We're live at Washington University School of Law in St. Louis! After a check-in with our most faithful corrector, Prof. Ron Levin, we take a deep dive into the two upcoming cases about the legality of President Biden's student loan forgiveness plan. Will explains his theory of why the challengers should lose because they lack standing—but also predicts that the Court is unlikely to agree.
We're live at Washington University School of Law in St. Louis! After a check-in with our most faithful corrector, Prof. Ron Levin, we take a deep dive into the two upcoming cases about the legality of President Biden's student loan forgiveness plan. Will explains his theory of why the challengers should lose because they lack standing—but also predicts that the Court is unlikely to agree.
[Divided Argument theme]
Will: Welcome to Divided Argument, an unscheduled, unpredictable Supreme Court podcast. Recording live, I'm Will Baude.
Dan: And I'm Dan Epps. Where are we, Will?
Will: St. Louis, I think.
Dan: This is our fourth live show, and it's at my home institution, Washington University School of Law here in St. Louis. We have a good turnout. Can the folks in the audience make clear that it's a good turnout?
[audience cheering]
Will: Yeah.
Dan: Dare I say this is a better turnout than we had during our one live show at the University of Chicago.
Will: Fair enough.
[laughter]
Dan: Which we were in a much smaller room. We raided the smallest classroom in the building for that event, but maybe someday we will be promoted. You are here, courtesy of our Federal Society. So, thank you for inviting Will here. Apparently, it's because we needed you to stop the indoctrination of the students into mushy living constitutionalism and all the things you're here to stop.
Will: I do my best.
Dan: Okay, so a few things to talk about today. The first thing we want to do, which would be kind of fun. We normally begin with some listener feedback, dealing with the things that people wish we had said, previous time, and we often do that "emails." Sometimes we get voicemails, sometimes we get songs. But today, we're going to do that live. We have my colleague, professor Ron Levin, who is maybe our most faithful listener, certainly our most faithful corrector.
[laughter]
Dan: On the show, and rather than pen a long missive that we can ignore, he's coming up here to give us some thoughts that we will respond to you in real-time.
Will: [crosstalk]
Dan: Yeah.
Ron: Thank you, gentlemen and members of the audience. I'm glad to be able to make a guest appearance on this podcast, which I do listen to regularly and probably don't offer corrections on as often as I as you suggest or as I might.
Dan: Only every other episode.
Ron: Only every other episode. But I'm here to respond to a couple of comments that were made in the last podcast for those of you who might have missed it. They were discussing the validity of nationwide injunctions and of vacatur under the Administrative Procedure Act, a topic on which I have recently completed the manuscript, which will soon appear in the Notre Dame Law Review. They summarized my views there, and they left me relatively little space to correct errors because they were mostly accurate about what I said, and there isn't much that I can say by way of taking issue with them. There is one point that I want to make for members of the audience, listening audience, and otherwise, who are the Supreme Court mavens and want to know where all the cases stand. The question that we were debating is now before the Supreme Court in U.S. v. Texas.
The host said, "Well, the Court may not reach that issue at all in U.S. v. Texas because there's a standing issue, there's a merits issue that might resolve the case otherwise." I'm going to go a little further out on the limb then they did and predict the Court will not decide this issue in U.S. v. Texas, because we have not only those issues, but there are a few other reasons why the Court, I think, is unlikely to reach the issue.
One is that they could, even if they decide that the challengers have standing and they win on the merits, there is a provision in the Immigration Act in section 1252 which provides a narrower ground on which they could decide the remedy question. There are a lot of question about 1252 during the oral argument, and I think the Court anticipates the possibility that they could decide the remedies issue under that statute rather than something else.
Besides that, some of the Justices who weren't very comfortable with where the discussion was going said, "Well, the vacatur issue wasn't really within the questions presented and the briefing was very scanty." So, I'm not very comfortable with that. Putting all that together, I think the Court won't decide the case, but it wouldn't surprise me if concurring opinions or dissenting opinions got into the subject. That's entirely possible.
Over and above that, I guess if I want to give some feedback, I would respond to some of the comments Will made about how to interpret the APA generally, the Administrative Procedure Act, because I have argued in my scholarship that the APA is routinely construed in an evolving manner, that many of the interpretations the Supreme Court has adopted are far removed from what Congress had in mind when they passed this statute in 1946. I have taken the position that that is a good and solid thing. It doesn't accord with orthodox textualism in many cases, originalism, but it is a necessary adaptation to changing realities in the administrative state. Particularly the rise of rulemaking as a decision-making mechanism has given rise to an impetus to find ways to control rulemaking in the courts.
They have done that by stepping up the level of review so that they give a hard look to what the agency said that wasn't originally contemplated. They expect the facts that the agency relies on to be supported by a contemporaneous record that wasn't the original concept. More relevant to this, if the rule is judged to be illegal, courts now will order that the rule itself be vacated, or they often will order that the rule itself be wiped off the books. That was not readily foreseen at the outset of the APA, largely because rulemaking wasn't used. There were some precedents behind it, but it wasn't the norm, but it's emerged as a credible alternative now because it had to be, of course, that's been my view. It's a decidedly un-originalist take, and I'm here to throw that out there and invite critical feedback from the host if he wants to give any.
Dan: I'm curious about that too, Will, and this is a question about which I don't have strong priors. I'm not an administrative law person so much. I am curious about the extent to which you think there is an emerging consensus in favor of a more formalist APA, textualism, originalism. It seems like that was not necessarily originally the doctrine conservative position. Adrian Vermeule on Twitter the other day quoted Justice Scalia as saying, "It is generally acknowledged that the only responsible judicial attitude towards the APA is one of benign disregard."
Ron: That is one provision of the APA.
Dan: Yes, one particular provision of the APA. I think his views may have evolved, but, he didn't necessarily approach administrative law cases from the perspective of let's go back to first principles. He was willing to interpret things using the evolving set of common law-type principles that emerged. Where are we on that? Where is the official, legal, conservative, trademark view on that?
Will: We'll be putting out a position paper soon. [Ron laughs] Justice Scalia was a special case because he was an administrative law professor before he was a judge or Justice. And some of this is our writing. If he had, in his role as a scholar, in his role as editor of Regulation magazine, and he had this legal realist deregulation hat, sometimes when he talked to the DC Circuit, that was different from his formalist "how would I actually decided these cases as a judge" hat, although as a judge, they sometimes came together, and he sometimes vindicated some of his previous scholarly views. Do you think Justice Scalia himself evolved? He started out as a strong Chevron defender, and I think by the end of his career in life was probably on the verge of recanting that and trying to overrule Chevron. So, I do think there's more-- now when Ron says the thing, he says, "The possibility of this podcast will be quoted in a brief by a state on the other side of the APA case increases," and somebody's saying, "Yes, it's all evolved, but isn't that a bad thing?"
