In a blog post building on points he made in our recent debate at his school, Cornell law professor Michael Dorff argues that the plaintiffs in the Supreme Court case challenging the legality of President Biden’s massive student loan forgiveness plan should be denied, standing, based on “third parties.” Adverse rules to stand for. While his argument is clever, it ignores the key point that third-party standing restrictions apply only to claims based on the constitutional rights of individuals, not addressing structural limitations on government power. Additionally, if the Court were to accept his argument, it would set a dangerous precedent that would block most legal challenges to illegal government spending.
Standing issues have long been the biggest obstacle to challenging Biden’s debt-forgiveness plan in court. In terms of competence, the position of the administration is very weak. According to current Supreme Court precedent, plaintiffs must meet three requirements in order to file a lawsuit in federal court: they must 1) have suffered an “injury in fact,” 2) the injury in question must have been caused by the alleged illegal conduct they are challenging, and 3) the court’s determination of the injury. should be able to remedy.
The “actual injury” requirement has been a major stumbling block for opponents of debt forgiveness plans. The plan’s most obvious victims are taxpayers, who will foot the bill for this massive giveaway (estimated at $400 billion or more). But longstanding Supreme Court precedent rejects the taxpayer’s position, except in certain narrow circumstances that are not relevant here. but Biden v. NebraskaIn a lawsuit brought by six Republican-controlled state governments, the state of Missouri overcame this hurdle because it has a state agency— Missouri Higher Education Loan Authority (HELO)A model) – that service student loans, some of which would at least be forgiven by the Biden plan. The Biden loan forgiveness program would predictably reduce the lender’s revenue from those loans, and even a small financial loss of that kind is enough to qualify under Supreme Court precedent.
In previous posts (see here and here), I’ve criticized the Biden administration’s argument that Missouri MOHELA lacks standing to bring a claim because the latter is independent of other state government agencies. Dorf, however, argues that Missouri should “deny standing under the so-called third-party general rule that parties may bring only their own claims.” Under this theory, Missouri and Mohela are merely “third parties” because the potential invalidity of the student loan forgiveness plan does not undermine any of their legal rights. It merely violates the constitutional and statutory limits of executive power.
In support of this theory, Dorf relies on Justice Clarence Thomas’s dissent June Medical v. Russo (2020), where Thomas argues that the court erred in granting abortion providers standing to challenge laws restricting abortion. The constitutional right in question belongs to pregnant women, and therefore cannot be raised by “third party” providers.
But, as Thomas notes, this third-party standing prohibition applies to cases where private parties attempt to “bring a case to prove.” Constitutional rights of individuals who are not before the court” [emphasis added]. It does not apply to structural limitations on government power, such as federalism and (in this case) separation of powers. Dorf himself points out that the Supreme Court has said as much Bond v. United States (2011), where a person charged with a federal crime was allowed to argue that the statute in question was unconstitutional because it exceeded the scope of federal power.
The Court unanimously ruled that individuals have standing to raise federalism issues because “[b]y By denying any one government absolute jurisdiction over all concerns of public life, federalism protects individual freedom from arbitrary power. When the government acts in excess of its statutory powers, that liberty is at risk.” The Court pointed out that the same principle applies to the separation of powers:
Recognition of an injured person’s standing to object to violations of constitutional principles allocating powers within government is illustrated in an analogous context, where individuals suffer a separate, justifiable injury from actions that violate separation-of-powers constraints. The principles of separation of powers are, in part, intended to protect each branch of government from encroachment by the others. Yet mobility within and between branches is not the only concern of the Constitution. The structural principles protected by separation of powers also protect the individual.
Unlike individual rights claims, which—in this theory—can only be asserted by individuals who have suffered specific rights violations, structural claims can be brought by anyone, because structural limitations on government power provide general protections for all Americans.
