In oral arguments Tuesday, the court heard two challenges to the controversial plan from states suing to block and from Job Creators Network Foundation, which is representing student loan borrowers. The challengers say President Biden lacks the executive authority to "forgive" student loan debt, which was also a key issue for the right-leaning justices, but whether the president has the legal ability was just one part of the arguments.
There is also a question of whether challengers have standing. That, says Jack Fitzhenry of The Heritage Foundation, is a key topic justices are going to have to address when they issue their opinions.
"If the court finds that neither set of challengers, the states or the borrowers, has standing, has the right to be in court,” Fitzhenry concludes, “then they simply will not get to the merits. They will not address the legality or illegality of this program."
Ken Klukowski, a constitutional expert at First Liberty Institute, made similar comments this week during a recent appearance on the "Washington Watch" radio program.
"There are real challenges in the briefs at the Supreme Court as to whether these states and these private actors are being injured,” he cautioned “and can be claiming an injury here that is sufficient for Article III of the U.S. Constitution to give them the power to have been the plaintiffs in the trial court on this.”
The case will be thrown out if the justices rule against standing, he pointed out.
“But whether they reach the merits in this case, or in a future case, I think there are entities that do have standing,” Klukowski told the radio program. “We'll see if the court thinks these are two of them."
As for Fitzhenry, he predicts the Court will conclude that both sets of challengers have standing or at least the states have standing, and that will let them reach the merits of the case.