That said, this is not an area that in all these kinds of the statute has gotten outside of its original bounds, the Court never has occasion to hear all those things at once, the issue a general opinion about, here are the eight ways in which administrative law has gone awry, and here's how we're going to get into them. So, will they reconsider Chevron? When they do, will they talk in part about how Chevron is not faithful to the original move of APA? Yes. Will they reconsider hard look review? I'm not sure, maybe actually. But I do think some of that.
I did think there's one divide, which we mentioned on the last show, but I think it's going to be a consistent divide here, which is between the judges who were DC circuit judges and did this for a long time and the judges who didn't. I think just as a practical matter, it's a much heavier lift to go to a Justice and say, "For 15 years, you were violating the law because you weren't a good enough statutory interpreter. You didn't think about these things as the first principles?" Even though as a lower court judge, that's fine, that's what you're supposed to do. I just think that the-- [crosstalk]
Dan: They would have just been following precedent, though.
Will: No, I just don't think it's a heavy lift. It goes back to the 19th century when there were these debates about the legitimacy of territorial and various state governments. There's a concurring opinion by Justice Catron with a question of a territorial government comes up. And he'd been a territorial judge as a fellow judge for, like, 10 years. And he said, "Wow, you're telling me that all those death sentences I ordered as a territorial judge were ultra vires? That's just too much for me to consider." And it's not quite the same, but I think there's some of that going on.
Ron: There is one comment by Justice Scalia that I think is particularly relevant to this discussion. It's really by Professor Scalia in a very well-known article he wrote about the Vermont Yankee case in 1977. He said that some of the innovations that the courts have brought about in the rulemaking area can be understood as restoring the original APA settlement rather than departing from it. Originally, the agencies made their policy decisions mainly through adjudication, and the courts were vigilant about riding herd on agencies that might get out of line. When rulemaking emerged as an alternative, some of the innovations on rulemaking served the same function. Justice Scalia was not very comfortable with that, because it is judicial creativity of a level that he normally would have some qualms about. But he says, "Maybe realistically, that's just the way it has to be under these circumstances."
Will: This was an old argument in defense of the legislative veto, that the court held unconstitutional 30 years ago. There was a classic argument for it that we now let Congress delegate to agencies much more power than we should have originally. The legislative veto, the argument went, is just restoring the original constitutional design. It's just a way of clawing back power from the executive agencies. There's something potentially perverse about letting Congress give the executive branch a huge amount of power and then not letting Congress supervise it. And that argument didn't fly unless it was a veto case. Everybody just struck it down and so we now have a much less supervised executive, but there are times it does.
Ron: Justice Scalia was a leading opponent of the legislative veto in those days, but the view that you described was really well articulated by Justice White in his dissent in the Chadha case. It's a wonderful dissent, even though he didn't get any votes besides his own.
Dan: All right. Well, I want to thank Professor Levin for joining us. We're about to talk about something else you know about. And so it's very imperative to get you off the stage so you can't issue further corrections.
[laughter]
Ron: All right, I'll do that by email.
Dan: I've been begging you to leave a voicemail.
Ron: I can do that.
[laughter]
Dan: In song format?
Ron: So, watch for it.
Dan: Okay.
Ron: Thank you, gentlemen, very much for letting me join you.
[applause]
Will: Dan, I come to your home turf, and you've repay me by ambushing us with our biggest critic.
Dan: Well, Professor Levin is, I think, still the Faculty Advisor to the Federal Society. Am I correct about that? So, he was taking his prerogative.
Will: Fair enough.
Dan: As ambushes go, that could have been a lot worse.
Will: Yeah. [laughs] I was lying awake at night worrying about what was going to happen.
Dan: This is normally the time when we would go on and just talk about other Supreme Court news. There really hasn't been much since the last time we recorded. No opinions, no orders of note, shocking leaks, and revelations. I got nothing. You got anything?
Will: No.
Dan: Okay. I guess we actually have to talk about the law, and we're going to talk about-- I think, an issue that hopefully is near and dear to the hearts of some folks here, which is student loans, and student loan cancellation. Do we have people here who have student loans that might be subject to cancellation under President Biden's recent executive order, purporting to issue the cancellation of a certain amount of student debt? Anybody subject to that? Okay, make some noise.
[applause]
Dan: Yeah. Okay. So, this has real stakes. Are you going to take money away from these folks?
Will: [laughs] I don't have any power, but I'm on their side.
Dan: Okay.
Will: Sort of.
Dan: Okay, so we're talking about two related cases. They're going to be argued in a couple of weeks. Department of Education v. Brown, and Biden v. Nebraska, challenging this executive action that President Biden took through a somewhat roundabout statutory means that we're going to talk about purporting to provide a certain amount of cancellation of student loan debt. As it happens these days, whenever a president does something kind of bold using executive power, there's a bunch of lawsuits filed by people on the other political side, and this happens no matter who the president is. That creates these stand-offs in the courts that are going to happen. So that happened here. We had two cases challenging this executive order. Can we break down what the two cases are, so we've got the Department of Education v. Brown?
Will: So, there are two separate lawsuits. One was filed in the Fifth Circuit by people, one was filed in the Eight Circuit by states. The lawsuit filed in the Fifth Circuit by people is Brown, Ms. Myra Brown, and another person whose name I'm forgetting, who complain essentially that they also would like student loan relief and therefore nobody should get it. So, they complain that the-- [crosstalk]
Dan: Because they feel left out.
Will: Yeah. That they were excluded from the parameters of the program and believe that if the program had gone through notice and comment under a different statutory authority and under a different path, then maybe they would have been included. As people probably know from existing in the world, the question of whether the administration would forgive student loans and if so, who and under what authority and how has something that's been debated and ping-ponged a lot in different ways. Even once the administration announced its program, it's changed several times as people challenged it. The administration would find a way to change the program to deny those people standing so that they could try again. It's not a silly point to say, like, "We'd like to have another round of this," but that's the core claim. A district judge in the Northern District of Texas awarded them relief, and the Fifth Circuit did not stay it. And so the Supreme Court has taken that case.
Dan: This is sort of expedited, right? The court is doing this-- [crosstalk]
Will: This is the [crosstalk] docket.
Dan: Which I think is good. I think that in this case, sometimes it's fair to criticize the court for rushing to intervene here. It seems better for everybody to get this issue resolved.
Will: No, this is not good.
Dan: No. Okay.
