The Title 42 and student debt cases have a lot in common. Both involve unusual exercises of executive power based on the pandemic; in both cases, red states have challenged the use of that power; and in both cases, standing is going to be a major issue. There are significant differences, however. In the Title 42 case, the states are objecting, not to the use of pandemic powers, but to Biden’s decision to stop using those powers; the standing question in the Title 42 case relates more to the timing of the state objections than to the nature and degree of the injury; the states have a much better argument on the merits of the student debt case; and the Supreme Court is processing the cases differently. The student debt case will be decided in its entirety in short order; the Title 42 case has been broken up and will be slow rolled.
How will these cases be resolved? The Court should find against the states on the standing issue in the student debt case, but it won’t; Biden and the students will lose on both the process and the merits. On the Title 42 case, I can’t believe that even this Supreme Court will find that Biden has some sort of legal obligation to continue to use extraordinary pandemic powers under the changed circumstances, so I expect the government to “win” the case in the end. The Court, however, is clearly determined to put off that decision to the last possible moment in order to avoid inconveniencing the red states. Biden’s “win” will, in reality, be a loss for the asylum seekers, fair play, and the rule of law.