Editor’s note: Steve Vladeck is a CNN legal analyst and professor at the University of Texas School of Law. He is the author of the upcoming book “The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic”. The opinions expressed in this commentary are his own. See more opinions on CNN.
Legal battles over President Joe Biden’s student debt relief program escalated on Thursday, when Trump-appointed Fort Worth, Texas-based Judge Mark Pittman overturned the program and issued a nationwide injunction. aimed at blocking it across the country.
Biden’s program aims to provide eligible low- and middle-income borrowers with $10,000 in federal student loan forgiveness — or up to $20,000 if they also received a Pell grant while in college. Before the program was suspended, it had already received 26 million applications.
But for Pittman, the central problem with the program is that its economic size requires clearer authorization from Congress than that provided by the 2003 law on which the executive branch relies. Invoking the Supreme Court’s new and deeply contested “major issues doctrine,” Pittman’s decision, if left intact, would make it impossible to rescue the program without Congressional intervention.
But the biggest problem with Pittman’s decision isn’t its substance; that is why he allowed the matter to be brought in the first place. All of the other challenges to the Biden program that have been brought so far (and there have been many) have been dismissed by the trial courts — the term courts use as shorthand for determining whether the dispute they are in seized is the type of controversy over which the Constitution allows them to exercise judicial power.
In a word, a case standing has three elements: that the plaintiff demonstrates “factual prejudice”; that the harm is “substantially attributable” to the defendant’s alleged wrongful conduct; and that the courts are able to provide at least some redress for their injuries.
Although the standing position is a technical doctrine, it is also important. As Justice Samuel Alito wrote in a 2007 opinion, “no principle is more fundamental to the proper role of the judiciary in our system of government.”
Basically, the idea is that it is not the job of federal courts to answer hypothetical questions or resolve political disputes. Only if a party can show how they have been harmed by the contested policy in a concrete and particular way – real and discreet – will they (usually) be allowed to challenge it.
If the complaint is simply that the government is acting unlawfully in a way that does not personally affect the complainants, that is a matter that must be resolved through the political process – not the judicial one. As Judge Antonin Scalia said 30 years ago, “justifying the public the public interest (including the public interest in the government’s observance of the Constitution and laws) is the function of Congress and the Chief Executive.
That’s why, until Thursday, every court hearing a lawsuit challenging Biden’s student loan debt relief package had dismissed the suit for lack of standing, as the court in Federal District of St. Louis in a lawsuit brought by six red states. Whether the plaintiffs were taxpayers or States, the problem was the same: like it or hate it, when the government grants a benefit to a class of individuals, it makes no difference. usually hurts other people discreetly.
Instead, objections to the Biden agenda present the classic kind of “blanket grievance” that the Supreme Court has long ruled federal courts lacked the constitutional power to resolve — such as when a taxpayer tried to sue the CIA in an attempt to force the agency to provide a public account of its (allegedly illegal) expenses.
In this context, Justice Pittman’s decision that both plaintiffs in his case had standing simply does not stand up. For both – Myra Brown and Alexander Taylor – Pittman tied their status to being partially or fully ineligible for the program. The harm they suffered, according to Pittman, is that they were unable to argue for broader eligibility criteria that would have included them — not that the program itself is illegal. This reasoning, as it stands, is particularly ironic for two reasons.
First, Pittman later acknowledged in the same notice that the Biden administration had not need to give Brown and Taylor an opportunity to argue for an expansion of the eligibility criteria – because the statute on which the program is based is exempt from the administrative law requirement known as “regulation by notice and comment”. So they had a status based on an injury that Pittman held…didn’t exist.
Second, the rest of Pittman’s analysis – that there was no way the Biden administration could broadened the eligibility criteria, since the program himself is, in his view, illegal – making it impossible for Brown or Taylor to show how their injuries could have been repaired in court. Indeed, Pittman’s decision to block the program nationwide provides Brown and Taylor with precisely…nothing.
The Biden administration has already announced plans to appeal Pittman’s ruling to the ultra-conservative U.S. Court of Appeals for the Fifth Circuit, and it’s likely whoever loses there will take the case to the Supreme Court. . So Pittman is unlikely to have the final say. But it’s still worth stepping back and reflecting on Pittman’s efforts to find status in a context in which every other court to date has ruled it did not exist.
Part of what Pittman might chafe at is the idea that the federal government might take any action that might be immune from judicial review (during a hearing in the case, he compared congressional delegation of power to the executive under the relevant law to the infamous habilitation of 1933 in Germany). But the federal government is taking action that the courts cannot review. Indeed, it is the conservatives to the Supreme Court who have spent much of the past 40 years tightening standing requirements — and making it harder for plaintiffs to challenge allegedly wrongful government action. Reasonable minds can and have challenged these precedents, but they have become the bedrock of doctrine in contemporary federal courts.
In this regard, Pittman’s decision, and the public discourse surrounding the student loan debt relief program more generally, is also a helpful reminder that these are not all political disputes. should lead to litigation – and that it is not the job of the courts to resolve all contentious issues in American politics.
For if Judge Alito were right to say that “no principle is more fundamental to the proper role of the judiciary in our system of government” than the idea that the courts can only decide cases which present real controversies and justiciable between opposing parties, then this principle should prevail against even the most strenuous (if not well-founded) objections to the impugned government policy. Otherwise, courts do not act as courts; they only take sides in political debates for which no one elected them.