Will: [laughs] I mean, if the lower courts are going to grant nationwide relief against a federal program as soon as it happens, then it is good for the Supreme Court to decide whether that is what should happen. There was a time, I'm old enough to remember when administrations did things that were arguably unlawful, and it just kind of bubbled up through the circuits for several years, and the Supreme Court weighed in after a couple of years, and never got time to take a breath. I think that was good for everybody.
Dan: And what do you think is different now? Is the circuit courts are more willing to uphold these kinds of injunctions? Or that district courts are more eager to grant them?
Will: Both. District courts grant relief more readily, and then the circuit courts uphold them, and I guess relatedly, and then the government doesn't take that lying down on that constellation of factors.
Dan: Okay. We're going down a rabbit hole here, but this is interesting. Why is that better? Why is it better to let it wait for a few years? Do you think the circuit courts will come up with better arguments that the Supreme Court will want to learn from?
Will: Some of the time the cases just go away. Sometimes we just get time to not everything has to be on the docket right away. Sometimes maybe it's the circuit courts, maybe it's circumstances, maybe it's just the ability to reflect, having a couple of years to kind of sit with and contemplate a big issue, it's a couple of years, two years at least, between the enactment of the Affordable Care Act and the court finally confronting it, I think it's probably good, better than if that had been decided on day seven or something.
Dan: Don't you think here it might be complicated to have this go into effect, have a bunch of people, I guess, ostensibly relieved of their student debt burdens and then maybe have those reinstated three years later?
Will: I mean, yes, and that's something the Court would have to think about when it got the case when it thought about what kind of relief it wanted to issue and who it wanted to let challenge it. But also, I do worry about the incentives on the political side. There's a cynical theory out there. I'm not saying I believe this theory, but there's a cynical theory out there, that administration does these things knowing full well of the Supreme Court is going to rule 5-4 to 6-3 if they're unlawful. I'm thinking, that's fine. I mean, they'd rather win than lose, I think. But honestly, losing is probably better for them politically because they don't actually have to pay out [Dan laughs] and deal with the consequences, and get to complain about the Court.
Dan: Yeah.
Will: You'd much rather have that happen fast and slow. If you're going to lose and then try to rail against the Court, you want to get all your losses during your presidential term before reelection as much as possible, so you can build up your stock of grievances.
Dan: That's interesting, it actually does point me towards one small piece of Supreme Court-related news, which is the State of the Union. Some of the Justices attended the State of the Union, some didn't. President Biden has not used the State of the Union's to make a big statement about the Court. He doesn't seem as interested in running against the Court as some hypothetical Democratic presidents might be. I don't know whether that-- I'm not saying I don't think you're right about that cynical theory. I think that some of those considerations must come into play. It does seem like this administration is maybe not as interested in actually using that politically.
Will: Yeah, that could be. I mean, we'll see what the conversation is like next year, certainly. President is incredibly-- he's a Washington insider who is very nice people to their faces. With the Supreme Court sitting there, he was not going to be the one to denounce them and then cause them to mouth off, and get caught on camera and get in trouble. He instead, like, went up to them and greeted them very kindly.
Dan: That's fair. Although he also has kind of thrown cold water on the idea of Supreme Court reform. He had this commission that you were on that basically seemed designed to write a long book report and then go away. It was a good book report.
Will: I'm glad they went away. That was good. [laughs] All right. [crosstalk] -the facts.
Dan: Yeah, we got a little bit off track.
Will: The other lawsuit filed by the states was filed here in the Eastern District of Missouri on behalf of Nebraska and a coalition of states, Missouri actually being the most important one, it's going to turn out. They claim standing not as individuals, but as sovereigns, with a range of arguments that we'll talk about in a minute about why the program affects them and their operations. They lost in the district court. The district court did not grant relief. And then on appeal, first before appeal the Eight Circuit granted a temporary nationwide injunction pending appeal, which was especially striking because the district court had concluded that the states didn't have standing. I was talking about that seemed right to me. Initially, the Eight Circuit granted a nationwide injunction pending appeal, without actually taking a position while there was standing like there might be standing, so we're going to enjoin the whole thing, which is for law students, not how you're supposed to do it if you're not [unintelligible [00:21:35] judge and can't make it up. And then they later wrote an opinion and say, "Okay, we've decided there is standing and maybe the program is unlawful. We're not sure, but maybe? So we'll grant nationwide injunction." That is part of the other case that the SG took up to go to court. Now they're before the court, which has to decide both, do any of these people or states have standing to bring these challenges? And if so, is the program unlawful?
Dan: Two pretty important questions and conceptually distinct, although they both have to come out one way for the challengers to win. Logically, in terms of the briefs, they tend to start with standing and then go to the merits, the issue of whether it's unlawful. I wonder if here maybe we should go in the opposite order and talk about the merits and set up the stakes and then go to the standing issue, which I think is maybe more interesting. It's certainly more interesting to you because you have a brief that we're going to talk about this. So, in terms of the merits. The government here has relied on something one of these wonderful statute names. The Higher Education Relief Opportunities for Students Act of 2003, which, just by coincidence, spells out the HEROES Act that provides authorization for Secretary of Education to waive or modify any statutory regulatory provision applicable to the Student Financial Assistant programs. That act generally is what the government is relying on here, what the president is relying on here as authority to issue this student debt cancellation. Does it say, like, the president shall have power to cancel student debt?
Will: No. What it says is that the president has-- Secretary of Education has authority to waive or modify program as maybe necessary to ensure that affected individuals are not placed in a worse position financially in relation to their financial assistance because their status has affected individuals. Now who are affected individuals? Again, the core idea came out of 9/11 and the war in Iraq, the core idea were like deployed service members and people like that who were, something maybe not going to be able to make their student loan payments and they should not be placed in a worse position because of that or a terrorist attack. So, the statute then later 20 U.S.C. 1098 defines an affected individual to be an individual who, A, is serving on active duty during a war or military operation or national emergency. B, National Guard. C, resides or is employed in an area that is declared a disaster area by any federal, state or local official and connected with the national emergency, or D, suffered direct economic hardship as a direct result of a war or other military operation or national emergency as determined by the Secretary."
Dan: Okay, this is interesting. One thing to note about the statute it has this significant benefit for people in the military that may explain something that's mentioned in a number of the briefs in the case, which I kind of enjoy, which is this past Congress by-- there was one no vote, and the no vote was a congressman who misunderstood what was going on and accidentally voted no. And later said, "Oh, I meant to vote yes." At the time, a very popular uncontroversial bill. But there's some language there that at least theory is, it can be interpreted rather broadly. It's not the military stuff, it's the emergency disaster relief aspect.
Will: Yes, if you read the spirit of the statute or the vibe of the statute is mostly military war, etc. But as you get down to the bottom provisions, it seems to say, "Anybody who resides in an area that's a disaster area because of a national emergency or anybody who suffered direct economic hardship because of a national emergency. COVID was a national emergency. The president declared it one.
