Standing Requirement Is a Bulwark Against Judicial Overreach

The US Supreme Court had two major questions to answer in the cases challenging the Biden administration’s plan to reduce student debt—and it got both wrong.

The high court considered the right of these plaintiffs to bring the challenge and authority of the Department of Education to implement debt relief. In striking down debt relief, the court signaled a continued path towards an overreaching court at the expense of elected branches of government.

The legal doctrine of “standing” to bring a lawsuit is often thought of as dry and uninteresting to the general public. But standing is in fact a bulwark against judicial overreach.

Under our constitutional system, courts are available only to decide actual disputes, cases, and controversies. Answering abstract questions of policy is the business of elected officials and the citizens who elect them.

Plaintiffs in Department of Education v. Brown were two individuals with student loans who did not qualify for debt relief and the court properly and unanimously dismissed this case.

However, in Biden v. Nebraska, where the plaintiffs were six states, the court stretched to find the kind of direct injury that’s required to establish the right to bring a lawsuit. Only an independent Missouri state agency arguably was harmed by the debt relief plan—an agency that notably chose not to be a part of the lawsuit.

By finding an injured plaintiff where none existed, the court weighed in on an issue that properly belongs with Congress and the executive branch. The court disturbed the political processes of voting and even lobbying that influences public policy.

As articulated by Justice Antonin Scalia, perhaps the leading conservative jurist of the past half-century, “the judicial doctrine of standing is a crucial and inseparable element of [separation of powers] whose disregard will inevitably produce … an over-judicialization of the process of self-governance.”

Moving to the merits of the case, the court continued its project of limiting executive branch powers by adopting a cramped reading of Congressional authorization. Last term, in West Virginia v. EPA, the court adopted a robust “major questions” doctrine under which in extraordinary cases of significant political or economic scope, an agency may not rely on “oblique or elliptical language” to authorize an agency to make a “radical or fundamental change” to a statutory scheme.

But in this instance, there was nothing oblique or elliptical about the delegation to the agency to address student debt, nor was there a radical or fundamental change to the legislation involved.

The administration’s debt relief plan turned on the plain language of the Higher Education Relief Opportunities For Students Act Act of 2003. HEROES was passed by bipartisan majorities in the Congress and signed into law by President George W. Bush.

The statute authorizes the secretary of education to grant waivers or relief to recipients of federal student financial aid programs “in connection with a war or other military operation or national emergency.”

The act allows waiving of statutory or regulatory requirements related to federal student loans for three categories of individuals, one of which is “those who have suffered economic hardship as a result of wars, military operations, or national emergencies.”

Congress could well have chosen to limit HEROES to war-related issues—it did not. Nor did Congress place an end-date in the statute or subsequently repeal it.

Significantly, during the national emergency declared due to the Covid-19 pandemic, the HEROES Act was invoked several times by the Trump and Biden administrations. The act was first invoked to pause student loan payments and interest multiple times, and, in October 2021, to reform a student debt forgiveness program for public workers.

In August 2022, the administration used the act again to announce student debt cancellation of up to $10,000 or, for those eligible for Pell Grants, $20,000.

The court’s invocation of its “major questions doctrine” appears to stem from the price tag on the administration’s program—as much as $430 billion. The amount at stake may qualify this matter as one of a “significant political or economic scope,” permitting the court to be on the lookout for administrative action that relies on “oblique or elliptical language” to authorize an agency.

But where, as here, the administration acted pursuant to clear Congressional authorization, the court should not interfere.

The court has decided a case it had no business taking and, with an unnecessarily limited reading of a Congressional statue, limited the ability of the executive branch to address a significant issue.

Scalia’s caution was apt—we are observing “an over-judicialization of the process of self-governance.”

The case is Biden v. Nebraska, U.S., No. 22-506, decided 6/30/23.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Frederick Lawrence teaches at Georgetown Law, and serves as secretary and CEO of the Phi Beta Kappa Society. He was previously president of Brandeis University and dean of George Washington University Law School.

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