The most aggressive initial challenge to President Joe Biden’s student debt relief program reached the Supreme Court on Wednesday. It will fail. The reason why is simple. For decades, the conservative justices have tightened the rules around who’s entitled to sue in federal court. And under any reading of precedent, the Republican activists who brought this lawsuit have absolutely no right to challenge a single dollar of debt forgiveness.
Those activists work at an organization called the Wisconsin Institute for Law and Liberty, or WILL, a dark money conservative group that’s most notorious for trying to purge hundreds of thousands of people from the voter rolls in 2020. More recently, WILL pushed a successful lawsuit to outlaw ballot drop boxes in Wisconsin, giving the state Supreme Court an opportunity to suggest that Biden’s 2020 victory was “illegitimate.” The group opposes voting rights, unions, COVID restrictions, Medicaid expansion—it exploits the courts to combat pretty much every democratically enacted progressive policy. So it was probably inevitable that it would mount a challenge to student debt relief.
But WILL faces the same problem that every other Republican lawyer attacking the program has encountered: They are not directly harmed by debt cancellation, so they don’t have standing to sue. The Supreme Court has consistently held that, under the Constitution, a plaintiff lacks standing unless they can identify a “concrete and particularized” injury, and show how a ruling in their favor would redress that injury. If a plaintiff flunks this test, there’s no actual “controversy,” so the federal judiciary has no authority to hear the case.
WILL attempts to surmount that obstacle by bringing suit on behalf of the Brown County Taxpayers Association. This association—which purports to represent Wisconsin taxpayers—says that because of Biden’s program, “its members will be forced to pay higher taxes and live in an America that is less prosperous, more fiscally irresponsible, and burdened by a higher federal debt.” According to WILL, the association’s members are so upset about this threat that they have suffered a constitutional “injury” giving them standing to sue. In other words, they believe the plan is both fiscally irresponsible and illegal, and claim it will harm them as taxpayers.
One problem: The Supreme Court has time and again ruled that taxpayers do not have standing to sue. This precedent, which reaches back at least a century, prohibits individual citizens from suing to halt some federal expenditure. That’s because, as Justice Samuel Alito put it in 2007, “it is a complete fiction to argue that an unconstitutional federal expenditure causes an individual federal taxpayer any measurable economic harm.” There are practical problems, too; as Alito explained in that case: “If every federal taxpayer could sue to challenge any Government expenditure, the federal courts would cease to function as courts of law and would be cast in the role of general complaint bureaus.” SCOTUS has only tightened standing requirements since 2007.
Yet WILL’s lawsuit rests entirely upon the discredited theory of taxpayer standing. Its plaintiffs complain that they are “witnessing a gargantuan increase in the national debt accomplished by a complete disregard for limitations on the constitutional spending authority.” This emotional and speculative objection to a federal expenditure is exactly the kind of “harm” that federal courts cannot adjudicate. There is no principled way to grant WILL standing without opening the floodgates to endless taxpayer lawsuits challenging federal spending on the military, veteran services, health care, education, transportation, housing, the environment—every federal action under the sun.
To get around this bar, WILL cites a lone exception to the ban on taxpayer standing: 1968’s Flast v. Cohen. In Flast, the Supreme Court let taxpayers sue over violations of the First Amendment’s establishment clause, which guarantees the separation of church and state. As the court noted, this clause was designed to ensure that the “taxing and spending power” would never be used “to favor one religion over another or to support religion in general.” Thus, the Flast court found, the use of taxpayer dollars to subsidize religious exercise poses a unique threat to religious liberty—a threat that’s absent in all other contexts.
WILL argues that subsidizing student debt is more or less analogous to subsidizing religion. So, under Flast, its plaintiffs face a genuine harm that entitles them to sue. There are two problems with this theory. First, the Supreme Court has strictly limited taxpayer standing to federal expenditures that violate the establishment clause, expressly rejecting even modest expansions of the doctrine. Nobody seriously argues that Biden’s student debt relief breaches the separation of church and state, so WILL’s theory is a nonstarter.
But perhaps more importantly, Flast is a dead letter at this Supreme Court. Conservative justices like Antonin Scalia and Clarence Thomas have demanded Flast’s reversal, insisting that it is unprincipled, unworkable, and unconstitutional. The court has refused to apply it in case after case and warned lower courts not to expand it at all. There is no chance that the current conservative supermajority would even uphold Flast, let alone extend it to the novel context of student debt forgiveness.
This precedent is why U.S. District Judge William C. Griesbach, a George W. Bush appointee, rejected WILL’s suit in a five-page order, and why the 7th U.S. Circuit Court of Appeals refused to revive it. (The panel included judges appointed by Ronald Reagan and Donald Trump.) Indeed, the group’s standing argument is so absurd that it’s difficult to see this suit as anything more than a political stunt designed to impress its dark money donors. The Supreme Court’s Republican appointees surely loathe Biden’s program and believe it is illegal. But even the most cynical court-watcher must admit that there is zero chance five justices will accept WILL’s special pleading here.
While these hopeless lawsuits fly around, the Biden administration is accepting millions of applications for relief, and it will start canceling debt very soon. The time has come for Republicans to stop fantasizing about some 11-dimensional chess move to kill the plan in court and begin contemplating realistic political solutions.
There is one obvious response: Republicans could promise to reimpose all student debt canceled by Biden as soon as they retake the White House. It is typically within the executive branch’s powers to void a previous administration’s unlawful policy; even when millions have come to rely on that policy, the courts may still let the new president kill it. (After Dobbs, it’s not even clear that reliance interests still exist.) Griesbach acknowledged this possibility in his opinion, and it’s curious that GOP lawmakers are not discussing it. Their silence vividly illustrates their party’s strategy of passing off unpopular political decisions to the federal courts to minimize political backlash. If Republicans truly believe Biden’s program is an outrageous and unconscionable assault on the Constitution, they should stop crafting hopeless lawsuits and start warning borrowers that their debt will reappear once their party recaptures the executive branch.