Dan: And apparently, it's still ongoing.
Will: Well, it depends on who you ask. But for a while, it was a national emergency. Maybe it still is. The government says, "First of all, most people receiving student loan relief reside in an area that was declared a national emergency, namely anywhere in the United States."
Dan: The only people that were not people with the US student loan debt who moved abroad.
Will: Yeah, but they get relief too, don't worry, because they still qualify as having been suffered direct hardships from COVID because it affected the whole world. That's the idea is that while the statute is mostly about war in the military, it does say national emergency. COVID is a national emergency. We are all, in a sense, soldiers in the war on COVID, and so we all are entitled to the same student relief as our men and women abroad.
Dan: All right. Importantly, as I understand it, if the president uses this power, it's unilateral authority. There's not a lot in terms of procedural limits on the president's power to do this, with the secretary's power. The president acting through the secretary.
Will: There are some other authorities that have been floated earlier in the student loan discussions that would have been more likely to have to go through the notice-and-comment process, have other kind of procedural wrinkles because it's a national emergency commander-in-chief style power. This one, if it applies, the president gets to decide.
Dan: Without going too deep into those, do you have any intuition about why they chose this path? It because they thought it would take too long to go through notice and comment? It because they thought that these other procedural paths weren't as strong?
Will: Well, it is one of the sources of the cynical theory that the administration would rather get it done quickly and lose quickly than take a long time to do it and then potentially take a long time to lose. I'm not saying that's the reason.
Dan: But you're not not saying it's the reason? Okay, so we're talking about the merits and so the question becomes, does that allow what happened here? Does that provide authority? I guess there's a couple of questions there. There's a question of what does the statute say? But then there's this other related question lurking about the major questions doctrine. Remind us what that is. We've talked about that last season.
Will: Yeah. The major questions doctrine, which recently graduated from being a series of cases to become a doctrine in West Virginia v. EPA says that, "When statutes are ambiguous, we should assume they weren't intended to give executive branches authority over major questions."
Dan: Big stuff.
Will: Big stuff. Elephants don't hide in mouseholes. The court used this recently in cases about the EPA's authority over climate change in two COVID cases about the CDC's eviction moratorium and the Department of Labor OSHA's mask vaccine mandate. There are other cases tracing back into earlier years, but it's a little bit of skepticism of these broad delegations to the administrative state. And Justice Gorsuch has also said, he really sees this as the doctrine that's designed to help the non-delegation doctrine. But in general, we should be skeptical of all these delegation agencies on constitutional grounds, so at a minimum, we should require a clear statement before Congress does something unconstitutional so that we can really put them on the record that's what they're doing.
Dan: It's kind of a thumb on the scale, maybe even if the better statutory argument is in one direction, this would potentially push it in the other direction.
Will: That's right. It's also supposed to originally just kind of capture the point that like, sure if you look just at a couple of words and say, "Well, is COVID declared national emergency?" "Yes." "Are all 50 states the area where the national emergency was declared?" "Yes." It's supposed to capture the sense, but really the statute that passed unanimously in the context of the wind-down of the war in Iraq is actually this just massive ability to open up the treasury, seems weird.
Dan: Although you never know. I mean, it may be that just the things that pass are vague. Nobody can agree on anything. They want to maybe just leave these questions unresolved. If that result of that is it ends up giving a certain amount of power to future administrations and flexibility, so be it. So, you could believe in one another. You could just say, we don't need to get into major questions because you think that the government loses on the text, just starting out at the outset, talking about merits. We talked about this a little bit. I think we both think that whatever the right answer is, the government has some work to do here. The government is coming from behind here and that if the court is likely to reach the merits of the statutory question, it's maybe hard to believe the government is going to win.
Will: Yeah.
Dan: Why do you think that is?
Will: Well, for government to win, you first have to accept that national emergency includes COVID. Even though last fall the president told us that COVID is over, and even though in the other COVID emergency context, the title 42 so-called, border control policies, the administration has declared the emergency is going to be over in May and is ending those. You have to be a reach on the national emergency question. You then have to further reach on some of the phrases like modify, which sometimes the court has said it's supposed to convey something more limited than massively abrogate and upend, or things like that. And then I think that you have to get over the major questions doctrine problem too. You have to say in addition to these phrases, we have to even read in context, we have to assume that.
Dan: It's not a major question, or if it is a major question, we think it's clear enough.
Will: Yeah. And then, I actually think the biggest problem is that the statute itself says that the purpose of the waiver authority is to make sure that affected individuals are not placed in a worse position financially in relation to their financial assistance because of their status of affected individuals. The Office of Legal Counsel, which issued an opinion about the program, said, "The program is fine so long as you're giving relief to people that's not a windfall." That's people who economically suffered because of the pandemic and otherwise-- and are not being made any better off than they were beforehand. That is definitely true of some people who are seeking student loan relief.
The economy went through all sorts of weird phases, some people have lost their jobs, their ability to work. There are lots of people who suffered, but there are also lots of people whose paychecks did not suffer. Who were able to continue to work and work from home, who are still at a stage where it's hard to say that they are &$10,000 or $20,000 worse off because of the national emergency. Currently, the program makes no effort to figure out who's in which category and just grants relief across the board.
Dan: Although the statutory language doesn't clearly require that. It just says it's supposed to ensure that people are not placed in a worse position financially. That doesn't necessarily rule out the possibility that some people can be placed by the program into a better position, right?
Will: Places he can waive or modify any provision as necessary to ensure that they're not in a worse position.
Dan: It's not actually ensuring that.
Will: It's not necessary to ensuring that if you go for that.
Dan: How much scrutiny do we put in that word?
Will: Yeah. The SG says ensure. Ensure means, we get to be really, really, sure. If we're not sure what's going on, we should win all the ties and anything near a tie. But I think at that point and maybe it's the cumulative effect of all these things, the cumulative effect of kind of is this really the right kind of emergency? Is there still an emergency? Is this really what the statute is supposed to do? Even when you get to this, the argument that this is tenable just kind of runs out.
Dan: Okay. Is there more to say about that? I think that rather than get into a back and forth, it seems like stop with the predictive claim. I agree that for the reasons you've gone through, it's not great to be the government. Anything else? There's also an argument that what the government did is arbitrary and capricious. [crosstalk]
Will: That something apart--
Dan: They did that stuff I think that’s not-- [crosstalk]
Will: On the merits, do you think it would be crazy or lawless or obviously motivated by something other than the law if the court were to say, this exceeds the statute?
Dan: Do I think it would be crazy or lawless for the court to agree with the challengers in the statute? No, I'm not going to say that. I think that it's plausible.
