By Adam Liptak
When the Supreme Court hears arguments today in a challenge from six Republican-led states to President Joe Biden’s plan to wipe out more than $400 billion in student debt, the first question it will explore is not whether the plan is lawful. It will be whether the states are even entitled to sue.
For most of American history, partisan lawsuits by states challenging federal programs were rare. That changed after a 2007 Supreme Court decision gave states “special solicitude” in determining when they have standing to sue, and the trend has been amplified by a rising partisan divide among state attorneys general.
“State politicians are using state standing as a way of waging what are political or policy battles against the current administration in court as opposed to through the political process,” said Jonathan H. Adler, a law professor at Case Western Reserve University. “There is good reason to think that this special solicitude stuff has kind of gotten out of hand and it needs to be curtailed. But it’s hard to curtail it in a way that doesn’t come across as opportunistic for one side or the other.”
Partisan lawsuits by states challenging federal actions, which thrust the judiciary into all manner of political controversies and boost its power, have exploded in recent years, said Paul Nolette, a political scientist at Marquette University. He said the surge in such cases started after 2014, in the final years of Barack Obama’s presidency.
“It’s a reflection of the overall increase in polarization in American politics,” he said.
There were 12 multistate lawsuits brought by Republican state attorneys general against the administration in Obama’s first term and 46 in his second term, according to data compiled by Nolette. In former President Donald Trump’s single term, Democratic attorneys general filed 155 such suits. And Republican attorneys general have filed 56 such suits against the Biden administration so far.
The lawsuits have addressed matters ranging from fuel emissions to transgender rights, from the census to the border wall, from migratory birds to horse racing.
Still, states can sue only when they can show they have suffered direct and concrete injuries. And while the Supreme Court may have relaxed that requirement, it has not abandoned it.
In the student loan case, Adler said, “the standing question is probably going to dominate the oral argument.”
The lead lawsuit against the program, which forgives up to $20,000 in debt for millions of federal borrowers, was filed by the six states: Nebraska, Missouri, Arkansas, Iowa, Kansas and South Carolina. They argue that Biden overstepped his authority under a 2003 federal law that allows the education secretary to modify financial assistance programs for students “in connection with a war or other military operation or national emergency.”
Judge Henry E. Autrey of the U.S. District Court in St. Louis dismissed the suit on standing grounds.
“While plaintiffs present important and significant challenges to the debt relief plan,” the judge wrote, “the current plaintiffs are unable to proceed to the resolution of these challenges.”
A federal appeals court blocked the program, focusing on the possibility that a nonprofit entity that services federal loans, the Missouri Higher Education Loan Authority, might fail to make payments to Missouri if the program were allowed to proceed.
In the Supreme Court, the states are also arguing that the loan forgiveness program would cause their tax revenues to fall. “If those arguments are accepted, it would broaden state standing in extraordinary ways,” said Tara Leigh Grove, a law professor at the University of Texas and the author of a law review article on lawsuits states have brought against the federal government.
The 2007 decision, Massachusetts v. Environmental Protection Agency, was a liberal victory that required the Bush administration to address climate change by a 5-4 vote. It included a cryptic phrase, saying that states are “entitled to special solicitude in our standing analysis.”
That elicited one of Chief Justice John Roberts’ most memorable dissents. Relaxing standing requirements “because asserted injuries are pressed by a state,” the chief justice wrote, “has no basis in our jurisprudence.”
Justices Clarence Thomas and Samuel Alito joined the chief justice’s dissent, as did Justice Antonin Scalia, who died in 2016.
Two law professors who say Biden’s student loan forgiveness program is unlawful nonetheless filed a brief supporting the administration and urging the justices to reject the states’ challenge on standing grounds.
“There is danger in countenancing extravagant theories of state standing that have exploded in the wake of this court’s decision in Massachusetts v. EPA,” wrote the professors, Samuel L. Bray of the University of Notre Dame and William Baude of the University of Chicago.
“In the last decade,” they wrote, “state attorneys general have relied on that case’s under-explained language about ‘special solicitude,’ producing a barrage of suits with tenuous standing theories against administrations of the opposing political party. Overbroad readings of that case should be forcefully rejected by this court, lest state standing be allowed to transform the role of the federal judiciary.”
The professors were critical of the only theory of standing endorsed by the appeals court, concerning the Missouri loan authority, saying it “would not be taken seriously in ordinary contexts.”
Questions about state standing also played a prominent role in the November argument over immigration enforcement guidelines issued by the Biden administration that had set priorities for deciding which unauthorized immigrants should be arrested and detained.
Texas and Louisiana sued to block the guidelines, which they said allowed many immigrants with criminal records to remain free while their cases moved forward, imposing burdens on the states’ social service and justice systems.
Lower courts blocked the guidelines. In a Supreme Court brief, Solicitor General Elizabeth B. Prelogar, representing the administration, wrote that something extraordinary was afoot.
“For most of our nation’s history, a suit like this would have been unheard-of,” she wrote. “Courts did not allow states to sue the federal government based on the indirect, downstream effects of federal policies.”
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