President Biden hopes to wipe away hundreds of billions of dollars in student loans with the stroke of a pen, but as applications for financial relief begin to roll in, the constitutional challenges to the plan to forgive vast student debt are coming into focus. 

These objections have coalesced in the form of an emergency appeal to the Supreme Court by a Wisconsin taxpayer group, the Brown County Taxpayers Association. The group asks the justices to stop the plan in its tracks. Vaporization of the debt is expected to begin as soon as October 23; applications went live this week.

The BCTA contends that the forgiveness plan is “a gargantuan increase in the national debt accomplished by a complete disregard for limitations on the constitutional spending authority.” Even as litigation in respect of the plan wends its way through lower courts, the group is eyeing expedited intervention. 

The appeal reaches the high court with a dubious track record: It was dismissed by a trial court just days after being filed, and riders of the United States Court of Appeals for the Seventh Circuit passed on an emergency request for a pause, a decision the group is appealing. 

Turning to the high court’s emergency docket, the association asks the justices to decide if taxpayers can sue to prevent executive officials from violating the “constitutional limitations” placed on the national parchment’s “spending power.” They label the president’s alleged bid to overshoot those limitations a “discrete national emergency.”

Citing the cost of the program and the executive power it forces, the association argues that there is no “legal justification for this presidential usurpation of the constitutional spending power, which is reserved exclusively for Congress.”

Even before that case can be made, these Wisconsin taxpayers must show that they belong in court. It is a tall order, and they conceded that challenge early in their filing, writing that they are “aware that prudential notions of standing are an issue here,” notions to which they are not “insensitive.”

“Standing” flows from the constitutional requirement that courts hear not abstract disagreements but only actual cases and controversies. Those who bring a lawsuit must have suffered harm or be in imminent danger of suffering harm. Plaintiffs must have suffered an injury that courts can remedy.

The BCTA grounds its request for standing in the claim that it and “those similarly situated are being asked to assume perhaps over one trillion dollars in debt,” an imposition that “harms them as taxpayers” and “threatens the very foundations of a constitutional republic.”

That did not convince the district judge, William Griesbach, who alleged that the taxpayers sought “an exception to the general rule against federal taxpayer standing.” That rule holds that the mere payment of taxes does not impart the ability to legally challenge the use to which those monies are put. 

In seeking to evade what the taxpayers call the “stumbling block” of standing, they argue that their opposition is directed not at how the money is being spent but at Mr. Biden’s constitutional ability to spend it in the first place. 

The BCTA’s president, Richard Heidel, notes in a statement that it is “unfortunate we must give the President of the United States and his administration an eighth-grade civics lesson on justice and the US Constitution.”

That lesson is keyed to the first clause of Article I, Section 8 of the national parchment, which reads: “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States.”

The high court has seen that arrogation of power as the hook on which legal challenges to government spending can hang. In Flast v. Cohen, the court held that “a taxpayer will be a proper party to allege the unconstitutionality only of exercises of congressional power under the taxing and spending clause.”

The bar is a difficult one to clear, as the court went on to explain that plaintiffs must show that the “enactment exceeds specific constitutional limitations imposed upon the exercise of congressional taxing and spending power and not simply that the enactment is generally beyond the powers delegated to Congress.”

In light of this mandate, the BCTA sees the debt cancellation plan as a “massive and unprecedented usurpation of Congressional spending power” whereby the chief executive reaches to “unilaterally forgive debt owed to the United States Treasury.” The executive branch can spend only what Congress allocates. 

That position was until recently held by Speaker Pelosi, who told reporters last year in respect of loan forgiveness that “the president can’t do it” and that the “president can only postpone, delay, but not forgive” that debt. According to the research group Institute for Student Access and Success, America’s total student debt stands at more than $1.5 trillion.  

President Biden argues that the loan forgiveness is blessed by the Higher Education Relief Opportunities for Students Act of 2003, a law that empowers the federal government to alter student-loan programs in response to emergencies. For the administration, Covid-19 was one such crisis. 

Mr. Heidel, the BCTA president, thunders that the plan to cancel hundreds of billions of dollars of that total “amounts to nothing more than a modern-day version of King George III’s Stamp Act where there was massive taxing and spending without participation of the People’s representatives.”