Don’t 'Estop' Me Now: Estoppel, Government Contract Law and Sovereign Immunity if Congress Retroactively Repeals Public Service Loan Forgiveness

Abstract

This Article considers whether federal student loan borrowers can bring successful legal challenges if Congress retroactively repeals the Public Service Loan Forgiveness (“PSLF”) program. It addresses whether borrowers at litigation could rely on analogies to the promissory estoppel doctrine or assert equitable estoppel claims to challenge the repeal. In doing so, the Article explores the intersection of estoppel and government contract law with sovereign immunity theories in a way that has never been done before. This topic has been given very little attention in prior literature, so I aim to present its legal issues in a clear way while paying tribute to its nuance.

The Article addresses the hurdles of sovereign immunity and the Sovereign Acts Doctrine, which the borrowers would encounter at litigation. It concludes that, despite likely overcoming these hurdles, in many cases, the plaintiff-borrowers’ government contract law claims would likely still fail to win on their merits. The Article similarly contends that most if not all equitable estoppel claims would likely fail before a court. The Article then offers an alternative proposal to Congress, which would avoid the issues that would arise at litigation, while solving the problems associated with the program and protecting the most vulnerable members of society negatively impacted by a repeal.

Keywords: statutory interpretation, estoppel, constitutional law, government contract law, sovereign immunity, separation of powers, agency law, fiduciary duties, student loan forgiveness, administrative law, COVID-19, legislation, civil procedure, litigation, jurisdiction, subject matter jurisdiction