The U.S. Court of Appeals for the Eighth Circuit has ordered the Biden administration to refrain from discharging any student loan debt while it considers an application for an injunction against the president’s debt cancellation program sought by six states.
For the moment, the order negates a ruling by U.S. district judge Henry Autrey, a Bush-43 appointee in St. Louis, which dismissed the states’ lawsuit, finding that they lacked standing. Judge Autrey’s ruling, issued in a 19-page opinion on Thursday, would have allowed the Biden program to proceed. The plaintiff states – Nebraska, Missouri, Arkansas, Iowa, Kansas, and South Carolina – are appealing, and asked the appellate court to freeze matters in place. By its order, the Eighth Circuit agreed to do that temporarily, while it considers whether to block the program pending full consideration of the appeal, which could take months.
In order to have the program enjoined while the appeal is pending, the states will have to show, first and foremost, that they are likely to succeed on the merits of the appeal. The injunction litigation is thus crucial; it is highly unlikely that the Circuit would ultimately sustain the Biden program on the merits if it has first found that the states are likely to prevail.
The Eighth Circuit’s brief order was issued on Friday evening. As Forbes reports, the order states: “Appellants’ emergency motion for an administrative stay prohibiting the appellees from discharging any student loan debt under the Cancellation program until this Court rules on the appellants’ motion for an injunction pending appeal is granted.”
As Ilya Somin contends at Volokh, the states have a strong chance of persuading the Circuit that Judge Autrey was wrong regarding the standing issue. The judge reasoned, for example, that Missouri lacks standing because it does not have sufficient control over the allegedly injured agency in the suit – the Missouri Higher Education Loan Authority – to sue on MOELA’s behalf. MOELA services student loans and thus would be directly harmed by the program’s full or partial forgiveness. Pace Autrey, MOELA is clearly a state agency: It is explicitly described in Missouri statutory law as a public entity with public functions; moreover, state law establishes MOELA as a component of the state’s Education Department, and five of its seven board members are appointed by the governor. Furthermore, even if we assumed for argument’s sake that Autrey were somehow right about MOELA’s supposed separateness from the state government, the state could simply have MOELA file the suit in its own behalf. MOELA has standing.
Consequently, expect the Eighth Circuit to reverse Judge Autrey’s ruling.
In essence, standing is what claimants need to show in order to get their case heard in court. It is worth stressing that standing question, though preliminary, is being argued vigorously in litigation over Biden’s program because the program is blatantly lawless (see, e.g., Rich here, and in his explainer here on the NR YouTube page; see also Charlie here, here and here; Dominic here; Rick Esenberg and Dan Lennington here; Richard Epstein here; Robby Soave here; Jonathan Turley here; the Cato Institute’s lawsuit here; and . . . I could go on). If litigants get over the standing hurdle, Biden’s program is in deep trouble.
Standing was undoubtedly a major factor in Justice Amy Coney Barrett’s peremptory rejection of another challenge to the Biden boondoggle – an emergency request by a group of Wisconsin taxpayers to block President Biden’s unconstitutional and fiscally reckless student-loan cancellation program (see related posts by Isaac and Caroline).
As we’ve noted in the past, Justice Barrett has complained about the surge in cases coming to the high Court through its emergency docket rather than through the normal process, in which the justices take a case only after their merits have been given thorough consideration by the lower courts. In some cases, that concern seems a tad precious to me. This is not one of them.
The Wisconsin claimants urged that Biden’s gambit would cause “a gargantuan increase in the national debt accomplished by a complete disregard for the limitations on the constitutional spending authority.” That is true, but it is not a basis for a lawsuit. To have standing, claimants have to demonstrate that they have some unique, concrete injury. It’s not enough to be a citizen angered — however justifiably — by governmental lawlessness. It is not the place of the judiciary in our system to address oversee the political branches; courts may legitimately address only cognizable claims of individual harm, not general claims of societal harm. Consequently, Justice Barrett was right to give the petition the back of her hand, without need to refer the matter to the full court.
The states, by contrast, have cognizable damage claims beyond simply recognizing that the student-loan cancellation gambit is dreadful policy. Another Ilya Somin Volokh post provides a superb explanation of why.