Will: Challenge is plausible.
Dan: Yes, challenge is plausible.
Will: I won't to ask you to go further than that.
Dan: I'm not even sure I have a strong view that going further than that. But I think that we looked at the text. I mean, I think that there are arguments that are plausible for why this note does exceed authority, especially if you take the court's recent case law for granted. If you buy into major questions, or at least accept that as a fixed point.
Will: Sure. I happen to think, I was pretty skeptical of some of the earlier cases. I thought the CDC and the Department of Labor had better arguments than the Court gave them credit for. But this one [laughs] boy, I don't see how that.
Dan: Yeah. And so you're putting this in a larger context of what the Biden administration has been doing, trying to take bold action and then letting itself get smacked down by the Court.
Will: And I'm saying this one it might be a bigger reach than the ones they've already lost.
Dan: Yeah. Does that reinforce your cynical theory that maybe they felt like they got some mileage out of those earlier losses?
Will: It's not my cynical theory. [laughs]
Dan: No, it's not not.
Will: It's just a cynical theory.
Dan: Okay.
Will: Yeah.
Dan: All right. If we get to the merits, this court fairly good chance will say this is illegal. I think if I had to call it, I'd say, this has the feel of a 6-3 case, that is going to divide the court on party lines. Maybe it shouldn't, but we are at a point where there are certain cases I feel like you can just call that they are going to end up with that valence. Maybe it's for purely legal reasons, like the different interpretive approaches that the different sets of Justices bring to the table are logically going to lead to that result. But it does seem like we can call those cases sometimes.
Will: The last time, I think, I confidently claimed the Supreme Court would have a unanimous statutory interpretation case, it was that Foreign Sovereign Immunities case where everybody yelled at Lisa Blatt, and it was clear that I was totally wrong about that. So, I'll go with you this time.
Dan: Okay. Let's see what happens.
Will: Okay.
Dan: But so those are the stakes, if the court is going to get to the merits of this case, let's call it 80%, 90%, that they're going to say it's illegal. They may not get to the merits, though. Why?
Will: All right. This is where the case gets interesting. [laughs] Article III Standing. One of the fundamental principles of separation of powers is that courts, including the Supreme Court, only resolve constitutional issues if there's a case or controversy that falls in the judicial power. One of the things the Supreme Court said about that in the past 50 years is that means that the person who's suing has to have the right kind of injury, the right kind of legal claim they have to have standing. I think and I wrote an amicus brief with my friend and coauthor Sam Bray, that there's no standing in these cases, that there's obviously no standing for the people, and I don't think anybody's going to take that claim seriously. The states, I think there's no standing for them either. That's a more interesting question.
Dan: Will you just quickly do the standing argument that you think no one's going to take seriously? Just explain that. These are the individuals who are mad that other people got relief.
Will: Yeah. One of the core principles of standing is that your injury has to connect to the relief you're seeking. If your injury is that you wanted to be included too, then your relief shouldn't be that nobody gets it. You should be asking for some kind of relief in which you get the thing that you're complaining about.
Dan: Yeah. But there are contexts in which that's not true. In gender discrimination cases involving federal statutes sometimes--
Will: For specific constitutional rights to be free from discrimination, the court has occasionally said, "The injury is not just whether or not you get money, but the injury is being treated unequally." There are occasionally cases, like where the Constitution itself says, "We gave money to white people and not to African Americans, and you, the African Americans, can sue to take the money away from the white people, so that way you'll all be equal together, and that will address your injury." That's only because there's a sort of Constitutional discrimination--[crosstalk]
Dan: [crosstalk] -dignitary.
Will: Yeah.
Dan: Which doesn't work here.
Will: There's no, like, APA dignity now.
Dan: Yeah.
Will: Ron will correct me on that.
Dan: Yeah. That'll be a new theory. So, the more interesting question, states.
Will: Yeah. So, the states--
Dan: Why can't states just sue to say the federal government is doing something illegal? I thought that was just a thing that we allowed to happen now.
Will: Well, I see why you might think that. [laughs] There is a Supreme Court case from 100 years ago called Massachusetts v. Mellon that says "That's not a thing," that says that states don't get to just sue on behalf of their citizens, saying the federal government is acting unconstitutionally. That's something that people in the federal government have a direct relationship. If people are being injured, they could sue the federal government directly. So, we don't allow that to happen. So, states can only sue if they have their own injuries at stake. But 15 years ago, in a case called Massachusetts v. EPA, the Supreme Court, an opinion by Justice Kennedy said, "You know, when states are suing the Article III thing becomes a little looser." States get what's called special solicitude in the standing analysis. The court there allowed Massachusetts to sue on a relatively complicated chain of causation about how the Bush administration's failure to regulate carbon was going to cause specific parcels of land in Massachusetts to go underwater.
Dan: One of the premises of your brief is, that was bad. You are concerned about that. Roman numeral II in your brief is, "This court should reject extravagant theories of state standing." You talk in that section about how Massachusetts v. EPA has emboldened the states, and this is out of control.
Will: Okay, let's put these in three buckets. One way to think about state standing is we're the states. States are special, federalism. We should get to sue. That is not officially the law, although it sometimes does say what's going on. There have been dozens and dozens of suits. This is not a partisan thing, or it's one of these things that switches. It's like the Obama administration get sued-- [crosstalk]
Dan: Partisan whenever it happens, but the bigger picture-- [crosstalk]
Will: The whole pattern is not. The Trump administration was sued by tons of states, different states. The Biden administration was pursued by tons of states. States have now staffed up these incredibly good solicitor general's offices with really smart lawyers who enjoy suing the government and have lots of good arguments.
Dan: And they just pick one state to be the lead. In any given case, there'll be basically a brief joined by, like, most of the blue states and a brief joined by most of the red states.
Will: Sure. Well, and sometimes they can break into a amici. Anyway, but that's not what the states are going to actually argue. The next level argument is something like, "Sure, we're injured. This is going to have a big effect on the economy. We have an economy. Therefore, it's going to have a big effect on us." And in the U.S. v. Texas immigration case, that's pretty close to what Texas's standing arguments look like, where, "This is about immigration. Texas is full of immigrants. Therefore, this affects Texas." It's not like a super specific injury story, but it's a like, "Surely this will have a big effect on us because we include a bunch of stuff." Then, Missouri was the smart member of this coalition, introduced a narrower and more technical argument for standing that if the court says they have standing is the one that they might agree with. We disagree with this in our brief.
Dan: And they only need one. Why is this the rule, if there's like 100 plaintiffs, only one of them needs to have standing?
