Today the Supreme Court refused to immediately revive Biden’s $500 billion student loan forgiveness plan, which a Texas judge had ruled was illegal, and the federal appeals court in St. Louis has temporarily blocked. But it agreed to the Biden administration’s request that it hear an appeal of the federal appeals court’s decision, in an order in Biden v. Nebraska. That means the Supreme Court will rule on at least one of the legal challenges to the Biden Administration’s student loan forgiveness policy.
The order reads:
Consideration of the application to vacate injunction presented to Justice Kavanaugh and by him referred to the Court is deferred pending oral argument. The application to vacate injunction is also treated as a petition for a writ of certiorari before judgment, and the petition is granted on the questions presented in the application.
The Clerk is directed to establish a briefing schedule that will allow the case to be argued in the February 2023 argument session.
The Biden Administration had asked the Court to vacate the injunction entered by the U.S. Court of Appeals for the Eighth Circuit (the federal appeals court in St. Louis). The Supreme Court denied that request.
But in its application for a stay, the Biden administration also suggested the Court could treat the application as a petition for certiorari presenting the following to questions:
(1) whether respondents have Article III standing;
(2) whether the plan exceeds the Secretary’s statutory authority or is arbitrary and capricious.
The Biden administration might win on the issue of whether the states challenging Biden’s plan have Article III standing to challenge it as illegal. Just because something is illegal does not necessarily mean that a state has legal standing to sue over it.
But the Supreme Court likely won’t say the plan is legal, nor will it likely disagree with the Texas judge that it is illegal. As law professor Jonathan Adler states, “If the justices conclude the plaintiffs have standing and reaches the merits, I would think the Biden Administration faces an uphill battle to save this initiative (and that this would be true even without West Virginia v. EPA adding the major questions doctrine to the mix).”
