Editor’s Note: Steve Vladeck is a CNN legal analyst and a 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. View more opinion at CNN.
The legal battles over President Joe Biden’s student loan debt relief program heated up on Thursday, when the Fort Worth, Texas-based Judge Mark Pittman, a Trump appointee, struck down the program and issued a nationwide injunction purporting to block it across the country.
Biden’s program aims to provide eligible low- and middle-income borrowers $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 put on hold, it had already received 26 million applications.
But for Pittman, the central problem with the program is that its sheer economic size required clearer authorization from Congress than that provided by the 2003 statute on which the executive branch is relying. Invoking the Supreme Court’s new and deeply contested “major questions doctrine,” Pittman’s ruling would, if left intact, make it impossible for the program to be rescued without Congress stepping in.
But the biggest problem with Pittman’s ruling isn’t its substance; it’s why he allowed the case to be brought in the first place. Every other challenge to the Biden program that’s been brought thus far (and there have been a bunch) have been thrown out by trial courts for lack of standing – the term courts use as a shorthand for whether the dispute before them is the kind of controversy over which the Constitution allows them to exercise judicial power.
In a nutshell, a case’s standing has three elements: That the plaintiff shows an “injury in fact”; that the injury is “fairly traceable” to the defendant’s allegedly wrongful conduct; and that the courts are able to provide at least some redress for their injuries.
Although standing is a technical doctrine, it’s also an important one. As Justice Samuel Alito wrote in a 2007 opinion, “No principle is more fundamental to the judiciary’s proper role in our system of government.”
Basically, the idea is that it’s not the federal courts’ job to answer hypothetical questions or resolve policy disputes. Only if a party can show how they’ve been harmed by the challenged policy in a manner that is concrete and particularized – real and discrete – will they (usually) be allowed to challenge it.
If the complaint is just that the government is acting unlawfully in a way that doesn’t affect plaintiffs personally, that’s a matter to be resolved through the political process – not a judicial one. As Justice Antonin Scalia put it 30 years ago, “vindicating the public interest (including the public interest in Government observance of the Constitution and laws) is the function of Congress and the Chief Executive.”
That’s why, until Thursday, each court to rule on a lawsuit challenging the Biden student loan debt relief program had dismissed the suit for lack of standing, like the St. Louis-based federal district court in a suit 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 hands out a benefit to a class of individuals, that doesn’t usually injure other individuals discretely.
Instead, objections to the Biden program present the classic kind of “generalized grievance” that the Supreme Court has long held federal courts lack the constitutional authority to resolve – like when a taxpayer tried to sue the CIA in an attempt to force the agency to provide a public accounting of its (allegedly unlawful) expenditures.
Against that backdrop, Judge Pittman’s holding that the two plaintiffs in his case had standing just doesn’t hold up. For both of them – Myra Brown and Alexander Taylor – Pittman tied their standing to the fact that they are partly or fully ineligible for the program. The injury they suffered, in Pittman’s view, is that they were unable to argue for more expansive eligibility criteria that would’ve included them – not that the program itself is unlawful. That reasoning, such as it is, is especially ironic for two reasons.
First, Pittman recognized later in the same opinion that the Biden administration didn’t need to provide Brown and Taylor with an opportunity to argue for expanded eligibility criteria – because the law the program is based on is exempt from the administrative law requirement known as “notice-and-comment rulemaking.” So they had standing based on an injury Pittman held … didn’t exist.
Second, the rest of Pittman’s analysis – that there was no means by which the Biden administration could have expanded the eligibility criteria, since the program itself is, in his view, unlawful – makes it impossible for Brown or Taylor to show how their injuries could have been redressed by the courts. Indeed, Pittman’s ruling blocking the program on a nationwide basis provides Brown and Taylor with precisely … nothing.
The Biden administration has already announced its intent to appeal Pittman’s ruling to the ultra-conservative US Court of Appeals for the Fifth Circuit, and it’s likely that whoever loses there will take the matter to the Supreme Court. So Pittman is unlikely to have the last word. But it’s still worth taking a step back and reflecting on the lengths to which Pittman went to find standing in a context in which every other court to date has held it doesn’t exist.
Part of what Pittman might be chafing against is the idea that the federal government could take any action that might be immune to judicial review (during one hearing in the case, he compared Congress’ delegation of authority to the executive branch under the relevant statute to the infamous 1933 Enabling Act in Germany). But the federal government takes actions courts can’t review. Indeed, it’s the conservatives on the Supreme Court who have spent much of the past 40 years tightening the requirements for standing – and making it harder for plaintiffs to challenge allegedly wrongful government action. Reasonable minds can dispute – and have disputed – those precedents, but they’ve become the foundation of contemporary federal courts doctrine.
In that respect, Pittman’s ruling, and the public discourse surrounding the student loan debt relief program more generally, is also a helpful reminder that not every policy dispute should lead to litigation – and that it’s not the job of the courts to resolve every contentious issue in American politics.
For if Justice Alito was right that “no principle is more fundamental to the judiciary’s proper role in our system of government” than the idea that courts can only decide cases that present actual, justiciable controversies between adverse parties, then that principle ought to prevail even against the most strenuous (if not well-taken) objections to the government policy being challenged. Otherwise, the courts aren’t acting as courts; they’re just taking sides in policy debates that no one elected them to resolve.