A Constitutional Republic Demands a Constrained Judiciary: Judicial Overreach in “Vacating” Biden’s Loan Forgiveness Program

Posted in: Constitutional Law

A federal district judge—Mark Pittman, a Trump appointee to the Northern District of Texas—has dashed the hopes and upended the plans of tens of millions of student loan borrowers nationwide who have either been approved, or were about to be approved, for debt relief under the Biden administration’s loan forgiveness program. That program was promulgated by the U.S. Department of Education pursuant to congressional legislation that I’ll discuss shortly.

Judge Pittman held the program null and void and ordered it dismantled. In so doing, he became the first federal judge to conclude that he had jurisdiction to review the program’s validity at the behest of those its opponents had recruited to challenge it. And he went much farther than the U.S. Court of Appeals for the Eighth Circuit had gone when it issued an emergency order temporarily directing the Department to stop processing loan discharges while it reviewed a federal district court’s decision that it lacked jurisdiction to consider the program’s legality. The district court had concluded that the plaintiffs, six Republican-led states, lacked “standing” to pursue their challenge to the program because they could not show that they were genuinely harmed by it. In contrast, Judge Pittman’s decree permanently “vacating” the program in its entirety left the administration no choice but to stop taking loan forgiveness applications altogether on its official website while the Justice Department filed an immediate appeal to the U.S. Court of Appeals for the Fifth Circuit.

I write this comment to demonstrate that, whatever the merits of the arguments that the Biden administration’s program was unlawful—arguments that I find unpersuasive and that, in any event, many (including me) have addressed elsewhere and will address further in due course—Judge Pittman clearly had no jurisdiction even to hear the merits of the plaintiffs’ claims, much less to dismantle the program. By doing so, he usurped the power of both Congress and the Executive Branch.

The central defining feature of the federal judicial power which flows from Article III of the Constitution is that the courts Congress establishes pursuant to that article may exercise only the power to resolve actual “Cases” and “Controversies.” This “cases and controversies” requirement, as explained by the Supreme Court from its inception, entails the fundamental limitation that the Article III “judicial power” is available only to redress concrete injuries suffered by those who invoke it. In the words of the late conservative Justice Antonin Scalia writing for the Court in a 1990 case, “much more than legal niceties are at stake” with these limits on federal court jurisdiction: they are an “essential ingredient of [the] separation and equilibration of powers.”

As the Supreme Court famously explained in Marbury v. Madison in 1803, it is only the historically grounded power to resolve concrete cases and controversies that gives a federal court—within the limits of adjudicating those disputes between parties with something concrete at stake—the extraordinary power to “say what the law is” and bind even the other branches of the federal government to its interpretation. And it is only that axiomatic structural constraint on the power of Article III judges, who wield their gavels for life without ever being held accountable to the people, that makes their unique power compatible with a constitutional republic whose core premise is that of self-government. That’s why Justice Samuel Alito was neither exaggerating nor voicing a remotely controversial view when he wrote in a 2007 case that “[n]o principle is more fundamental to the judiciary’s proper role in our system of government” than the proposition that, without a case brought by a party with standing to invoke its authority who seeks relief from the injury establishing such standing, a federal court is jurisdictionally powerless to proceed. Despite the technical sound of the term “standing,” the principle for which it stands isn’t a matter of legal etiquette or a finicky demand that all the i’s be dotted and the t’s crossed—but rather a basic matter of governmental power and its constitutional limits.

Judge Pittman stepped completely outside this judicial role as constrained by the Supreme Court’s standing doctrine. He thereby not only injured the many lower-income and middle-income borrowers who have justifiably relied on the administration’s program of debt relief but also—and more importantly—further undermined the already frayed rule of law in the United States and contributed to the erosion of the indispensable role of the independent federal judiciary in preserving our constitutional republic.

To add insult to injury, Judge Pittman adorned his adventure in what conservatives used to decry as “legislating from the bench” by righteously insisting that he was just “interpreting the law” as a “mere machine”—an image of bloodless passivity that makes Chief Justice John Roberts’ description of a judge’s role as merely that of an umpire, calling balls and strikes, appear downright activist. Before demonstrating just how far from the judicial role Judge Pittman strayed, I can’t resist noting as well the self-righteousness of his peroration about how “fundamental” it is “to the survival of our Republic that our Constitution be preserved” and why that, in turn, requires us to remember that “in this country we are not ruled by an all-powerful executive with a pen and a phone” (a snide backhand at a comment by former President Barack Obama). One is tempted to ask: But are we to be ruled instead by an all-powerful judiciary with the same instruments but without even a president’s accountability to the electorate?

