Supreme Court justices might not like President Joe Biden's student-loan forgiveness — and they might not even think he has the authority to carry it out.
But none of that matters if the court finds that a major legal condition doesn't exist: standing, in which a plaintiff must prove concrete injury caused by the policy they're challenging.
When the Supreme Court
took on the two cases
that paused Biden's plan to cancel up to $20,000 in student debt for federal borrowers on Tuesday, all justices scrutinized whether the plaintiffs in both cases had the grounds to sue Biden's plan in the first place. The first case the court heard was brought by six Republican-led states who argued the debt relief would hurt their states' tax revenues, and the revenue of student-loan company MOHELA. The second case was brought on behalf of two student-loan borrowers who did not qualify for the full $20,000 amount of relief.
Both cases raised concerns about Biden's ability to use the HEROES Law of 2003 to cancel student loans. This law gives the Education Secretary the power to modify or waive student-loan debts in connection to a national emergency like COVID-19. They claimed that the president was using that law to demonstrate executive overreach and stated it wasn't what Congress intended.
While the justices questioned all of those topics, they spent the bulk of the time drilling into the issue of standing. Article 3 standing is something all plaintiffs must prove — that they would be injured by the policy, that the injury can be directly traced back to the defendant, and that the relief they're seeking would address those injuries.
Abby Shafroth, director of the Student Loan Borrower Assistance Project at the National Consumer Law Center, explained to Insider that the Supreme Court must find the cases have standing first, above all else.
"If there are five votes finding that neither of the parties bringing these lawsuits have standing, then the court doesn't have any authority to decide the issue of whether the action was legal here," Shafroth said. "That would be a finding that is not within the court's power to decide."
So, as Shafroth said, it could be "entirely possible" that the Supreme Court ends up issuing an opinion that says they think Biden acted without proper authorization of Congress, but that justices will "recognize our own limits on authority by dismissing this case for lack of Article Three standing."
And it looks like both conservative and liberal justices aren't sold on whether that conditions exists in the cases.
Court would be "breaking new ground" if they found standing
MOHELA's involvement in the GOP-led case had all of the justices questioning whether the states could allege an injury to MOHELA is an injury to Missouri, where the company is based.
Justice Ketanji Brown Jackson, for example, asked Solicitor General Elizabeth Prelogar — on behalf on Biden: "If MOHELA is being injured as a result of the plan or at least if that's the allegation, MOHELA has the ability to defend itself and its interests, correct?"
Prelogar replied that MOHELA is an independent entity and can sue and be sued by itself. Jackson asked her if she thought they were "breaking new ground" in finding states that have standing. Jackson agreed.
"One of the critical facts the Court has highlighted is whether there's some impediment that would prevent the party whose rights and interests are implicated from pursuing its own claim," Prelogar said. "There is nothing like that here, and the Court has never recognized a doctrine of third-party standing on facts like these."
If the court does find the case has standing, Shafroth said, "it would make it look very much look like the court is manipulating standing doctrine and its own constitutional limitations in order to pursue an ideological agenda against Biden's debt relief program."
Still, the states' counsel Jim Campbell defended MOHELA's involvement in the case.
He stated that Missouri, "On Standing", has the right to defend MOHELA's harms. "MOHELA, a state-created public instrumentality controlled by the state that provides financial aid to Missouri students, fulfills an essential public function."
"The Secretary's program threatens to cut MOHELA's operating revenue by 40 percent," he continued. "That will directly undermine MOHELA's ability to further its critical public purposes, and the state has standing to assert those harms."
The Supreme Court will issue a decision by June, when borrowers will find out if the justices' skeptical line of questioning on standing will hold up.