I commented on the oral argument held by the Supreme Court in Biden v. Nebraska in “Giving it away” earlier this week. It’s an important case. The Biden administration should go down in flames in it. Based on the oral argument, I thought Missouri’s alleged standing in the case deriving directly or indirectly from the state’s student loan administrator (MOHELA) is tenuous. If a majority of the Court reaches the merits of the case, however, I indicated that the Court would draw on its “major questions doctrine” to rule against the Biden power grab.
Arguing on behalf of the Biden administration, Solicitor General Elizabeth Prelogar sought to distinguish the massive student loan giveaway from the scope of the major questions doctrine articulated by the Court. Prelogar asserted several times that the doctrine “shouldn’t apply…to benefits programs” insofar as such programs don’t impose any “corresponding cost to individual liberty interests.”
In my comments I should expressly have observed the threadbare quality of this argument. To adapt the quote attributed to the late Illinois Senator Everett Dirksen, a trillion here, a trillion there, and pretty soon you’re talking about “a cost to individual liberty interests.” That is my view of the case before the Court.
What about the issue of standing? I asked Steve Hayward’s 3WHH colleague, former Supreme Court law clerk, and Berkeley Law Professor John Yoo for his thoughts on the issue. Professor Yoo responded:
I think the Solicitor General is quite wrong on the legal aspect of standing, but her arguments on the facts are better. I would bet that the Court finds standing to exist, however.
The SG’s legal argument is that the Missouri higher ed loan authority is insufficient to create standing as the plaintiff because it is a corporation. I do not think that is a bar to standing. If that were true, then Amtrak would not be able to bring suit as an arm of the federal government. It would be too easy for the government to simply label agencies as “corporations” and then use that to escape liability too. I am pretty sure that the Court has rejected such claims before; there is a case — Lebron v. National Railroad Passenger Corporation — that holds Amtrak subject to the First Amendment.
The factual claim is more difficult for standing. One claim is that since the authority did not choose to sue, but the state of Missouri did instead, that the real plaintiffs here who have suffered the harm are not actually in court. But I think that is a matter of state law (whether the state AG and governor can choose to prosecute the rights of a state-owned corporation) on which the US Supreme Court must accept the interpretation of the state — in this case, the governor and AG, unless there is a state supreme court decision that overrules them somewhere.
The SG’s better argument is that any harms to the Missouri agency are speculative. This, of course, is always a problem with standing. I saw that the state claimed that the agency would lose 40 percent of its funding if the Biden loan forgiveness program goes into effect. A court could hold a short hearing on whether this is true. The Biden administration certainly believes this is not factually correct. Often, with standing, the courts will just accept the facts as true in the pleadings, especially when they come from a state.
It reminds me of the finding that states could challenge aspects of the Obama Dreamers regulations because they claimed that they would have to issue drivers’ licenses to illegal aliens, even though the costs were slight and there had yet to be any numbers on how many would have to be issued. To me, if the Court is willing to find standing there, it is hard to deny it here. But it is a very close question.
I still expect the Court to find standing given how easy it is to satisfy the requirement under past precedent, even though often the injury in fact is tenuous if not ephemeral. Sorry I couldn’t be more definitive, but I hope that helps!
I should add that the six conservative members of the Court did not seem particularly troubled by the issue of standing. Professor Yoo’s comments may suggest why.
Notice: All comments are subject to moderation. Our comments are intended to be a forum for civil discourse bearing on the subject under discussion. Commenters who stray beyond the bounds of civility or employ what we deem gratuitous vulgarity in a comment — including, but not limited to, “s***,” “f***,” “a*******,” or one of their many variants — will be banned without further notice in the sole discretion of the site moderator.