« Chad Squitieri, Christine Chabot and Judge Trevor McFadden on Nondelegation
Michael Ramsey
| Main | Mark W. Smith on the Second Amendment and the 1791/1868 Debate
Michael Ramsey »


Not Every Lawsuit About Student Debt Cancellation Should be Cancelled
Andrew Hyman

On October 20, a federal district court in Missouri dismissed a lawsuit filed by six states that contended that President Biden’s $400 billion student debt cancellation program violates federal statutory law.  The district court said the states lacked standing, and here’s the district court's opinion.  Nina Totenberg, reporting for NPR about another failed lawsuit -- by taxpayers instead of states -- against the same loan forgiveness program, accurately wrote the following:

[T]he challengers, simply as taxpayers, could not show a personal injury as is required to bring a suit. In 2007, the Supreme Court said, "if every federal taxpayer could sue to challenge any Government expenditure, the federal courts would cease to function as courts of law and would be cast in the role of general complaint bureaus." 

So, what’s a country supposed to do when a president allegedly tries to spend a few hundred billion dollars without congressional authorization, and the only significant alleged harm is to taxpayers?  I agree that individual taxpayers, who have only a very small amount of money at stake, do not have standing to make it a real controversy.  But it makes little sense to me that a state cannot represent the collective taxpayers as parens patriae (Latin for “parent of one’s country”), especially where the state is not seeking to void any federal statute, but rather is seeking to stop an alleged violation of a federal statute.  Back in 1923, Justice Sutherland wrote for the Court about the doctrine of parens patriae, pointing out that, where citizens have a grievance against the federal government, it’s the federal government and not the state that is in the role of parent (emphasis added):

It cannot be conceded that a State, as parens patriae, may institute judicial proceedings to protect citizens of the United States from the operation of the statutes thereof. While the State, under some circumstances, may sue in that capacity for the protection of its citizens (Missouri v. Illinois, 180 U. S. 208, 241), it is no part of its duty or power to enforce their rights in respect of their relations with the Federal Government. In that field it is the United States, and not the State, which represents them as parens patriae, when such representation becomes appropriate; and to the former, and not to the latter, they must look for such protective measures as flow from that status.

That makes good sense where a state would challenge the constitutionality of a federal statute, but not so much where a state would merely seek enforcement of a federal statute against an allegedly misguided federal agency or official.  Indeed, the courts have recognized this difference, according to a 2019 law review article by UVA law professors Ann Woolhandler and Michael Collins.  They wrote that the U.S.Supreme Court has:

recognized prohibitions on states’ ability to bring parens patriae suits against the federal government, [but] indicated that such prohibitions apply with lesser force where there is an allegation that an agency is not complying with federal law, as opposed to when a state tries to protect its citizens from the operation of congressional statutes.

When one parent (i.e. a federal agency) is allegedly negligent and acting against another parent (i.e. Congress), that is very different than if a state were suing both parents.  In a system of dual sovereignty it makes a great deal of sense to allow states to have some standing as parens patriae when the executive branch is purportedly disregarding the legislative branch or vice versa, especially if the matter might otherwise evade judicial review.  

I made a similar point on this blog in December of 2020, when I wrote that a state’s lawsuit in federal court, aimed at securing observance of another state’s election statutes, is far less intrusive than a lawsuit attacking the validity of that other states’ election statutes.  It makes more sense for a state to have standing in the former type of situation than in the latter (more meddlesome) type of situation.  But at least in that type of election situation, the matter could ultimately get litigated without any state as plaintiff, in contrast to this situation with the debt cancellation.

In old England, the term parens patriae referred to the monarch’s power as guardian to protect people who were under legal disabilities to act for themselves, including “infants, idiots, and lunatics” as Blackstone put it.  Taxpayers can aptly be added to Blackstone’s list given their disability to have standing in court.