The Student Loan Forgiveness Cases Are Set To Answer Major Questions About Standing And Major Questions

This must be like Christmas for Con Law nerds.

Graduate Student Loan Icon – Student Loan Graphics for Education Financial Aid or Assistance, Government Loans, and DebtJurisprudence if you do, jurisprudence if you don’t. Debt accruers and collectors are not the only ones waiting with bated breath over the fate of Biden’s student loan forgiveness — lawyers need answers too. The arguments for and against student loan forgiveness have ranged from hot takes to nuanced arguments about the separations of powers. My favorite hot take was that loan forgiveness is illegal because it disproportionately benefits Black people. Very strong “it’s not enough that I win, they must also lose” energy, if you ask me. The more interesting arguments are located elsewhere — they pertain to standing and the major questions doctrine. From ABA Journal:

On Tuesday, Feb. 28, the court heard oral arguments in two cases—Biden v. Nebraska and Department of Education v. Brown—that raise myriad legal issues and any path taken by the court will have significant consequences.

In Biden v. Missouri, the question is whether state governments are sufficiently hurt to be able to sue. Six states with Republican administrations filed suit. The St. Louis-based 8th U.S. Court of Appeals found the states had standing because the Biden administration’s student loan forgiveness plan would decrease state revenue by encouraging borrowers with commercial loans backed by state-related guaranty agencies to move their loans over to the federal government’s direct lending program through consolidation.

As interesting a legal argument this is, it is not a take down. Sure, loan forgiveness may impact the states indirectly, but wouldn’t the guaranty agencies be the proper party to initiate the suit? Even if they did, you’ve got to admit that the scenario in question is a bit attenuated. The crux of this argument is based on what could happen, rather than an actual injury.

Here’s where the fun starts. If SCOTUS finds standing in either Biden v. Missouri or Dept. of Education v. Brown, they then have to determine how debt forgiveness interacts with the major questions doctrine.

The Biden administration claimed the authority to [forgive loans] under a federal law that was adopted in 2003, after 9/11. The Health and Economic Recovery Omnibus Emergency Solutions Act, also known as the HEROES Act, gives the Secretary of Education the statutory authority to “waive or modify any statutory or regulatory provision applicable to the student financial assistance programs” in response to a “national emergency.” The Biden administration claims the pandemic constitutes the national emergency.

The six states challenging the Biden administration’s plan argue that “this is a major-questions case.” The Supreme Court has ruled, as recently as last June 30 in West Virginia v. Environmental Protection Agency, that a federal agency can act, when there is a major question of economic or political significance, only if there is clear direction from Congress. The challengers argue that this would excuse “$430 billion owed to the Government and cost taxpayers more than a half-trillion dollars over 10 years.” They say “the political significance is likewise undeniable. student loan cancellation is a matter of ‘earnest and profound debate.’” The challengers argue that there was not sufficiently clear authority from Congress for such “an unheralded” act.

This argument has a little more heft to it than Wisconsin’s race shenanigans. It feels like one of those packets you get in a trial team competition. The US wants to lean heavily on the argument that the major question is the wrong question because of the Secretary of Education’s clear statutory authority. The naysayers may want to lean in to the ambiguity of what constitutes a major question — leveraging ambiguity could leave it up to the justices to vote along party lines and Republicans tend not to be the biggest fans of the forgiveness program.


All we can do in the meantime is wait for an outcome and adjust our Con Law outlines accordingly. Godspeed.

Chemerinsky: Student Loan Relief Cases Will Have Lasting Effects Whatever Supreme Court Decides [ABA Journal]

Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord™ in the Facebook group Law School Memes for Edgy T14s.  He endured Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boatbuilder who cannot swim, a published author on critical race theory, philosophy, and humor, and has a love for cycling that occasionally annoys his peers. You can reach him by email at and by tweet at @WritesForRent.