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Assuming that President Biden does sign an Executive Order to forgive student loans, would anyone have standing to challenge this action in court? Presumably those whose debt was discharged won't have standing because they didn't suffer any damages but how about Congress or some other government institution?

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  • In case you didn't catch it, this Virginia Law Review article that I linked in my answer to your previous question is all about this. Their answer is that this question lies in a "standing dead zone": "it is likely that no party would have standing to challenge the executive action." Commented Aug 28, 2022 at 16:58
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    I wonder, what would have happened if Biden did not set limits (so, instead of just people earning less than $125k getting a $10k debt cut, people earning millions could get even more than $100k)? It's hard to believe that there is no check on executive orders beyond just protests (and fear of losing the next election).
    – bobuhito
    Commented Oct 24, 2022 at 17:44

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Not less than a full house of Congress, and perhaps Congress as a whole, might have standing. It is hard to see anyone else who would. The law of Congressional standing (the link is to a report of the Congressional Research Service, a policy research arm of the Library of Congress that does research for Congress) is quite involved and is not perfectly consistent and clear. Congress would argue that it has suffered an institutional injury as an institution and perhaps authorize someone to bring suit on its behalf via a joint resolution.

As the Court explained in Arizona State Legislature, an “institutional injury” is an injury that “scarcely zeroe[s] in on any individual member,” but rather “impact[s] all Members of Congress and both Houses . . . equally.”

There is considerable uncertainty regarding how this would be applied which is not really at issue in this case at the present time since Democrats control both houses of Congress and support the President in this policy.

Individuals legislators lack standing to sue in a case like this one.

See also Tara Leigh Grove & Neal Devins, "Congress’s (Limited) Power to Represent Itself in Court", 99 Cornell L. Rev. 571 (2014); Matthew L. Hall, "Standing of Intervenor-Defendants in Public Law Litigation", 80 Fordham L. Rev. 1539 (2012).

A blog entry from a law professor considers the question and comes up with the Congressional standing analysis above, the notion that a loan serving company paid on the dollar value of the loans serviced might have standing (which isn't inconceivable but is a stretch), and finally considers "competitor standing", a minority view that I do not think is sound in these circumstances (because the forgiveness is retroactive only and does not change competitive positions going forward).

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    @MichaelHall What damages? “I didn’t get money there’s no argument I qualify for” aren’t damages.
    – cpast
    Commented Aug 27, 2022 at 0:26
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    @MichaelHall No. The fact that someone else gets a benefit that you do not is not an "injury in fact" that suffices to establish standing to sue.
    – ohwilleke
    Commented Aug 27, 2022 at 1:15
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    @MichaelHall "But surely there is some principal of law that says if the government uses public money for some cause that it must be used equitably?" There is absolutely not any such principle.
    – ohwilleke
    Commented Aug 27, 2022 at 14:05
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    @MichaelHall "Is there such a thing as temporal or categorical discrimination?" No.
    – ohwilleke
    Commented Aug 27, 2022 at 14:49
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    @MichaelHall,Accumulation See this Virginia Law Review article for further reasons why "taxpayers" and "former borrowers" wouldn't have standing. Commented Aug 28, 2022 at 17:06

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