Until recently the story of judicial attacks upon President Biden’s student loan forgiveness plan (which I previously discussed here) has been a tale of frustration for the plaintiffs as no one has been able to demonstrate the “standing” necessary to give federal courts jurisdiction to decide the challenge on the merits. Last week, however, Judge Mark T. Pittman of the United States District Court for the Northern District of Texas issued a ruling in Brown v. U.S. Department of Education in which he found not only that the plaintiffs in that case had standing, but that the loan forgiveness program was unlawful. While there is much merit in the opinion’s discussion of the second point, I am not convinced that Judge Pittman is correct about the first.
Let’s start with some basics. Under the U.S. constitution, federal judicial power is limited to “Cases” and “Controversies.” Federal courts will not give advisory opinions. They have, therefore, developed the requirement that the plaintiff have “standing” in order to bring a case. As the ruling recognizes, the requirement of standing imposes three requirements: “First, there must be a concrete injury in fact that is not conjectural or hypothetical. Second, there must be causation—a fairly traceable connection between a plaintiff’s injury and the complained-of conduct of the defendant. Third, there must be redressability—a likelihood that the requested relief will redress the alleged injury.” [citations omitted]
Until Brown, plaintiffs have foundered on the rock of standing. You see, no one has apparently suffered a concrete injury from the forgiveness of the debt of others and their arguments to establish standing generally appear contrived and, frankly, not a little ludicrous. (One would think that legislators, whose power is, at least arguably, being usurped, or taxpayers, who will certainly be required to cough up more when $400 billion in federal assets are given away, have such an injury, but apparently not.)
The Brown plaintiffs approached it a little differently. Both of them have outstanding student loans and their standing argument is that the program does not provide enough forgiveness. One plaintiff’s loans are owed to a private entity and so not covered by the program while the other did not receive a Pell grant and so is entitled to only $10,000 rather than $20,000 in forgiveness. The standing argument is that they had a procedural right to notice of the program and to comment upon it before it was formally promulgated. Because there was no opportunity for notice and comment, they argue that they have standing to assert their procedural rights so long as they have a concrete interest, here asserted to be a greater forgiveness of their debts.
The problem is that the HEROES Act, which is cited as the source of the executive’s authority to forgive the loans, does not require notice and comment. Therefore, the Brown plaintiffs have not in fact suffered a procedural violation, but the court asserts that it must assume this argument true as part of the standing inquiry.
Much as the issue of whether the President (okay, the secretary of education) has the authority to create the broad-based student loan forgiveness program under the Heroes Act should be amenable to a judicial resolution, I just don’t see how violation of a non-existent procedural right can confer standing. We’ll probably learn what the Court of Appeals thinks in relatively short order.
Jay Bohn
November 17, 2022