Did Judge Michael Pittman use a novel theory on standing to shut down Joe Biden’s Academia bailout? Arguably, yes … and so far it seems to be working.

As I predicted at the time, the Fifth Circuit took a dim view late yesterday on the Biden administration’s program rather than Pittman’s decision. They denied a request for a stay, leaving in place Pittman’s ruling on the merits that shut down the program until a full appeal can be heard. And that has some unpleasant implications for Biden and his team:

A federal appeals court rejected the Education Department’s request to put a hold on an order from a federal judge in Texas vacating President Biden’s student loan forgiveness program.

The decision by the U.S. Court of Appeals for the 5th Circuit arrives weeks after U.S. District Judge Mark T. Pittman in Texas declared Biden’s policy unlawful, effectively shutting down the program to cancel up to $20,000 in federal student debt for more than 40 million Americans. It upholds Pittman’s order while the court considers the merits of the administration’s appeal. The court indicated it would expedite the matter.

Wednesday’s ruling is the latest legal setback for Biden, who is contending with an injunction in a separate lawsuit involving six Republican-led states seeking to overturn the president’s program. The Biden administration has asked the Supreme Court to intervene in that case before the U.S. Court of Appeals for the 8th Circuit and reinstate the program.

Pittman’s decision is much worse for Biden and his team than the injunction they’re litigating in the Eighth Circuit. Pittman blew through the preliminaries and consolidated the phases of the trial to reach a summary judgment on the merits, which acts as a complete stop to the program rather than a pause from an injunction. By doing that, Pittman got straight to the heart of the matter — its grossly unconstitutional arrogation of exclusive congressional authority to appropriate money:

The Biden administration’s plan is an “unconstitutional exercise of Congress’s legislative power” that also failed to go through normal regulatory processes, Judge Mark Pittman of the Northern District of Texas wrote in a 26-page opinion.

“No one can plausibly deny that it is either one of the largest delegations of legislative power to the executive branch, or one of the largest exercises of legislative power without congressional authority in the history of the United States,” Mr. Pittman, an appointee of former President Donald Trump wrote.

Not only is this obvious, the effort to keep a judge from getting to any consideration of the merits has been even more obvious. The Biden administration has arbitrarily and without notice or review changed the rules of eligibility and the process at times to deny other plaintiffs standing for challenges in other jurisdictions. This has been a prima facie case of violating the Administrative Procedure Act (APA), one of several grounds for the lawsuits in the first place, but Biden & Co don’t care about that. They wanted to delay any court-ordered halt long enough to get the money out first. Pittman’s ruling caught them with their pants down.

However, Pittman’s ruling on standing was somewhat novel. If the Fifth Circuit was inclined to overturn it, they likely would have issued a stay and remanded it back for further argument. The denial of that application not only keeps Biden from disbursing any funds or operating the program at all, it suggests that the appellate court is inclined to uphold Pittman’s view on standing in an appellate ruling on the merits.

That’s not a slam-dunk indicator, though. The court may also have not seen a need for a stay even apart from the standing issue; usually temporary injunctions and stays get issued only when irreparable harm would otherwise result. In this case, the only impact of a denial is that the same people who had the same debt before August 2022 are in the same position as they were then. Plus, with Pittman’s ruling on the merits already in the books and finding the entire program unconstitutional (as well as violating the aforementioned APA), a stay would have been difficult to justify without some review of the merits.

Biden’s team plans to take this to the Supreme Court, along with its setbacks in the preliminaries in the Eighth Circuit:

The White House did not immediately comment on the appellate court’s decision. But in its filing to the Supreme Court, the Justice Department said, “If the Fifth Circuit denies a stay, the government intends to seek relief from this Court.”

“The government” had better plan for disappointment in that effort if they do. This Supreme Court has already rebuked the Biden administration for its abuse of power in areas like eviction moratoria by the CDC as untethered to any congressional authorization. This makes the CDC cases look like a jaywalking ticket in constitutional terms.

They’ll certainly ask for a stay, of course. Politically speaking, Biden has no choice but to pursue this to the bitter end. But guess who they’ll have to ask? The supervising justice for the Fifth Circuit is Samuel Alito. (It’s Brett Kavanaugh for the Eighth Circuit appeal, by the way, which is just as bad for their chances.) Does anyone think that Alito would be inclined to give Biden an opening to commit a grossly unconstitutional appropriation of hundreds of billions of dollars by issuing a procedural stay on Pittman’s decision on the merits?

Biden and his team would have better chances in asking Santa Claus. Which is what Biden wanted to play with this absurd act of imperial presidency in the first place.