Republican state attorneys general and other leading conservatives are considering a slew of lawsuits against President Biden’s plan to cancel some student debt — challenges that could limit or invalidate the policy before it goes into full effect.
According to a person familiar with their thinking who spoke on the condition of anonymity to describe the confidential talks, a number of Republican attorneys general from states including Arizona, Missouri, and Texas have met privately in recent days to discuss a strategy that could see multiple cases filed in different courts across the country.
Other influential conservatives, including Sen. Ted Cruz (R-Texas) and Heritage Foundation allies, are considering their own options as they ramp up criticism of Biden’s debt-relief plan, according to two additional people familiar with the situation. In addition, a conservative advocacy group founded by a major Trump donor said it would sue the policy.
All of the sources cautioned that no decisions had been made, and no lawsuits appeared to have been filed as of Thursday morning. However, a legal battle could have serious financial ramifications for millions of student borrowers, who celebrated last week after Democrats fulfilled a long-standing promise to forgive some of their debt.
According to Biden’s plan, which was announced last week, the government will forgive up to $10,000 in federal student debt — or $20,000 if borrowers also received Pell Grants, which are typically awarded to lower-income students. While the plan is less generous than some in the Democratic Party had hoped for, it still represents a significant financial benefit for many debtors, some of whom expressed fear that they would lose the assistance before it arrived.
Conservatives have criticized the debt relief plan as fiscally irresponsible and unfair to the millions of Americans who never attended college or have already paid off their education loans. Republicans have also claimed that the plan is illegal because it usurps spending authority granted to Congress, claiming that the 2003 law was never intended to give the executive branch such broad, unilateral authority.
Cruz, who ran for president in 2020, has emerged as one of the most vocal GOP opponents of the plan, but he admitted in a radio interview released Wednesday that it is unclear who will have legal “standing” — or cause to challenge the decision — in court. Cruz’s spokesman declined to comment, referring a reporter to Cruz’s remarks in that interview.
Cruz believes that the courts are unlikely to consider an average taxpayer qualified to file a lawsuit. According to the senator, it may be possible to find a plaintiff who earned slightly more than the amount required to qualify for debt forgiveness, but it is “not at all clear that a court would buy that argument.”
In addition, Cruz stated that a current student could file a lawsuit claiming that the debt forgiveness plan will force colleges to raise tuition, unfairly subjecting students to higher fees.
According to some independent legal experts, a legal challenge could be successful. According to Jed Handelsman Shugerman, a Fordham Law School professor, the Justice Department memo justifying the policy based on the coronavirus did not fit the nature of the broad action or the way the White House has defended it. When introducing the plan, Biden focused primarily on repairing a broken higher education system, with less emphasis on providing emergency relief due to the pandemic.
Shugerman emphasized his support for student debt cancellation and urged the administration to change its legal argument so that it is not overturned by the Supreme Court.
According to Adam Minsky, a Boston lawyer who specializes in student debt issues, it is difficult to predict where the Supreme Court will rule on the issue, but the main legal question is likely to be whether any plaintiff has standing to sue. Litigation could result in an emergency injunction halting the policy just as it goes into effect, he said, creating chaos for tens of millions of borrowers — possibly right before the midterm elections this fall.