Will: Well, as long as one of them has standing, then there's a case, and the court can hear the case. That's the idea from the court is thinking, like, "Can we even hear this case?" As long as, maybe the case needs to be relabeled. Missouri v. Biden instead of Nebraska v. Biden or Biden v. Missouri instead of Biden v. Nebraska. Somebody is supposed to be here. Now maybe we should talk about this, too. Maybe the difference between one state having standing and 50 states having standing, should affect the remedy. If 50 states all have standing, a nationwide injunction actually makes sense. If only one state has standing--
Dan: Yeah. This ties back into what we were talking about last time. Can I just pause you right there? If 50 states have standing, and 50 states think it's illegal, maybe a nationwide injunction. What if we think all the states have standing but only 20 of them sue? What do you think the right outcome should be there?
Will: Well, I don't think you should grant relief to people who choose not to sue.
Dan: Okay.
Will: Now, once you get to 20 though, you might say, a 40% of the country injunction might be impractical. So, at some point, you might get to-- [crosstalk]
Dan: Round it up.
Will: Round up. But 40 doesn't round up to 100.
Dan: Okay. But here we might have, at best, in your view, a one state.
Will: Yeah. Missouri has this entity called MOHELA, the Missouri Higher Education Loan Authority, maybe. A state-created corporation that's in charge of servicing student loans. It has standing, arguably. So, in general, one of the plaintiffs people were looking for to bring these cases were people who service student loans, who make money based on the portfolio of loans they're servicing. If the loans get forgiven, they have fewer loans to service, they lose some of their commission, and they have standing. That's a little bit of a bank shot. It's a little bit of like if there were a new land use regulation or something, would real estate agents have standing to complain the commissions are going down. But, okay, maybe.
So the argument is that MOHELA has standing because the state created MOHELA, maybe owns MOHELA, maybe controls MOHELA, and because MOHELA is supposed to pay some of the money it collects to a scholarship fund owned by the state, that gives the state of Missouri standing.
Dan: Your view is not that this is correct, but that this is the least incorrect. Tell us why? Why is it the least, and why is it still wrong.
Will: Okay. Why is it still wrong? MOHELA should sue. [chuckles]
Dan: Yeah. Why do you think MOHELA didn't sue?
Will: Well, somebody asked in the lower courts, MOHELA, "Do you want to become a part of this suit?" MOHELA, to be clear, is a corporation with its own authority to sue and be sued and has its own treasury. Relief against MOHELA's funds don't run into the general fund, so it doesn't violate Missouri sovereign immunity. They wrote this ambiguous letter saying, "We have no interest in being involved in this." I think one theory, we'll call it the non-cynical theory, is that MOHELA is happy to have student loans be forgiven. It's not a predator. It's not in this for the fees. And indeed, the extra money it makes, it's supposed to spend on scholarships to help students get access to school. It's all going to the same ends, even if they're not part of it. If you imagine like a soup kitchen opens up across the street next to the state-run soup's kitchen, the state runs soup kitchen might decide not to sue, even if there was something illegal about that, they might still say, "Look, it's fine. We're happy to have other people in the business." That's the non-cynical theory.
The cynical theory is that if you are in the business of servicing student loans, you really don't want the Department of Education to be mad at you, because they get to make a whole bunch of discretionary choices about your bottom line, could well be buying you off down the line and maybe they're going to get more student loans in the future. Maybe the cynical theory would go, somebody in Washington is putting the screws on student loan servicers to try to keep us out of court.
Dan: Because there are presumably other servicers who might also have.
Will: There are many exist. None have sued.
Dan: So, that didn't happen here. Tell me why we care about this. I mean, your brief is interesting, because it raises a lot of concerns about if we accept this broader view of standing, bad stuff is going to happen.
Will: Again, we've been talking about the general and the small issue. The general issue is separation of powers is about the courts too. So, this is all a separation of powers dispute. Nobody disputes that somebody has the power to forgive student loans. The question is who? The merits complaint is the executive is taking the power that's supposed to go to Congress. My fear is that two wrongs don't make a right. And that if the executive is taking the power that's supposed to go to Congress, that doesn't mean the judiciary should take power, it doesn't have and like ride it to the party. That's just forfeiting the separate powers principles we're supposed to care about.
Dan: Are you worried though? I mean, there's some other briefs in the case on the other side that paint this image of the executive generally and very smartly using examples from both Democratic and Republican administrations as the president has declared himself a king in recent years and is trying to just use this aggressive executive authority to do things that the president wants to do and try to get Congress to do, but cannot.
Will: Yeah.
Dan: Are you worried about that?
Will: Sure, I think that's systematically true, and it got across different administrations. But I also think you might raise some of the same questions about the courts. You might ask, have the courts taken on a bunch of authority that maybe they weren't originally supposed to have and are also becoming a little bit like a king. When the two kings are warring and one of the kings, says, "That king is a usurper, so I should become unbound by law dictator because I will protect you, unlike that other usurper." I don't know, I get a little suspicious.
Dan: So, you're willing to say this court is trying to become a dictator? I'll keep that quote for later.
[laughter]
Will: You said that, that was your quote.
Dan: It was a paraphrase. Can you just talk a little bit more? This is something interesting, which is you argue that the remedy sought here actually influences the standing analysis. I thought that was not an argument I was necessarily expecting to see.
Will: Well, so two things. One, the remedy at issue in this case is the nationwide injunction, which we've talked about before as being controversial. This is another case that reminds us of that. I guess the point is that the nationwide injunction problem and the standing problem are not totally unrelated. So, suppose you think it's true that MOHELA does technically have standing and so Missouri has MOHELA-based standing. Well, the kind of relief you would issue this is just a lawsuit about one student loan servicer in one state who was concerned it was going to lose some business. Might well be to require the federal government to compensate them for the loss of business. Or maybe to require the federal government not to forgive the loans in the MOHELA portfolio. It wouldn't be to not forgive any loans anywhere, including by people who are totally happy with this arrangement.
Dan: Yeah. This goes back to conversations we've had about departmentalism and so forth. But realistically, though, let's say we have a Supreme Court decision that says it's unlawful, but let's really limit the remedy here to this. Won't that just necessarily have to be followed in other contexts and that will have the same effect as a nationwide injunction against student loan cancellation?
Will: Maybe. I mean, I'm not sure. Most of the time or all the time now, that's the way the executive branch would be likely to treat a Supreme Court ruling. But it puts it in the executive branch's hands and we might get to redesign the program again, and we might get to negotiate with a lot of people involved. It just puts a lot more on the table rather than taking it off the table. Again, the mismatch is just further evidence that something has gone wrong with Article III. If this is enough to get a case into court that causes the entire country to move into the Supreme Court's jurisdiction.
Dan: But based on one servicer with one somewhat tenuous theory.
Will: Not even the servicer, the state. The servicer is not sued.