The failure of this lawsuit to meet the basic jurisdictional requirement that the plaintiffs have standing to seek the relief requested is beyond doubt. The sole complaint of these plaintiffs—one of whom, Myra Brown, was ineligible for $20,000 in loan forgiveness under the debt relief program she challenged because her student loans are all commercially held and the other of whom, Alexander Taylor, was ineligible for $10,000 of such loan forgiveness because he hadn’t received a Pell grant—was that they’d been unable, because of the procedure by which DOE promulgated the program, to argue for more generous eligibility criteria, criteria that might have forgiven $20,000 of student debt owed by each. But the sole relief these plaintiffs sought—a decree invalidating the entire debt forgiveness program and ordering that it be dismantled altogether—would do precisely nothing to achieve the more generous debt relief that they argued they should have been able to urge the DOE to provide. Rather than being lifted by their own bootstraps, these plaintiffs were tripped up by them. They adopted the plainly self-defeating position of pleading with the chief executive to be more generous with the treasury’s money, while simultaneously arguing that the executive had no authority to dip into the public coffers in the first place.

Were they perhaps entitled nonetheless to have DOE promulgate the program through a procedure that would’ve enabled them at least to make a pitch for more inclusive criteria of debt relief even if, in the end, their own argument defeated their claim to have DOE provide any such debt relief, however stingy? Any such argument would be unavailing in light of controlling Supreme Court precedent establishing that a merely procedural right does not suffice to establish Article III standing unless there is some concrete and redressable harm at the end of the process being sought. And it turns out that they had no right in any event to petition DOE for more generous relief under the very law they invoked, the Higher Education Relief Opportunities for Students Act of 2003 (“HEROES” Act), or, for that matter, any other source of federal law. So the procedural “injury” they used to pry open the courthouse door was one the court itself held to be illusory. The door led nowhere.

But if it was the HEROES Act that failed to accord the plaintiffs the right to argue for a more generous program of student debt relief, what if that Act itself was unconstitutional? No such claim has ever been made, none was made in this case, and none could ever succeed. There’s nothing even arguably unconstitutional about that Act.

All that remained was a possible claim that, although the plaintiffs had been denied nothing by way of process to which they could claim any entitlement, and although the law that made that fact crystal clear was perfectly constitutional, perhaps neither that law nor any other gave the Department of Education the statutory authority to forgive student debt at all?

After all, nobody claimed that President Biden, or the Executive Branch he heads, has inherent presidential power to forgive debts owed to the United States, a kind of fiscal parallel to the “pardon power” that Article II, Section 2, expressly confers on the President to “Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” That’s a power unpleasantly familiar to most of us after the one-term presidency of Donald J. Trump, but has no relevance in this situation—where the power of the purse is implicated and where all agree that, because Congress alone wields that awesome power under Article I, Section 8, Clause 1 of the Constitution, an agency providing relief from debt owed to the United States Treasury can do so only where a federal statute so authorizes.

But the argument that DOE was acting beyond its statutory authority here is, on the face of it, quite a stretch. The text of the HEROES Act expressly authorized relief from student indebtedness triggered by the presidential declaration of a Covid-related emergency—a declaration that then-President Trump had made in March 2020 and that President Biden has not rescinded. The only arguments Judge Pittman could muster to overcome that express authority were the rather lame legalism that the Act spoke only of power to “waive or modify” loans and didn’t use the words “loan forgiveness” as such; a legally irrelevant aside that the “COVID-19 pandemic was declared a national emergency almost three years ago and declared . . . by the President as ‘over’” in remarks during a television interview aired ”weeks before the [DOE] program” was officially launched; and the observation that the Education Department’s reliance on a “rarely invoked statutory provision” warranted enough “skepticism” to justify finding it beyond the agency’s delegated power in light of this past June’s Supreme Court decision in West Virginia v. Environmental Protection Authority, requiring that some delegations—those raising “major questions”—must be not only clear but clairvoyant, specific enough to spell out in advance the precise program an agency has put in place pursuant to the law Congress enacted.

Explaining why, in my view, the delegation of loan forgiveness authority to DOE is not in fact subject to the special requirements of that Supreme Court ruling and why, even if it were subject to them, it would meet them, is beyond my aim in this brief comment.

At most—even if I were wrong in that view and Judge Pittman were right in his contrary conclusion about the legality of the plan—that would show only that some other court, in a case properly brought by those who actually have standing to challenge the loan forgiveness program because it injures them in a way that the judicial relief they seek can redress, might vindicate the rule of law by trimming the Education Department’s sails and putting the ball back in Congress’s court to legislate with greater specificity whatever debt relief it deems wise and just. But, as the Supreme Court has unanimously affirmed many times, however strong the merits of a claim, federal courts must always scrutinize and find jurisdiction before considering it.

In the end, the decisive question to which Judge Pittman offered no satisfactory answer was this: What business did he have even opining on, much less ripping out root and branch, a federal debt relief program at the behest of two individuals whose entire grievance—apart from not having been given the opportunity to air that grievance before the ink on the program had dried, an opportunity to which the district court rightly held they weren’t entitled—was that the program they sought to topple in its entirety wasn’t large enough to encompass them?

If these plaintiffs can get the Biden administration’s student debt forgiveness program canceled simply because it didn’t include them, why can’t anyone seeking any kind of debt relief not covered by the program get it dismantled as beyond the authority delegated by Congress?

