Earlier this year, the Supreme Court heard oral arguments in two cases that will determine whether President Joe Biden’s plan to forgive student loan debt will go forward. Despite arguments from the left, it’s clear that the president lacks the authority to unilaterally cancel almost a half trillion dollars in debt.
Under our constitutional system, the president can only issue rules having enormous economic and political consequences when Congress has expressly authorized him to do so. This “major questions doctrine” ensures separation of powers and preserves the legislative authority of Congress. Because Congress never expressly authorized the student loan forgiveness plan, the president acted improperly, and the plan should be declared invalid.
To no one’s surprise, Justices Ketanji Brown Jackson, Elena Kagan, and Sonia Sotomayor were skeptical of the states’ claims of standing. Missouri believes that it has enough ties to its Education Loan Authority (MOHELA) to argue that a decrease in revenue to MOHELA would injure the state because it would mean less money for financial aid. And this triggered Kagan to simply ask, why hadn’t MOHELA brought the challenge? Particularly concerning were questions posed by Justice Amy Coney Barrett, who also jumped on the issue—if MOHELA was a state entity, then why hadn’t Missouri “strong-armed” it into challenging the plan and avoided any question on standing?
These four also cast doubt on standing for the private individuals who have challenged the plan. According to them, even if the plan were declared invalid, how would such a decision remedy the private individuals’ claims that their types of loans should have also been forgiven? The Supreme Court doesn’t have the power to rewrite the plan or order the Department of Education to include private loan holders—only the power to declare the entire program invalid.
If one of the other five justices agrees that the states and the private individuals don’t have standing, then questions of whether the plan violates the major questions doctrine won’t have to be answered. The plan would be left intact.
But that outcome wouldn’t be a complete loss for conservatives. Knowing that he lacks the votes to declare the plan invalid, the chief justice could assert his authority and draft a controlling opinion that limits the power of states and private entities to assert standing.
This could benefit conservatives (and the country) in the future by curtailing the ability of the left to use its enormous legal resources to advance its agenda via the courts. California wouldn’t have carte blanche to launch specious challenges to every action by a Republican president. Massachusetts couldn’t launch a challenge under the Clean Air Act to spur climate regulation. And the Sierra Club couldn’t assert that its members suffered a cognizable injury because their views of nature were spoiled by the construction of a border wall.
A decision upholding the plan because the challengers haven't established standing may turn out to be a short-term loss for conservatives because the Court will have failed to stop a shameful abuse of presidential authority. But it may turn out to be a long-term win because the decision can begin to curtail the broad standing jurisprudence that has allowed the left to advance its agenda through the courts.
We’ll just have to wait a few weeks to find out.