Jamelle Bouie raises a very interesting point from Justice Elena Kagan’s dissent in Biden v. Nebraska, where she accuses the majority of the Supreme Court of violating the Constitution by holding the Secretary of Education lacked the authority to cancel student loan debt.

“From the first page to the last, today’s opinion departs from the demands of judicial restraint,” Kagan wrote. “At the behest of a party that has suffered no injury, the majority decides a contested public policy issue properly belonging to the politically accountable branches and the people they represent.”

Her point about issues of standing are quite serious, and the Court’s resolution in favor of Missouri implicates a very real concern that the Court seems to accept or reject standing based not on any cognizable principle, but whether it wants to rule on a case or not. Indeed, many wonder how it could be possible that government can engage in highly controversial action, hugely expensive and almost certainly unconstitutional, and yet nobody has standing to challenge it. It’s a damn good question.

She continued: “That is a major problem not just for governance, but for democracy too. Congress is of course a democratic institution; it responds, even if imperfectly, to the preferences of American voters. And agency officials, though not themselves elected, serve a President with the broadest of all political constituencies. But this Court? It is, by design, as detached as possible from the body politic. That is why the Court is supposed to stick to its business — to decide only cases and controversies, and to stay away from making this Nation’s policy about subjects like student-loan relief.”

While it’s true that the legislative and executive branches of government are the political branches, is it fair to compare the administrative bureaucracy housed within the executive branch with Congress? While the president is elected, and his election is obviously reflective of the “broadest of all political constituencies,” there are hundreds of administrative agencies pulling their levers of power.

Most of the time, we have no clue what they’re doing, as there are just too many agencies engaged in too many actions for anyone to notice. And even if we do notice that some feudal lord runs roughshod over the serfs in her fiefdom, abusing the authority assumed by an activist bureaucrat, what can be done about it?

Are they accomplishing what Congress asked of them, or have they figured out they can do whatever they want and they’re untouchable, buried deep in the morass of government, until the next presidential election when their excesses and damages might be undone. Except not all actions, like loan forgiveness, are undoable, so it’s a fait accompli at monumental expense or pain that no Congress ever authorized.

The court, Kagan concluded, “exercises authority it does not have. It violates the Constitution.”

This is where it gets tricky. If there is no standing, no case and controversy, then the Supreme Court has no jurisdiction to rule on an issue. It has nothing to do with the issue being important or controversial. It’s that the Court can’t issue advisory opinions, prospectively ruling that an action is unconstitutional until there is a challenge before the Court by someone or entity harmed or likely to be directly harmed by it. The harm itself can be prospective, but it must still be real and substantial, not just some flight of fancy to craft an illusory harm to sneak into the courthouse.

But who, then, would be in a position to challenge Biden’s secretary for giving away over $400+ billion of public monies to a debtors who knowingly assumed the debt and alone enjoyed the benefits of their bargain? The knee-jerk answer would be a taxpayer. Any taxpayer. After all, if this forgiven debt, already paid out to colleges and never to be refunded, has to come out of the federal budget, isn’t every federal taxpayer “harmed”?

Generally no.  Taxpayers can’t sue because they don’t like the way their government is spending their money. First, there is no direct nexus between general taxes paid and government expenses. Second, it would make it impossible for government to do anything if each and every taxpayer could take a shot at stopping any federal expenditure of which they disapproved.

It’s a remarkable statement. To say that the Supreme Court can violate the Constitution is to reject the idea that the court is somehow outside the constitutional system. It is to remind the public that the court is as bound by the Constitution as the other branches, which is to say that it is subject to the same “checks and balances” as the legislature and the executive.

Kagan’s dissent, in other words, is a call for accountability. For Congress, especially, to exercise its authority to discipline the court when it oversteps its bounds.

It is a remarkable statement, for that reason as well as others. Bouie qua Kagan is right that the Supreme Court, like any other branch of government, can act beyond its constitutional authority. What if the Court held that sneakers were unconstitutional, and all people must wear shoes with laces? Silly, of course, but also wildly outside their authority. Just because the Supreme Court is final doesn’t mean that it can make any ruling it pleases in the complete absence of lawful authority.

Of course, the same can be said of administrative agencies and the bureaucrats who run them. In more modest days, when agencies stayed within their lanes of responsibility and expertise, it was less of a problem. Indeed, courts showed deference to administrative agencies for just this reason, accepting the premise that the bureaucrats within had special expertise and would wield it only within the agency’s limited wheelhouse.

The courts, therefore, would let administrative agencies do their jobs without interference unless they seized upon an ambiguity in Congress’ authorization to exceed the scope of their authority. Like canceling student debt to keep a campaign promise and pay off some at the expense of others.