Dan: Yeah, the state [crosstalk] if they don’t the servicer. Yeah, you wrote and op-ed years ago at this point in the New York Times.
Will: I was afraid to bring this up.
Dan: Sorry. Honestly, I don't even remember what the specific action was. But there was something that was it King v. Burwell where there was a danger that the Supreme Court was going to say something the Obama's administration was doing was unconstitutional or it was illegal. You wrote this piece saying, , "Well, a judgment only binds the parties and they should just treat it that way." That made maybe more people mad than almost anything else you've ever written. Why do you want that to happen? Because that argument has been used in other contexts that's very troubling. I mean, that was an argument that segregationists used in fighting against the Warren Court in Brown. I'm not equating you to them but it just to-- [crosstalk]
Will: And it's an argument Lincoln used for issuing passport staff of Americans after Dred Scott because it goes to the question of the Supreme Court's authority. I think it's a mistake to let the Supreme Court become the arbiter of all major political questions in this country.
Dan: What happens in that world then the president refuses to follow it in other contexts and says, "Okay, only limited to the parties." And then it becomes like whack-a-mole. People keep bringing suits and in getting new--
Will: Maybe, so part of the point is a lot of people might not bring suits. Like a lot of people might be fine with it. They might negotiate and work something out. In King v. Burwell, the argument was that the president was illegally providing health insurance subsidies to people and most people did not mind. They were happy to accept subsidies. Maybe some people think Congress or the House should get to suit to enforce the spending clause because it's a special congressional prerogative. I don't agree with that. But if you thought that, then you'd say at least like that's the solution is we have to go through a different institutional litigant. I do think that if the program is unlawful, the next administration might be able to collecting the loans and say the forgiveness are invalid. I'm not sure they would, but I'm not sure they wouldn't.
There's like a range of possibilities and this goes little bit to your jurisdiction stripping article is if you see these things as like all or nothing, like either the Supreme Court gets to resolve it or not, then it sounds like I'm just talking crazy talk. But If you see the system as kind of a lot more back and forth where people make claims or in the shadow of these big legal claims, but some of them work and some of them don't. So, it depends on the facts. It depends on what you're suing over, and it depends on whether Congress has enacted jurisdiction-stripping legislation. There's something else. Things have changed. Things just move in a much more orderly, nuanced way.
Dan: But it certainly would be a system in which there would be much more lingering uncertainty over a much longer period of time, for better or for worse.
Will: Yeah. I think what it means is that if everybody gets on the same page, then there's no lingering uncertainty. If the branches are still-- this is the hill they want to die on, then there's more uncertainty for a while. I guess that's where we should have uncertainty is where we've decided this is the hill we want to die on.
Dan: Yeah. There's a lot of amicus briefs in the case in addition to yours, and we can't talk about them all. But there is one on the other side in support of the challengers in this case filed by my former co-clerk and former Wisconsin Solicitor General Misha Tseytlin, among other lawyers, on behalf of the Empire Center and the Government Justice Center, which organizations I've never heard of but I think go around saying that stuff President Biden does is unconstitutional and illegal.
Will: I wrote a blog post about this brief and I called it the Empire Justice Center, [Dan laughs] which apparently is also an institution. The Empire Justice Center emailed me to tell me they were not the same thing as the Empire Center. [chuckles] I still feel bad about that. So, my favorite heading in this brief is 2C. "The approach that certain amici," that’s me, "urge would lead to a separation of powers calamity with no justification in Article III's text, structure or original meaning."
Dan: That sounds really bad.
Will: Calamitous.
Dan: Yeah. What is the calamity that's being claimed?
Will: I think the big calamity is the thing you refer to that the executive branch across both parties is regularly exceeding any plausible bounds of its power. If we don't let the states let the Supreme Court stop it, nobody will.
Dan: And you're okay with that? Sometimes we have to accept that. Sometimes there's going to be someone in the system who is exceeding their authority and maybe there's nothing another branch can do about it.
Will: Sometimes. Part of our argument, in this case is it's not that nobody can do something about it. It's that you should find the person who is the most directly connected to it and they get to decide whether to sue. That ability to sue includes the ability not to sue. It's more like, "I don't think that every time the executive branch violates the statute that the little red light should go on and the Supreme Court should immediately need to ride in, I don't know, the bat signal or whatever shouldn't go on and force the Supreme Court into micromanaging every legal violation by the executive branch.
Dan: Yeah. Any other things you want to say about that brief in a response given? It really is a kind of a direct attack on yours, which I think shows that people think that your brief there's some good arguments there, and the government cites you in its reply brief seemingly endorsing some of the arguments you made on standing.
Will: Well, I do note sort of sad about this, that I think on the government side of the case, our brief was the only one that you might describe as clearly contrary to type. There are a lot of briefs by the usual suspects in support of their claims, and ours is the only one. Ours even begins by saying we think the program is totally unlawful, but there's no standing anyway, for which we've gotten a lot of flak. But maybe that's-- [crosstalk]
Dan: But from the secret conservative network.
Will: And the people we're supposedly helping. I think some people might say with friends like these,-
Dan: Yeah.
Will: -who needs friends?
Dan: Some other interesting briefs. There's a brief filed by the former judge you clerk for, Michael McConnell, William Barr, and a bunch of other legal conservative luminaries. That's not a standing brief, that's a merits brief, which is doing a lot of historical work and saying, "It's really, really, important to let Congress and not the president control spending, because of all these historical conflicts between parliament and the king and how dangerous this is."
Will: Yeah. What it's really doing is making an argument for why should there be a clear statement of rules for spending statutes like the major questions doctrine, but not the major questions doctrine. It's almost a separate problem that the treasury is doubly protected in the Constitution. Congress has the appropriations power, and then Article I specifies again, no money can be taken out unless it's appropriated and suggests this is a principle that needs to be taken.
Dan: Because you're not exactly like taking money out, you're just preventing money from coming in, right?
Will: Yeah. I think everybody agrees that counts. I mean, actually a bunch of statutes governing, budgetary authority, governing all sorts of budget shenanigans, that's part of why when there's a government shutdown, they actually have to shut some stuff down. They can't just be like, "Well, whatever, I'm going to waive it all because it's a national emergency or something."
Dan: Any other briefs you want to talk about?
Will: I think that's all.
Dan: There's a lot here, and there's a lot of people coming in and saying, "Resolve it on standing. Let's not address standing. The brief will just talk about the merits." The court will have to decide, obviously, at least one of those. If it disagrees with you on standing, it will decide the merits. If it agrees with you on standing, the merits will disappear. I was talking to you earlier and you said, "Yeah, probably what's going to happen is the Court will say that MOHELA has standing and then reach the merits." Do you still believe that?
