Co-blogger Sam Bray and I have just filed an amici brief in Biden v. Nebraska, the Supreme Court student loan forgiveness case, taking what I suspect is a unique position among any of the public filings. Here is the introduction to our brief:
Amici believe that the administration's student loan forgiveness program is unlawful. But even if the executive branch has exceeded its authority under Article II, that does not permit the judicial branch to exceed its authority under Article III. "The case-or-controversy doctrines state fundamental limits on federal judicial power in our system of government." Allen v. Wright, 468 U.S. 737, 750 (1984). Any executive overreach is troubling. But "[t]here is no reason to magnify the separation-of-powers dilemma . . . by letting Article III judges—like jackals stealing the lion's kill—expropriate some of the power that [the Executive] has wrested from [Congress]." FCC v. Fox Television Stations, Inc., 556 U.S. 502, 525-26 (2009) (plurality opinion).
The standing theories that have been thrown at the wall in these cases are wrong, and many of them would have dangerous implications. Each theory falters on several grounds, but amici focus this brief on three points.
First, when it comes to standing, the critical question is who is the "proper party" to sue. This inquiry has been framed in different ways but the central aim is to ensure that the person most affected by the challenged action is before the court. Applying that principle here, Missouri has no standing to complain about the loan servicing fees that the Missouri Higher Education Loan Authority (MOHELA) might lose. Missouri set up MOHELA as a separate legal and financial entity, with the power to sue and be sued. MOHELA is far and away the most interested plaintiff, with Missouri's claims being merely derivative of MOHELA's. MOHELA has chosen not to bring a lawsuit, and as the "proper party" to the suit, its decision ought to carry the day.
Second, there is danger in countenancing extravagant theories of state standing that have exploded in the wake of this Court's decision in Massachusetts v. EPA, 549 U.S. 497 (2007). In the last decade, state attorneys general have relied on that case's underexplained language about "special solicitude," see id. at 520, producing a barrage of suits with tenuous standing theories against administrations of the opposing political party. Overbroad readings of that case should be forcefully rejected by this Court, lest state standing be allowed to transform the role of the federal judiciary.
Third, there is a fundamental disconnect between the states' weak claim for standing and the broad remedy they obtained—a national injunction. That disconnect is incompatible with the traditional limits of equitable jurisdiction and with this Court's instruction that standing must be demonstrated for each form of relief. The Court has not granted review specifically on the scope of the injunction, and may not wish to consider all aspects of that question in this case. But the scope of the relief is relevant, whether as part of the standing inquiry or as part of the broader questions of judicial power the Court should consider. Not only did the states seek and obtain a national injunction—a remedy lacking any traditional basis in equity—but they obtained this exceedingly broad remedy with an unusually weak basis for standing. That combination is at odds with basic principles of standing and equity jurisprudence that are applicable in the federal courts.
A few other excerpts below:
