There’s nothing like changing the rules at the last second to avoid a well-written lawsuit, and then not telling your allies that you did it. But that is what the Biden administration is doing, trying an end-run in order to avoid being sued over their illegal student loan debt “forgiveness” plan.

As we reported earlier this week, the Pacific Legal Foundation brought forward one of their employees, Frank Garrison, in a lawsuit against the Department of Education and the Biden administration, putting forth the claim that Garrison would be personally harmed by the student loan debt cancellation (due to the tax penalty in his state of Indiana) and that he had no way of opting out of the program (due to being already enrolled in a debt forgiveness program with different criteria). These claims gave Garrison standing to file the lawsuit.

Well, the administration got a look at the lawsuit… and decided to stealth-edit the rules so that people like Garrison would be able to opt out of automatically receiving the cancellation “benefit.”

At the center of the change are borrowers who took out federal student loans many years ago, both Perkins loans and Federal Family Education Loans. FFEL loans, issued and managed by private banks but guaranteed by the federal government, were once the mainstay of the federal student loan program until the FFEL program ended in 2010.”

Today, according to federal data, more than 4 million borrowers still have commercially-held FFEL loans. Until Thursday, the department’s own website advised these borrowers that they could consolidate these loans into federal Direct Loans and thereby qualify for relief under Biden’s debt cancellation program.”

On Thursday, though, the department quietly changed that language. The guidance now says, “As of Sept. 29, 2022, borrowers with federal student loans not held by ED cannot obtain one-time debt relief by consolidating those loans into Direct Loans.”

An administration official tells NPR roughly 800,000 borrowers would now be excluded from relief. Though many more borrowers could end up getting less relief than they were entitled to under the old guidance. These are the roughly 1.5 million FFEL borrowers who also have Direct Loans, which still qualify for cancellation, though their FFEL loans no longer do.”

It’s unclear why the department reversed its decision on allowing FFEL borrowers with commercially-held loans to consolidate and then qualify for debt relief.”

Oh, really? It’s “unclear” why the administration changed that decision? HA HA HA HA HA. Their lawyers can read, and they knew that Garrison had standing and a good enough argument to get a stay placed on the entire scheme.

But now, with these new changes, Garrison and the Pacific Legal Foundation are revising their lawsuit.

U.S. District Court Judge Richard Young ruled that the PLF attorney can no longer be irreparably harmed by the policy since he can now opt out, throwing out his motions for a temporary restraining order and preliminary injunction to halt Biden’s plan.”

Young also granted PLF’s request to amend its complaint following the ruling.”

The judge asked PLF to consider in its new filing if it has standing to file a lawsuit. He also noted that the Education Department’s plan is “still evolving” and asked PLF to consider if the case is ready to be adjudicated.”

“Since Pacific Legal Foundation filed the case on Tuesday, the government has made two staggeringly large changes to the program via quiet revisions to a Department of Education website, which only serves to underscore the lawless nature of this program,” PLF attorney Caleb Kruckenberg said in a statement. “The government clearly had not considered the implications of the program for people like our plaintiff, Frank Garrison.”

The Biden administration’s changes actually caught the left off-guard – after all, changing the rules to affect 800,000 people is kinda a big deal. But the Progressive Caucus quickly sucked it up and got in line, per a statement from Representative Pramila Jayapal.

“In the face of Republican attacks, we understand the White House is prioritizing processing for loans that are publicly held through the Department of Education, which will cover the majority of borrowers, and we appreciate the administration’s transparency in working to ensure that the relief will actually reach the people who need it.”

Ah, back to the old playbook – blame the Republicans! Jayapal is using this argument because six states have also filed a lawsuit against the Biden administration over the student loan debt bailout.

The lawsuit, the second filed challenging the write-off this week, claims that the White House is overstepping its legal bounds by canceling the debt and notes President Biden’s recent comment to CBS News’ “60 Minutes” that the coronavirus pandemic is over.”

Thursday’s challenge, filed in federal court in Missouri, said Biden’s forgiveness plan is “not remotely tailored to address the effects of the pandemic on federal student loan borrowers,” as required by the 2003 federal law that the administration is using as legal justification.”

T​he attorneys general of Arkansas, Iowa, Kansas, Missouri, Nebraska and South Carolina cite Biden’s comments on the news show and point out that despite his claims that the pandemic has ended, the president is using the national health emergency to justify the cancellation of student debt.”

However, Team Biden can’t just keep changing the rules to avoid being sued and having their entire bailout scrapped, as Ed Morrissey points out. That’s not how this works.

PLF plans to return with a new argument on standing, but they’re running out of time. The judge may well argue that the plan is “still evolving,” but it’s also supposed to be implemented as early as today or Monday.”

The “evolving” issue may be a bigger problem in the state case. The rules change may undermine the standing there to some extent, but it bolsters the argument from the states over the Administrative Procedure Act (APA). That is supposed to prevent precisely these kinds of whimsical and arbitrary rule changes, especially at the last minute. Even if a federal judge may decide that their standing argument on the position of banks and loan servicers no longer applies, states have a reliance argument that makes their standing a little more significant in these kinds of challenges to federal policies. The very fact that Biden and his team are clearly making this policy up as they go along without bothering to go through APA-mandated rules change procedures will likely make the judge in their lawsuit think twice about dismissing the complaint over standing.”

PLF and Garrison have an APA argument in their lawsuit as well. They may have an opportunity to appeal for an emergency injunction too, and hope that a higher court puts a halt to the hijinks and forces the Biden administration to follow the law. Stay tuned — this is far from over.”

And that really is the bottom line. The Biden administration and the Education Department knew that they had been caught, so they are trying to change the rules at the last minute. That should be a red flag to any judge – and to the rest of us. This student loan debt “forgiveness” was always meant to be a huge bribe, and now that they are being sued, the number of people who could receive that bribe is being limited. I can’t wait to see how the administration deals with the people who are now going to be excluded from the bailout. I bet it will not be pretty.

Featured image via succo on Pixabay, cropped, Pixabay license