Bonus 35: The Lawlessness of Missouri's Standing in Biden v. Nebraska

Holding that Missouri could challenge the student loan program defies settled constitutional limitations on the Court's power—destabilizing the analytical coherence of standing doctrine going forward

Welcome back to the weekly bonus content for “One First.” Although Monday’s regular newsletter will remain free for as long as I’m able to do this, much of Thursday’s content is behind a paywall to help incentivize those who are willing and able to support the work that goes into putting this newsletter together every week. I’m grateful to those of you who are already paid subscribers, and hope that those of you who aren’t yet will consider a paid subscription if your circumstances permit:

One of the central distinctions between the substance of Monday’s free issues and that of Thursday’s bonus content is the personalization of the latter. To that end, today’s bonus content offers a slightly … spicier … take on one of the last merits decisions the Court handed down during its current Term: The 6-3 ruling in Biden v. Nebraska striking down the student loan program.

But rather than focusing on the merits issue in Nebraska (whether the program was authorized by the HEREOS Act), today’s post looks instead at the more technical (but just as significant) first holding—that Missouri, at least, had standing to bring this case in the first place. That holding is not just inconsistent with decades of case law about the constitutional limits on the power of the federal courts (limits that conservative justices had historically championed); but this inconsistency exacerbates the perception, if not the reality, that the current Court is willing to expand its formal power in order to reach issues that would (and, arguably, should) otherwise be left to the democratic process.

For those who are not paid subscribers, the next free installment of the newsletter will drop Monday morning. For those who are, read on.