Will: I do believe that.
Dan: And why do you believe that? Just because you think that your brief was just not quite persuasive enough where you just think there's too much gravitational force for the court in wanting to decide this issue, seeing the president is acting unlawfully?
Will: Yeah, I don't know. I'm just reading the room.
[laughter]
Will: Yeah. I think there's a general problem that the court has got to confront at some point, which is the problem of unilateral disarmament and tit for tat. If you're a conservative Justice who thinks standing is real and who thinks that Massachusetts v. EPA was a big problem. A part of you thinks, like, "Well, they decided Massachusetts v. EPA, they deserve what's coming to them." You can only get behind that principle for so long. At some point you have to ask, is this really how you want to spend the rest of your life? That's what makes me think there might be Justices who are nervous about the unchecked expansion of state standing and who don't totally relish their new job as super OIRA, reviewing everything that the administrative state does. But is this the case where they're going to call that the weakness of the executive's position on the merits, the political shenanigans involved. Don't make this the case that you're, like, hoping to use as your principled case, and then MOHELA makes it easy to decide this one without having to.
Dan: Okay, so last question. We also talked about this a little bit offline. Do you see a world in which there's about to be a renaissance pro-plaintiff movement in standing law, given how strong conservative majority is, that they might feel like, "Yeah, let people sue and we'll say Democratic stuff is illegal and we'll uphold Republican stuff." Not consciously, but could you see movement kind of more in that direction, more people in the writing these kinds of briefs, pushing in favor of broader standing principles?
Will: [exhales] Maybe certainly. We've talked about we see that shift in a lot of phenomena. That said, let's just do a cynical version again. If you're the Supreme Court and you think we're going to be in relatively conservative hands for a very long time, but the lower courts, some of them are pretty dicey, then you might want standing doctrine as an efficient way to keep a bunch of cases out of the Courts.
Dan: And not have to deal with them all yourself.
Will: Right, because if the-- I don't know the Fourth Circuit and the DC Circuit or whatever are relatively liberal courts, if you have very broad standing rules, then you've got to grant a ton of cases from those circuits all the time to stop them. The court doesn't like to grant cases anymore. It's trying to get its docket down to like 21 cases in the shadow docket. So, it doesn't work very well.
Dan: Okay, parting thoughts. You're prepared to-- [crosstalk]
Will: I feel like you've been cagey about your own views. You've been asking me, so do you think they're standing?
Dan: I was fairly persuaded by your arguments and by some of the arguments, but I'm primed to be. It's overdetermined here and that I'm going to be more receptive to what the Biden administration is doing. I can say, "Well, my conservative friend has told me that it's everything that they can't sue," and of course, I'm going to believe that.
[laughter]
Dan: I do have a sense of does this really matter? Don't you think it's possible that what happens the day after that decision is maybe Missouri legislature goes and amends things and orders MOHELA to sue or, maybe the governor can do that or there's some indirect means by which the governor can do that?
Will: Yeah, I mean, look, I don't think a no-standing decision will mean that nobody's ever going to opine on the legality of this program, but little later it might be a different set of relief. I don't know. Things do change.
Dan: All right, so we want to save a little bit of time for maybe a couple of audience questions if there are any. To do that, it's going to be a little complicated, we've got two microphones you're going to need to use. One that goes into the recorder and the other that goes to the room. If you want to have a question, come up to the front and we will set you up with our mic situation.
Ryan: Hey, good evening. My name is Ryan Mclaughlin. I'm 2L here. I was curious, based on the statutory language if you thought because the Biden administration froze student loan payments if that would come into consideration when they're trying to analyze if these affected individuals are in a worse-off position.
Will: Yeah, so this is one of the better arguments is, look, "We've been freezing student loan payments for years and so is the Trump administration and nobody's complaining about that. This is just that." But a lot more. Now. I don't think anybody is actually conceding that those were lawful. I'm sure it'll be a focus of oral argument. It's like, what was that lawfulness so it's different from--
Dan: It's harder to say that it isn't given the presence of two administrations.
Will: Yeah. But it also depends on which arguments you go to. It's easier to say the pandemic wasn't over then, that it is to say it is now. It's easier to say there would be fewer of the big windfall problems than now. I think there are distinctions, but some of the arguments like, this "s a statute for the military, not for COVID, would apply to the pause too and that's going to be an awkward point for challengers."
Dan: Just to clarify, part of the question was, does that bear on the kind of necessary argument? Because you could say, "Well, you don't need this." Folks during the pandemic, they got plenty of relief. Is that sort of argument?
Ryan: Yes.
Will: I think that will definitely play into it. The government will say part of the problem is we paused things for so long, we were like, at some point, we got to get people paying again. We realistically think lots of people are not used to paying, and they're going to be surprised when someone left to pay.
Dan: But if they've started spending on other stuff. They're not going to be willing to cut back. Okay, looks like we have one more.
Scott: Thanks for coming. My name is Scott Montgomery. I'm 2L. My question is about the injury component of standing. My understanding is that monetary damage would typically be enough to convey standing to an individual. I'm curious why that is different for a state. And then you brought up, briefly, Massachusetts v. EPA. To me, I feel like monetary damage could potentially be seen as more concrete than receding shorelines. What would make this come out differently?
Will: I think it's right that that money is an injury, and so is losing your shoreline. The part of the issue in these cases is not just that, but like, is the money itself-- Are we even sure Missouri is on the net going to lose money rather than gain money? How much can we trace the money to, like the specific claim of unlawful action? That's where some of the states want to say, "Look, again, we have a big economy, we have lots of stuff going on. Surely this will affect us." Like Massachusetts want to say, "Look, we have a lot of coastlines. Surely this affects us even if we can't pinpoint it." But usually, in standing we ask for a little more than that. Normally if the government passes some bill and I think it's going to cause inflation, I can't just sue and say, this is going to cause inflation. Inflation involves money; therefore, I can sue. I need to do more to distinguish the harm to me more directly.
Scott: Thank you.
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Dan: All right, thanks very much for listening. Thanks for Federal Society for bringing Will down to indoctrinate young minds. Although I note that they brought you here and then you actually argued for the liberal result in this important case.
[laughter]
Dan: So Federal Society. Leonard Leo is going to want his money back. But thanks for listening. Please rate and review and subscribe to the show. Check out our website dividerdargument.com and we will keep doing these. The pace is going to pick up soon as the opinions start coming out and I'm hoping this will be our most successful and busiest season. Yes, it's our Third Season. Can you believe that?
Will: No.
Dan: Yeah. It's almost our-- I think maybe our second anniversary because we started halfway through the term two years ago.
Will: Yeah. Thanks to the WashU community for all coming out. Thanks for having me.
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