This wasn’t after all, a case in which the injury of which plaintiffs complained was a denial of the law’s equal protection—the kind of injury that can be redressed either by leveling up and extending greater protection to the plaintiffs or by leveling down and extending less to others. In this case, there is no basis in law for those who borrowed from private lenders or those who otherwise failed to qualify for the program’s full $20,000 in debt relief to make a federal case out of the mere fact that they fared worse in the government’s distribution of its largesse than some others did.

Why, then, did Judge Pittman rule as he did? There is a simple and sad answer: Because he could. It’s reminiscent of what the three dissenting Justices in the Dobbs case said about Justice Alito’s five-Justice majority opinion overruling Roe v. Wade: They did it because they had the votes.

I don’t mean by any stretch to compare the harm done by Judge Pittman’s exercise of naked power to the harm wrought by the Dobbs decision and its repudiation of rights on which generations of Americans had come to depend.

But there’s an important respect in which decisions like Dobbs, which I have criticized elsewhere—and the broader trend towards realpolitik and reactionary rejection of precedent to serve ideological ends—undoubtedly has given permission to judges like Mark Pittman to take their judicial roles far less seriously than they should. Not to mince words: he delivered a brazenly results-driven decision against the administration’s loan forgiveness program at the behest of a couple of named plaintiffs whose only excuse for letting those seeking to end the program use them as plaintiffs is that it failed to include them. You needn’t know the whole story of the Trojan horse to recognize one when you see it.

This necessarily leads one to suspect that the real point of the lawsuit filed in the Northern District of Texas wasn’t to obtain relief from some injury—even the “injury” of feeling envy—that the plaintiffs personally suffered at the hands of the government, but instead to supply warm bodies for a crusade against the government’s policies, a crusade everyone knows has been having difficulty identifying plaintiffs to spearhead its attempt to enlist the federal judiciary in the cause.

It’s legally irrelevant but socially explanatory that the suit, nominally on behalf of Myra Brown and Alexander Taylor, was actually brought by the Job Creators Network Foundation (“JCN”), whose website attacks the loan forgiveness program as “Biden’s bailout”; says it would “accelerate inflation at the worst possible time” even according to what the website calls “Democrat economists”; complains that the colleges attended by the students being “bailed out” charge too much and teach too little while they overpay their “army of administrators” and use the tuition they collect to construct “resort style amenities”; and ends with a conveniently located “HELP BLOCK THE BAILOUT” box that, when clicked, leads directly to a request for a financial contribution to help fund the attack on “government policies . . . getting in the way of the economic freedom that helped make this country prosperous.”

Even assuming a judge agrees with every word of that policy critique, what kind of judge joins that crusade and protests too much by insisting that his personal dislike of the program and of the administration that launched it are of course beside the point?

An Article III judge with integrity should decline the invitation to become an agent in that or any other ideological crusade on the simple basis that judges have been given no constitutional power to play such a role but only the more modest power to resolve actual “cases or controversies” involving the legally cognizable interests of particular parties.

Judges worthy of the robe and, more to the point, of a lifetime appointment to a position of great but constrained power, would decline the invitation. They would do so not because they think there’s something wrong with what some people call “cause” litigation; liberals no less than conservatives often bring cases as part of a political strategy to achieve policy goals and are often driven by overarching ideological agendas when they find genuinely injured plaintiffs who are willing to sign up for the ride through the judicial system not just to remedy their own injuries but to help others achieve broad social and moral objectives. That’s par for the course in a nation awash in lawyers and prone from the beginning, as Alexis de Tocqueville rightly observed, to make most of their biggest disagreements into lawsuits.

But using plaintiffs whose only “injuries,” if any, take the form of not being among the beneficiaries of the very programs they’re asked to help bring down in their entirety takes “cause” litigation to a new level entirely. The technical legal term, I think, is “chutzpah.” That’s what it takes to come into court and say, “Help me, Your Honor, I’m hurting because the agency I’m suing failed to do more of what I claim it had no right to do in the first place.” I’m not asking you to make the agency treat me more favorably; I’m asking you to stop it in its tracks so it doesn’t do for anyone what I say I wish it had done for me.” A lawsuit seeking only schadenfreude as judicial relief.

In the name of limiting government bodies to the powers assigned to them in our system of separated powers, the court is being asked to exercise a power bearing no resemblance to the “judicial power of the United States” as described in Article III and elaborated in over two centuries of judicial decisions.

More is at stake here than the Biden loan forgiveness program, important though that program is. What’s at stake is confining federal judges to their constitutionally limited role of resolving cases and controversies, something I have to hope even the most conservative appellate judges— ultimately including a majority of those on the Supreme Court—will insist on doing. At a time when constitutional democracy and the rule of law undergirding it remain frighteningly vulnerable despite the sigh of relief some (including me) exhaled when the midterm elections ended, little could matter more.

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