The loan waiver case is exactly the kind of situation the court was talking about bond. Mohela—and the state of Missouri generally—suffered “a separate, equitable injury from actions that violate the separation-of-powers limitation.” If the plaintiffs are correct, then the executive usurped Congress’s spending power and hurt Mohela in the process. As Dorf acknowledges, that injury is precisely the kind that would normally satisfy the standing requirement (the “third party” limitation aside). To be sure, MOHELA and Missouri are state agencies rather than private citizens. But the separation of powers rule — like other structural limits on the federal government’s power — also protects the states.
As Thomas acknowledges in him June Medical Dissentingly, third-party claims sometimes have standing in the context of individual rights. In fact, the court allowed just that June Medical itself, and in many other cases, such as the famous 1925 judgment Pearce v. Society of Sisters, where a private school was allowed to raise parental rights in a challenge to a state law requiring children to attend public school from ages eight to sixteen. Thomas believes all of these cases were wrongly decided. I think he himself is wrong here. Regardless, he does not even claim that third-party permanent limitations should apply to structural cases.
Dorf also argues that Mohela and Missouri’s injury does not qualify for standing because it is not the proper type of harm:
But even recognizing that structural safeguards exist to protect the individual, there is a limit to how far that principle extends. Bond himself objected that the law that would apply to him exceeded the power of Congress. But suppose that Bond’s next-door neighbor wanted to sue the government on the grounds that his house would be vacant if Bond went to jail, creating a greater risk of crime, which would lower the value of the neighbor’s property. There may be many objections to such a case, but a threshold objection should be that this is not the kind of injury that counts—even if we assume that it is almost certain to occur. Why not? Because the anticipated pecuniary loss of the neighbor, even if substantial and almost certain, has nothing to do with the alleged unconstitutionality of the law applicable to the bond.
It is arguable that in this assumption the bond neighbor’s injury would not qualify because it is caused by the intervening actions of third parties: criminals who may target the neighborhood and buyers who are not willing to pay high prices. A price for homes in the area, as a result. Thus, the neighbor may lose based on the requirement of standing.
But such consideration is not applicable to MOHELA situation. Here the illegal activities of the administration directly cause financial loss to the community and the state. If Bond’s neighbor was similarly directly injured, he should also have standing to sue.
And, as I mentioned in our previous debate, I have the same reaction to Dorf’s hypothesis regarding an electric chair manufacturer whose contract with the government is voided because the president decides to commute all federal death sentences in a way that the manufacturer’s claim exceeds the scope of the president’s authority. Should the manufacturer’s claims fail on the merits (because such action is within the scope of the President’s pardon power), he is entitled to standing.
If the court were to reject the Missouri case based on Dorff’s theory, it would set a very dangerous precedent. Unless an ordinary taxpayer has standing, almost all challenges to the legality of government spending must rely on injury, as in Missouri, where government spending causes some sort of economic harm to a state or private party. If MOHELA doesn’t hit the right kind of direct financial loss, it’s hard to see what will.
The net effect of such permanent rules is to give presidents a nearly blank check to raid the Treasury for their pet projects, fearing that lawsuits could stop them. To be sure, one or both houses of Congress may still be able to bring a case, since the D.C. Circuit ruled on Donald Trump’s challenge to remove funding for his border wall construction (Trump’s border wall power grab has many parallels with Biden’s debt forgiveness policy). But such cases are likely only if the party opposing the president controls at least one house of Congress. So, the president can still spend illegally during “connected” government.
Even if you believe in Biden as such a force, you probably don’t have the same confidence in Trump, Ron DeSantis, or whoever the next Republican president might be. If broad third-party standing restrictions had a strong foundation in the text and original meaning of the Constitution, perhaps we would have to live with this danger. But, as Dorff recognized in our Cornell debate, they do not.
Indeed, the whole doctrine of standing is essentially a judicial creation, and a very dubious one at that. In my view, the Supreme Court should simply strike it down, or at least allow the taxpayer to stand in cases involving illegal expenditure. Justices are unlikely to do so anytime soon. But they should at least avoid extending third-party standing restrictions to cover cases over structural issues as well as individual rights.