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The State of Ongoing Lawsuits Against Biden’s SAVE Plan – Analysis

student loan return on investment

The Biden Student Loan Payment Pause has been Extended

State attorneys general in 18 states have banded together to sue the Biden administration over the Saving on a Valuable Education (SAVE) Plan, which is slated to cost taxpayers between $250 to $750 billion. The plan was announced last summer as “plan B” after the Supreme Court struck down Biden’s initial unlawful attempt to cancel student loans. The plaintiffs rightly argue that Biden does not possess the legal or constitutional authority to forgive student debt at this scale, crafting a range of arguments and filing a couple of lawsuits to stop the president in his tracks.

While many commentators on both the left and right have agreed that the Biden Administration is exceeding its authority, there has seemed to be a bipartisan consensus for months that they might get away with it. But that’s changing now, as was demonstrated in a recent AEI event hosted by Michael with some of the legal scholars and state attorneys leading the charge to stop SAVE.

Paul Zimmerman, senior counsel at the Defense of Freedom Institute, said that he’s hopeful that one of the lawsuits will succeed. “And I would also say a nationwide injunction seems likely because it would be impossible to implement student loan provisions in some states, but not others. So I think that it would be a total victory,” he said. “I think the writing was on the wall a year ago when the Supreme Court came down with the Nebraska case,” said Sheng Li, litigation counsel at the New Civil Liberties Alliance.

One of the largest hurdles facing litigants at present is the ability to establish standing (basically, proving to a court that you have sufficient connection to and suffered harm from the defendant). This is particularly difficult in cases where the president spends taxpayer money, because there is no such thing as “taxpayers’ standing.” As a result, states and other litigants have developed three main theories of standing to get in front of courts to challenge the plan’s legality and constitutionality:

Here are the two major ongoing lawsuits against SAVE currently making their way through the legal process:

If Biden’s SAVE program allows the executive branch to discharge hundreds of billions of dollars in loans without Congress, what can’t the executive branch do? The survival of this program could have serious negative consequences for maintaining the Constitution’s separation of powers and the future of higher education. There is growing optimism that one of these lawsuits will succeed, but it is far too early for plaintiffs and their supporters to allow themselves too much confidence.

Originally published by the American Enterprise Institute. Republished with permission.

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