House Speaker Nancy Pelosi (D-CA) questioned its legality. So did former President Barack Obama’s Council of Economic Advisors chairman. Conservatives uniformly say it is illegal.
So why is a challenge to President Joe Biden’s college loan amnesty unlikely to see the inside of a courtroom?
One word: standing.
“Standing” is a legal term for the body of law governing who can bring a legal claim in court. It is an inherently conservative doctrine designed to limit the judicial power of the federal government. Without a limit on who could assert a legal claim, courts would become, in the words of Justice Byron White, “roving commissions assigned to pass judgment on the validity of the Nation’s laws.”
Nominally, the test for whether a person has standing to assert a claim in court is still governed by the 1992 case Lujan v. Defenders of Wildlife. In that case, the Carter administration first listed some species in Egypt and Sri Lanka on the endangered species list, only to change its mind and delist those species. Defenders of Wildlife sued to keep those species on the list.
Writing for the court, Justice Antonin Scalia enumerated a three-part test to determine if a litigant had sufficient standing to assert a claim in federal court. First, the plaintiff must show an “injury in fact” that is both “actual or imminent,” not “conjectural or hypothetical.” The injury must be specifically suffered by the plaintiff, not commonly suffered by the public. Second, the plaintiff must show “causation,” meaning that the injury mentioned above is “fairly traceable” to the conduct in controversy. Finally, the plaintiff must identify “likelihood of redress,” meaning there must exist an adequate remedy the court could deliver to address the injury caused by the conduct in controversy.
In Lujan, two plaintiffs claimed to have visited Egypt and Sri Lanka, where they each saw crocodiles and elephants listed by the Carter administration as endangered. They also said that while they had no firm plans to return to these countries and see the animals right now, they both wanted to return some day in the future.
Scalia held that these “’some day’ intentions, without any description of concrete plans or indeed even any specification of when the some day will be, do not support a finding of the ‘actual or imminent’ injury that our cases require.”
Other cases have held that taxpayers do not have some generalized standing to challenge federal spending, and neither do members of Congress.
Turning to Biden’s college loan amnesty plan, one could definitely make a case that it will make inflation go up, although a court could find that worry speculative. Inflation also harms the public generally, so no one person would credibly be able to bring a claim.
The best route might be for a college student who is paying tuition now but sees his or her tuition go up next semester to bring the case. The plaintiff would have to establish causation between the school’s tuition hike and the Biden loan amnesty, which would be tough.
The standing doctrine is a limitation on the judicial branch. As presidents do more and more unilaterally through executive action, this limit on judicial power necessarily increases the power of the president. If enough people are truly harmed by Biden’s college loan amnesty, then the best remedy is the ballot box, not a courtroom.
