Dear Reader,

The Supreme Court granted certiorari in Biden v. Nebraska and Dept. of Education v. Brown in December of 2022, much later than the Court usually agrees to hear cases for the current term and signaling a matter of urgency and importance. The Justices ordered the parties to file their briefs on much shorter deadlines than usual and set oral argument for the two cases, which had come up through the federal courts in the Fifth and Eighth Circuits, on Tuesday, February 28, 2023.

The Court instructed the parties to brief two issues. First, whether plaintiffs have standing to sue. People can’t randomly file lawsuits over government action they disagree with. To have standing, a party must have been actually injured by the action they are suing over. Second, the Court asked the parties to brief the substantive issues involved in determining whether the statute gives the Department of Education the authority to act here, and whether the plan exceeds the Secretary’s authority or is arbitrary and capricious. 

A little background is in order. The cases challenge President Biden’s August 2022 executive order that would cancel or reduce loan balances for an estimated 43 million borrowers with student loan debt. The urgency that likely convinced the Court to expedite matters was that the existing suspension of loan holders’ repayment obligations because of the Covid pandemic was due to end in December of 2022. The Biden administration’s new loan forgiveness would go into effect then. The suspension of student loan repayment started in March 2020, during the Trump administration, when the then-president declared the emerging coronavirus pandemic a national emergency and invoked the HEROES Act to suspend repayments obligations. The Biden administration carried over that policy.