to do with the case’s underlying contention that Congress did not authorize the debt forgiveness plan. It is like a manufacturer of electric chairs suing a state governor who signed legislation abolishing the death penalty on the grounds that abolition deprived the manufacturer of a lucrative revenue stream. MOHELA and Missouri have chutzpah, not legal standing.
When do parties legitimately have legal standing? In many constitutional democracies, courts can decide abstract questions of law. However, in ostensibly interpreting the Constitution’s Article III—which gives federal courts the power to adjudicate “cases” and “controversies”—the US Supreme Court firmly insists that in order to have legal standing to sue, a litigant must suffer a concrete injury that the legal system can redress. Yet history shows that injury and redressability are very much in the eye of the judicial beholder.
In 1984, the Supreme Court ruled that African American parents lacked standing to challenge the failure of the IRS to revoke the tax-exempt status of whites-only private schools, speculating that even if such exemptions were disallowed, the racial composition of the public schools might not change. In 2013, the justices rejected a challenge to unlawful surveillance by the National Security Agency with a Catch-22 argument: The plaintiffs had not proved that they were secretly surveilled before filing their lawsuit—a tall order, given that the government assiduously concealed the record of such surveillance.
Meanwhile, when plaintiffs bring cases that the conservative justices approve, the standing rules bend. White college applicants complaining about race-based affirmative action need not show that they would have been admitted without the program. In an oral argument late last year, the court registered little apparent concern that a plaintiff seeking a constitutional exemption from a Colorado law forbidding discrimination against gay customers merely planned to launch a wedding website design business.
The second challenge to the debt forgiveness program is Department of Education v. Brown. It features two individual plaintiffs from Texas whose claims to standing are even weaker than those of the states. One plaintiff, Myra Brown, does not qualify for debt forgiveness because her loans are commercially held. The other plaintiff, Alexander Taylor, is eligible for the $10,000 share of debt relief designated for most loan recipients earning less than $125,000 annually but not for the $20,000 that Pell grant recipients can receive.
It’s true that Brown and Taylor’s case offers plausible grounds for a more generous program. The problem is that their legal argument, if successful, would not entitle Brown to any debt forgiveness nor Taylor to additional debt forgiveness. It would instead result in debt forgiveness for no one. That is not judicial redress of an injury; it is more like vindictiveness directed at the beneficiaries of a program that the plaintiffs and the right-wing organizations bankrolling their lawsuit happen not to like. Indeed, vindictiveness disguised as populism is a fair description of the Republican Party’s policy agenda—in the fight over student debt relief and in our political life more broadly.
To be sure, the Biden debt forgiveness program is hardly perfect. It does little to make college more affordable. It arguably should be broadened to include debt holders like Brown and to give Taylor more relief. And it provides no benefits for people who have not been to college but have substantial debts or other economic hardships.
However, those defects mostly reflect the limits of what can be done through purely executive action. The statute the Biden administration cites as authority to forgive student debt delegates power to the secretary of education, who has no jurisdiction to forgive loans unrelated to education. Nor can the administration unilaterally appropriate new funds to defray the cost of college.
Congress, however, has broad authority to legislate to assist Americans in need of a helping hand. It did just that when it passed the CARES Act in March 2020, broadly subsidizing businesses and individuals struggling in the face of the economic hardship that the Covid-19 pandemic brought on. That law included a provision ratifying the suspension of interest payments and accrual on federally held student debt first adopted by the Trump administration using the very same emergency authority that the Biden administration has invoked for the program now before the Supreme Court.
Yet while GOP lawmakers were happy to subsidize borrowers with a Republican in the White House, they are singing a different tune today. Rather than remedying perceived inadequacies in the Biden program by expanding it through new legislation, 128 House Republicans filed an amicus brief in the Supreme Court arguing that the existing program exceeds the scope of authority previously delegated to the secretary of education.
Granted, the motives of the faux-populist Republicans seeking to overturn the debt relief program stink. Nonetheless, might they be right about the law?
The answer to that question could turn on whether applicants for debt forgiveness would be, as the key statutory provision requires, “in a worse position financially” in the absence of such relief. The program’s challengers say no—that now with the job market is booming and the administration on the verge of ending the Covid emergency declarations, there is no need for further suspension of interest payments, much less for permanent debt forgiveness. The Biden administration counters with evidence that serious economic downturns have lasting harmful effects on debtors, including a twenty-fold increase in the risk of delinquency following substantial periods of forbearance.
Meanwhile some liberal-leaning groups, like Protect Democracy, worry that sustaining the debt forgiveness program as an exercise of emergency powers will license the abuse of such powers by future Republican administrations. The concern is legitimate, but misplaced: Nothing the Supreme Court says in the debt forgiveness cases will prevent a Republican president who can get away with asserting emergency powers from doing so.
In any event, each assertion of emergency power should be assessed on its own merits. Here, the statutory delegation of authority to the secretary of Education to “modify” student debt obligations “as the secretary deems necessary” ought to settle the matter: Courts should defer to the Executive Branch’s judgment that limited student debt forgiveness is necessary to mitigate the economic emergency’s lingering impact.
However, the plaintiffs and their supporters who filed amicus briefs cite the “major questions doctrine” as a key rationale for overturning the program. This is a pet principle among the high court justices most hostile to the administrative state; it authorizes courts to reject agency assertions of “extravagant” authority “over the national economy.” And the Roberts court could well accept this line of argument, because it views nearly all regulations as extravagant. Last year, for example, the court invoked the major questions doctrine to invalidate the Occupational Safety and Health Administration’s workplace vaccine mandate as well as the Environmental Protection Agency’s Clean Power Plan.
Of course, there’s nothing remotely extravagant about a program seeking to lift millions of Americans out of debt. The only major question of genuine moment in the debt forgiveness cases is whether a right-wing court will once again champion an ideological antigovernment crusade at the expense of ordinary Americans struggling to make ends meet.