I think the OLC student loan opinion is pretty thin — it reads the HEROES Act much broader than I think the text of the law supports. To the extent we care about legislative intent, that certainly isn't there; to the extent we are committed to separation-of-powers and requiring a clear delegation of authority to justify executive action, that's missing too.
Standing is a separate problem, but the doctrine is malleable enough that you can get there eventually.
That said:
Here's my own opinion on the current state of play, to get us started:
I gather there's a legitimate argument to be had about who has the authority to decide what counts as a national emergency under the HEROES Act, and we'll see if anyone is interested in having that argument, but this particular lawsuit [N.B. the one in Texas] is operating not under that but under the patently ludicrous "legal" "theory" that private citizens are harmed by the existence of a federal program for which they personally aren't eligible. Anyone under the age of sixty-five could demand standing to challenge the legality of Social Security on the same basis. The fact that this judge not only didn't nuke the argument from orbit, but actually went ahead and decided it on its merits in a way consistent with right-wing orthodoxy without even addressing the glaring standing question, is a testament to how ideology-poisoned and ruled by high-on-one's-own-supply motivated reasoning this country's so-called judiciary is.
I think this misreads the plaintiffs' standing theory. Their injury is, specifically, the denial of their procedural right to comment on the government rule. The fact that they don't get forgiveness is just the "concrete interest" at stake. The theory is, in essence, that if they got to comment on the rule, the government would have seen comments and reconsidered the program in a way that materially benefited them.
For example, if the government wanted to add $200 to the Social Security check of every individual who received a Pell Grant and started a business in a disadvantaged community for at least three years, it would ordinarily have to go through notice & comment. People who didn't get a Pell Grant or whose business operated for two years would have an opportunity to comment and say it should've been broader. No guarantee that the government would have changed the program — maybe it considers their comments and decides its original course of action was correct — but it's the denial of their right to comment that's at issue, because it's possible the lack of comment denied them some material benefit to which they would otherwise be entitled.
This is all actually pretty standard for challenging an agency's failure to send through notice-and-comment a rule that should've gone through notice-and-comment; courts have historically been willing to be pretty flexible with standing in these sorts of procedural rights cases. (Usually it's not the conservatives being flexible with standing, but that's a separate matter.) If standing is weak on one point, it's redressability; the solution to failure to provide notice and comment is sending it back through N&C, not striking down the program on major questions grounds (which clearly does not give the plaintiffs the money they are ostensibly seeking!).
The perplexing point of the opinion, in my view, isn't the standing theory. It's the part later on when the judge subsequently concludes — agreeing with the government — that the HEROES Act fully exempts the agency from all APA notice-and-comment requirements. On a motion to dismiss, we assume plaintiffs' allegations are correct, but merely alleging that the law contains a procedural requirement that it simply does not contain is... odd. Plaintiffs really shouldn't be able to plead around standing by just alleging the law says something different than what it says.
