Biden Switch on Standing Could Doom Future Litigation by Democrats

In seeking to preserve the administration’s student loan program — oral arguments before the Supreme Court are Tuesday — President Biden risks winning progressives a Pyrrhic victory on the question of standing, or what kind of injury allows a plaintiff to get through the courthouse doors. That, at least, is the argument of one of the leading lights of liberal academia. Jed Shugarman, who teaches at Fordham, tells the Sun that Mr. Biden’s Department of Justice is “playing fast and loose with standing doctrine in a way that is cynical.” Democrats, he chides, should “know better.”Mr. Shugerman allows that Mr. Biden’s position on standing is “something that needs to be called out” and constitutes “whiplash reversal on the rule of law.” While supporting student loan forgiveness as a policy matter, he contends that this switch should ensure a “9-to-0” shellacking for the president. That standard is rooted in the Constitution’s requirement that federal courts hear only “cases” and “controversies.” This doctrine finds its shape in Lujan v. Defenders of Wildlife, from 1992. To meet the bar for standing, plaintiffs have to show an actual and concrete injury, a connection between that injury and the conduct in question, and a likelihood that the court’s decision will redress the injury that has been inflicted. This standard has been particularly hard to clear in cases involving the public purse, as courts have long held that a mere disagreement over how taxpayer funds are spent is not enough to confer standing unless there is a clear constitutional violation in how those monies are being spent, such as a violation of the Establishment Clause. In this vein, the Biden administration has taken the position that the Republican attorneys general challenging the loan forgiveness plan — which is projected to cost $400 billion — lack standing. That stance was favored by a district court judge but rejected by the riders of the Eighth U.S. Appeals Circuit.Those jurists found that because the student loan plan would affect the Missouri Higher Education Loan Authority, a nonprofit, state-created entity in Missouri, if it can show a cognizable injury, it can bootstrap up the other challengers to the executive action. Mohela services student debt, and argues it would suffer if that debt was wiped out. To avoid that possibility, Mr. Biden’s lawyers are arguing for an understanding of standing that in its parsimoniousness departs from the Lujan template by requiring what Mr. Shugerman, in an amicus brief, calls an “immediacy or directness rule.” This means that the tie between harms of Mr. Biden’s plans, or any other action under consideration, would have to be tight, not just legible. The government finds this standard in a strange place; a footnote penned by Justice Antonin Scalia in Lujan that adds the word “immediacy” to the usual collection of standing requirements. Relying on that slim reed, as the government does, is for Mr. Shugerman a “mischaracterization” that should especially concern “progressives and fellow travelers.” Mr. Shugerman writes that it is “all too convenient for those recent opponents of the last administration’s abuses to argue for a new directness rule against standing now that they are in power.” That is because it is progressive groups that have historically argued for generous standing requirements to press their cases. This strategy was deployed repeatedly under President Trump, when, in Mr. Shugerman’s words, those on the left “litigated the abuse of executive power based on standing from indirect injuries and indirect causation.” Those litigations included suits brought based on the Emoluments Clause, the Border wall, the so-called Muslim ban, and the Deferred Action for Childhood Arrivals program. Under the standard now advocated by Mr. Biden, those cases would have been more difficult to launch, let alone win.

Biden Switch on Standing Could Doom Future Litigation by Democrats

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