Indeed, it certainly appears that Pacific Legal Foundation has both. In today’s Ed Morrissey Show podcast, I speak with Michael Poon, an attorney working on the challenge to Joe Biden’s student-loan debt forgiveness plan on behalf of Frank Garrison. Until yesterday, the debate over whether anyone could get standing to challenge this massive and unconstitutional redistribution in federal court.
In my post yesterday, I covered PLF’s argument in the press release. Poon had more to say on standing as well.
“You can’t just go to court and say, ‘well, I sort of think this thing that the government is doing is unconstitutional or illegal,” Poon explains, “and then say, Can you please fix it? You have to be someone who’s actually harmed.”
The primary harm in this case has been to Congress, which refuses to challenge this, a point Poon and I discuss at length. But who else can demonstrate concrete harm? “There has been a lot of talk about well, who who’s harmed who has standing to get into federal court to challenge this if Congress isn’t going to do it,” Poon says. “And my client is one of I think about a million people who will be harmed by this.”
Ilya Somin weighed in on the question of concrete harm at The Volokh Conspiracy. The harm does not have to be profound, and it doesn’t even really have to be the main motivation for bringing the suit, he points out. Standing is like a ticket for entry, and Somin thinks PLF and Garrison have a good ticket to punch here:
This strategy strikes me as sound. It may seem silly that a plaintiff can get standing based on a relatively small financial loss like this one, but taxpayers as a class are not allowed to get it based on the vastly greater fiscal liability Biden’s plan saddles them with, collectively. But that kind of silliness is built into the Supreme Court’s standing precedents, which allow standing based on even a very small individualized material harm (as little as $1 will suffice!), but deny it even for very large fiscal impacts imposed on taxpayers as a class. If you think this is ridiculous, I agree! In my view, the entire doctrine of standing is extremely dubious, and the Supreme Court should abolish it. But that isn’t likely to happen anytime soon.
Under current standing doctrine, it also does not matter if forestalling the relatively small financial loss he stands to suffer is not Garrison and PLF’s true motive for bringing the case. Public interest firms and other litigants routinely bring cases whose primary purpose is to set a more general precedent rather than to mitigate the damages suffered by a specific client. When it comes to standing doctrine, the plaintiffs’ motives for filing a lawsuit are irrelevant, so long as they do in fact have an “injury” of the right type.
Somin’s biggest reservation is on whether the judge will order a broad injunction to freeze action or only enjoin the Department of Education when it comes to Garrison or other similarly situated potential plaintiffs:
READ RELATED: Matt Gaetz crosses the Rebekah Rubicon
Should the PLF/Garrison lawsuit prevail on the merits, there is likely to be a legal battle over how broad the resulting injunction should be, whether it should be a nationwide injunction against the entire loan cancellation program (as the complaint requests), an injunction limited to a particular geographic area or category of loan recipients (such as people in the same situation as Garrison), or one narrowly focused on Garrison as an individual. In my view, nationwide injunctions are justified in cases like this, where the program being challenged is illegal for reasons that are uniform across the country. But many people—including some conservative judges and legal scholars—disagree.
However, Poon argues that Garrison has more than just standing. He has a real case on a number of points, especially on an unconstitutional provision of the HEROES Act on which the Academia bailout is predicated. The language in the act goes well beyond normal agency authority, Poon points out, allowing the Secretary of Education to actually ignore and violate statutes rather than simply outline boundaries of jurisdiction within statutory framework.
A win on this point would essentially gut any basis for Biden’s giveaway, Poon argues.
What [the HEROES Act] says is, in certain circumstances like where someone is injured by some sort of disaster or whatever, the Secretary of Education can suspend statutes. So it’s saying, you get to ignore what Congress has said, and not only that, you get to replace what Congress has said with your own terms and conditions, so. That is just statutory amendment, right, that is just lawmaking — what Congress is supposed to do in our constitutional system, not the executive. Congress makes the laws, not the executive.
It doesn’t matter that Congress says, oh, you can only you can only do this when you needed to to help this group of people. You don’t get to tell an executive agency, “Go out and like, just change what we said and just you know, make it better.” That’s completely unconstitutional.
This isn’t the only predicate for the lawsuit. Poon and I discuss a challenge based on the Administrative Procedure Act, which is more of a technical argument but usually very effective in requests for injunctions. That may be trickier here since Congress exempted the HEROES Act from the APA, but only for those tasks explicitly ordered by statute and explicitly funded. “Agency actions have to be supported by statute,” Poon says, and “the HEROES act just doesn’t contemplate [spending] half a trillion dollars, 40 million people sort of loan cancellation just wiped off the slate.” That would require separate rulemaking under the APA, and Biden and his team did none of that work.
Be sure to watch the whole interview on this latest episode of The Ed Morrissey Show podcast! Today’s show also features:
- What happened to the Nord Stream pipelines?
- Why doesn’t Don Lemon listen to his own interview guests?
- Mitch McConnell made the smart political and constitutional move on the new, bipartisan, and “modest” Electoral Count Act reform.
The Ed Morrissey Show is now a fully downloadable and streamable show at Spotify, Apple Podcasts, the TEMS Podcast YouTube channel, and on Rumble and our own in-house portal at the #TEMS page!
Source:
