To date, I have not written about President Biden's student loan forgiveness initiative. Why? Because the rule doesn't actually exist! There has been no notice in the Federal Register. Rather, we are left with a series of press releases, fact sheets, and the like. Government by blog post, as I've called it, is not new. The Obama Administration would often modify regulatory regimes, such as the Affordable Care Act, through FAQs and other subregulatory guidance documents. But as best as I can recall, the Obama Administration did not deliberately avoid publishing a new rule to frustrate legal challenges. Yet it seems that the Biden Administration is doing exactly that. Indeed, the Administration appears to be making changes to the policy on the fly for the express purpose of blocking law suits.
Consider the case brought by the Pacific Legal Foundation on September 27. What was the theory of standing? Frank Garrison (a lawyer for PLF) claimed he would face an increased tax burden if his debt was automatically cancelled. When the suit was filed, Garrison did not have to take any steps–the debt would be cancelled automatically. PLF obviously recognized that this policy could be changed. Steve Simpson of PLF told the New York Times:
If borrowers can opt out, Mr. Garrison's claim "will be a harder case for us," said Steve Simpson, a senior attorney at Pacific Legal, which is representing Mr. Garrison. "It would be harder to argue that he's harmed any more."
