In February, the Supreme Court will hear not one but two cases challenging President Joe Biden’s plan to cancel student loan debt. The most important question remains, however: Will the high court reach the question of whether Biden has the authority to cancel student debt?
To most, it seems the court has only two options: It could strike the plan down as an abuse of power, or it could uphold the plan as a legitimate use of power.
But the Supreme Court has a third option: It might say that the challengers (several states and two ineligible borrowers) don’t have standing to sue.
If nobody has standing—a concrete injury caused by Biden’s plan that a court can fix—the court won’t even consider whether Biden’s plan is lawful.
In that case, Biden’s plan will go forward even if it is an abuse of power, because there simply isn’t anyone to stop it. And that would be a shame because Biden’s plan is an abuse of power and a costly one, which ought to be stopped.
We believe that several members of the state coalition led by Missouri and Nebraska have the required standing. But, just in case the Supreme Court is inclined to hold that none of the challengers can sue, a Plan B is needed.
As it turns out, the Supreme Court may have provided one inadvertently by setting oral arguments in the two cases for February 2023. That gives the new Republican majority in the House time to bring its own lawsuit when the balance of power shifts in January.
Democrats, who now control the House, never would challenge Biden’s loan cancellation plan even though many of them, including House Speaker Nancy Pelosi, have said that only Congress has the power to cancel student loans.
No surprise, then, that Biden rushed to implement his plan before the end of the year. Yet the lower courts stopped his frantic “forgiveness” efforts, and the Supreme Court has kept those injunctions in place until it hears the challenges in February.
That gives House Republicans a short window to file their own lawsuit against Biden’s plan once they take control. And they should sue, because the House has a decent shot at getting past the standing hurdle.
The House prevailed on standing in a similar case that it brought against President Donald Trump over his attempt to use an emergency to reallocate military funds to construct a border wall.
The D.C. Circuit Court of Appeals held that the House had standing to challenge Trump’s decision because by reallocating money he “defied an express constitutional prohibition that protects each congressional chamber’s unilateral authority to prevent expenditures.” In short, because the House and Senate each hold one of the nation’s purse strings, when the president redirects funding, each suffers an institutional injury to its power over the purse.
That same reasoning should apply here. Biden, under the pretext of the waning pandemic emergency, canceled over $400 billion in student debt owed to the federal government, converting what were once loans into a form of spending. The D.C. Circuit’s opinion on the border wall strongly indicates that if the Republican-led House sued over Biden’s plan, the federal courts in D.C. would hold that it has standing.
True, some argue that the appeals court’s decision on the wall was incorrect and that only Congress as a whole would have standing. But the Supreme Court would have to decide that issue, and that would put yet another challenge to Biden’s plan in front of it.
For House Republicans, a lawsuit would be worthwhile not only to stop Biden’s abuse of power and deliver on their campaign promises of greater oversight, but also because the House is best positioned to defend the Constitution’s separation of powers.
And a strong decision from the Supreme Court holding that the Constitution gives the power of the purse to the legislature alone might stop presidents from treating the federal budget like a slush fund.
A decision with that effect wouldn’t just be good for Republicans but good for constitutional government, no matter which party is in charge.
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