Nebraska vs. Biden was something of a surprise. Based on my reading of the factums and pleadings, I have reached the tentative conclusion that Missouri lacks standing. But the opinion of the chief justices was more convincing than I thought. Again, the chief can be extremely slippery with his legal analysis.
I have no idea if the Missouri Attorney General can sue on behalf of the Missouri Higher Education Loan Authority (MOHELA). The majority resolved this question largely on the basis of Arkansas v. Texas, which allowed Arkansas to sue on behalf of the University of Arkansas. Dissent replied that the University of Arkansas had no independent basis to prosecute, while MOHELA has such authority. Instead, dissenters analyzed Missouri Supreme Court decisions that found similar institutions were not instruments of the state. Does the dissent read Missouri law correctly? Who knows?
It seems to me that the correct course here would have been for the Eighth Circuit to certify the matter in the Supreme Court of Missouri. This body could have ruled with authority on the status of MOHELA. Given that the Supreme Court’s decision is sweeping the country (hello national vacatur!), certification would have been appropriate. Instead, we end up with a permanent scan that’s probably good for a ride. Well, if the Biden administration goes ahead with another executive action on student loan relief, Missouri can again say mahalo MOHELA.
Turning to the substance, I think the Court was on fairly solid textualist ground. (I will discuss the major issue doctrine in another article.) The Chief’s discussion of “waive or modify” was far more compelling than Justice Kagan’s attempt to merge “waiver” and “modify” as separate concepts. . Moreover, I don’t even know which provisions of the law were “waived”. The dissent put a lot of weight on the secretary’s ability to change the “terms”. But such a reading would allow the secretary to adopt virtually any change to the statutory program. Of course, the majority does not specify how Secretary DeVoss could have temporarily suspended interest payments. If the majority is right, then the Trump administration acted illegally. I don’t think the recent exercise of executive power is enough past practice to justify the Biden administration’s policy. But that story weakens Nebraska’s case, however much.
Ultimately, the effect of Nebraska v. Biden was pretty broad — millions of well-educated Americans who received federally subsidized loans will have to repay the debt they agreed to repay. But the legal consequences of this decision are quite minor. This decision only applies to a rather obscure pocket of federal law, which had never before been used in this way. In another article, I will discuss the relationship between student loan cases and endless DACA litigation.
