The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Today the Supreme Court issued an order in Biden v. Nebraska, ensuring that the Supreme Court will hear at least one of the legal challenges to the BIden Administration's student loan forgiveness policy.
The order reads:
Consideration of the application to vacate injunction presented to Justice Kavanaugh and by him referred to the Court is deferred pending oral argument. The application to vacate injunction is also treated as a petition for a writ of certiorari before judgment, and the petition is granted on the questions presented in the application.
The Clerk is directed to establish a briefing schedule that will allow the case to be argued in the February 2023 argument session.
The Biden Administration had asked the Court to vacate the injunction entered by the U.S. Court of Appeals for the Eighth Circuit. In its application for a stay, it also suggested the Court could treat the application as a petition for certiorari presenting the following to questions:
(1) whether respondents have Article III standing;
(2) whether the plan exceeds the Secretary's statutory authority or is arbitrary and capricious.
If the justices conclude the plaintiffs have standing and reaches the merits, I would think the Biden Administration faces an uphill battle to save this initiative (and that this would be true even without West Virginia v. EPA adding the major questions doctrine to the mix).
[Note: Post updated and revised to add the questions presented from the SG's stay application.]