On Wednesday I wrote about the case challenging Biden’s student loan debt cancellation program filed by the Pacific Legal Foundation (PLF) on behalf of attorney Frank Garrison, who is himself a PLF employee. For details about the case and its novel strategy for getting around the procedural constraint of “standing” see my earlier post.

Yesterday, federal district court Judge Richard Young issued an order denying the plaintiff’s motion for a temporary restraining order and preliminary injunction blocking. But the order is “without prejudice,” which means Garrison and PLF can quickly refile the case. And, in fact, the judge’s order gives them until October 10 to file an amended complaint, in which he urges them to consider the following two issues:

1. Whether he (and any additional plaintiffs) have standing. Particularly, whether
their injury is caused by and fairly traceable to the debt relief program or to the
Indiana Tax Code. See Segovia v. United States, 880 F.3d 384, 388–89 (7th
Cir. 2018).

2. Whether the Department of Education has taken sufficient action for the case
to be ripe for adjudication. Plaintiff’s allegations speculate about the terms of
the program. But as evidenced by the Government’s recent addition of an opt-
out provision, the plan is still evolving.

The first question relates to “causation,” which is one of the requirements of standing. As I see it, the cause of Garrison’s injury is the combination of the Biden plan and the Indiana Tax Code’s refusal to exempt this type of loan forgiveness from taxation (even as it does exempt the type of loan forgiveness he would get in the absence of the plan). But the fact that the Biden plan causes the injury in conjunction with actions by others doesn’t necessarily defeat standing, so long as the injury would still be avoided in the absence of the administration’s actions. There are previous cases where an injury  like this was enough to qualify for standing. Most famously, in Massachusetts v. EPA (2007), the Supreme Court ruled that Massachusetts and other states had standing to challenge the EPA’s refusal to regulate to prevent global warming, despite the fact that the claimed injuries were not solely caused by the EPA’s refusal to act, but by the combination of that and continuing emissions by various polluters.

As the judge notes, the administration has said that it plans to create an opt-out from its loan forgiveness plan that Garrison and others like him can take advantage of. Whether that defeats standing may depend on how the opt-out works, and how costly it is to get one. If doing so has even a small cost, that in itself might qualify as an “injury” sufficient for standing, even if a small one (a very small injury can be enough).

I will leave the ripeness issue to others with greater relevant expertise on that subject. But I expect that problem will soon become irrelevant, because the administration plans to begin implementing the plan, in the near future (probably in October).

Meanwhile, the significance of this lawsuit has diminished over the last 24 hours, because of the filing of another suit challenging the loan forgiveness plan, by six state governments. This one has a more conventional and stronger basis for standing, that seems likely to succeed.

NOTE: The Pacific Legal Foundation—the public interest firm litigating the Garrison case—is also my wife’s employer (though she herself is not working on the case). My interest in this issue—and other similar separation of powers matters—long predates PLF’s involvement.



Ilya Somin

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