Response to application from respondents Nebraska, et al. — Joseph R. Biden, President of the United States, et al., Petitioners v. Nebraska, et al.
Supreme Court briefNov 23, 2022
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No. 22A444
In the Supreme Court of the United States
J OSEPH R. B IDEN , J R ., P RESIDENT OF THE U NITED S TATES , ET AL.,
Applicants,
v.
STATE OF NEBRASKA, ET AL.,
Respondents.
On Application to Vacate Injunction Entered by the
United States Court of Appeals for the Eighth Circuit
RESPONSE TO APPLICATION TO VACATE INJUNCTION
ERIC S. SCHMITT
Attorney General of Missouri
D. JOHN SAUER
Solicitor General of Missouri
MICHAEL E. TALENT
Deputy Solicitor General of Missouri
MISSOURI ATTORNEY GENERAL’S
OFFICE
Post Office Box 899
Jefferson City, MO 65102
(314) 340-4869
michael.talent@ago.mo.gov
DOUGLAS J. PETERSON
Attorney General of Nebraska
JAMES A. CAMPBELL
Solicitor General of Nebraska
Counsel of Record
CHRISTIAN EDMONDS
Assistant Solicitor General of
Nebraska
OFFICE OF THE NEBRASKA
ATTORNEY GENERAL
2115 State Capitol
Lincoln, NE 68509
(402) 471-2682
jim.campbell@nebraska.gov
Counsel for Respondents
Additional Counsel Listed with Signature Block
TABLE OF CONTENTS
INTRODUCTION ...................................................................................... 1
STATEMENT ............................................................................................ 3
I.
Background on Student Loans......................................................... 3
II.
The HEROES Act ............................................................................. 5
III.
COVID-19 Pandemic and Student Loans ........................................ 6
IV.
The Mass Debt Cancellation ............................................................ 7
V.
Procedural History ......................................................................... 10
ARGUMENT ........................................................................................... 11
I.
The States are likely to succeed on the merits. ............................. 13
A.
The States have standing. .................................................... 13
1.
Missouri has standing due to the Cancellation’s
negative effect on MOHELA’s loan servicing. ............. 13
2.
The States have standing on other grounds................ 18
B.
The Cancellation exceeds the Department’s authority. ....... 22
C.
The Cancellation is arbitrary and capricious. ...................... 32
D.
The injunction is not overbroad. ........................................... 35
II.
The equities support the injunction............................................... 37
III.
If the Court thinks the application raises close questions, it
should leave the injunction in place and grant certiorari
before judgment. ............................................................................. 39
CONCLUSION ........................................................................................ 40
i
INTRODUCTION
The Administration is once again invoking the COVID-19 pandemic
to assert power far beyond anything Congress could have conceived.
Previously, this Court stopped CDC’s eviction moratorium. Ala. Ass’n of
Realtors v. Dep’t of Health & Hum. Servs., 141 S. Ct. 2485, 2490 (2021)
(per curiam). Later, it stayed OSHA’s vaccine-or-test mandate. NFIB v.
OSHA, 142 S. Ct. 661, 666–67 (2022) (per curiam). Now, while President
Biden publicly declares the pandemic over, the Secretary and Department of Education are using COVID-19 to justify the Mass Debt Cancellation—an unlawful attempt to erase over $400 billion of the $1.6
trillion in federal student-loan debt and eliminate all remaining loan
balances for roughly 20 million of 43 million borrowers.
The States of Nebraska, Missouri, Arkansas, Iowa, Kansas, and
South Carolina are likely to succeed in this challenge to the Cancellation.
The Higher Education Relief Opportunities for Students Act of 2003
(HEROES Act), Pub. L. No. 108-76, does not authorize this sweeping
action of great economic and political significance. The Act requires a
real connection to a national emergency. But the Department’s reliance
on the COVID-19 pandemic is a pretext to mask the President’s true goal
1
of fulfilling his campaign promise to erase student-loan debt. Hiding the
real motive, the agency attempts to connect the Cancellation to the
pandemic by citing current economic conditions supposedly caused by
COVID-19. But those conditions are not directly attributable to the pandemic, so the Department has failed to adequately link the Cancellation
to a national emergency.
In addition, the Act’s text and context demonstrate that its purpose
is to keep certain borrowers from falling into a worse position financially
in relation to their student loans. Yet the Secretary uses it here to place
tens of millions of borrowers in a better position by cancelling their loans
en masse. The Act does not allow the Secretary to effectively transform
federal student loans into grants. It is telling that the Secretary has
never before used the Act in this way.
The equities also weigh heavily against granting the application.
The Department can point to no emergency or imminent harm because,
just yesterday, the agency extended the payment pause on student loans
until the summer of 2023. Nor would lifting the injunction have any
practical effect since all the Department’s alleged injuries are independently caused by a separate judgment vacating the Cancellation in
2
another case. In contrast to the Department’s absence of any immediate
injury, lifting the injunction risks unleashing on the States a wave of
harms that could not be undone because of the Cancellation’s “irreversible impact.” App. 5a. Given this lopsided balance, the Court should
deny the Department’s request to vacate the Eighth Circuit’s injunction.
STATEMENT
I.
Background on Student Loans
The Higher Education Act (HEA) creates the Direct Loan Program.
20 U.S.C. §1087a et seq. Direct Loans are held by the Department and
serviced by non-federal entities. See D. Ct. Doc. 5-1, at 194–254. The
Higher Education Loan Authority of the State of Missouri (MOHELA)—
a “public instrumentality” of the State, Mo. Rev. Stat. §173.360, and part
of the Missouri Department of Higher Education and Workforce Development, §173.445—is one of those servicers. See D. Ct. Doc. 5-1, at 194–
254. MOHELA services loan accounts for borrowers in all 50 States. See
id. at 92–93.
The HEA also establishes the Federal Family Education Loan
(FFEL) Program. 20 U.S.C. §1071 et seq. FFEL loans are held by either
the Department or non-federal organizations. See D. Ct. Doc. 31-1, at 7–
3
10. Non-federal entities that hold FFEL loans—such as MOHELA and
the Arkansas Student Loan Authority (ASLA)—use them to secure bonds
and earn income. See D. Ct. Doc. 5-1, at 60, 66–67; D. Ct. Doc. 5-4, at 2,
¶6. Other institutions—like the Nebraska Investment Council (NIC),
which manages that State’s assets—invest in FFEL student-loan assetbacked securities (SLABS). See D. Ct. Doc. 5-2, at 1–2, ¶¶4–7. Federal
law allows borrowers to consolidate FFEL loans, which converts them
into Department-held Direct Loans. 34 C.F.R. §685.220.
The Secretary must “try to collect a claim . . . for money . . . arising
out of the activities of” the Department, which is to say he must collect
outstanding student-loan debt. 31 U.S.C. §3711(a)(1). When Congress
does not want the Secretary to collect on loans, it identifies specific
groups of borrowers eligible for loan cancellation. E.g., 20 U.S.C. §107810 ($5,000 in cancellation for teachers); 20 U.S.C. §1078-11 ($10,000 in
cancellation for service in areas of national need); 20 U.S.C. §1087ee
(percentage of cancellation for certain public service). Relatedly, when
Congress wants to give educational funds that students need not repay,
it establishes grant programs. See 20 U.S.C. §1070 et seq.
4
II.
The HEROES Act
Enacted in 2003, the HEROES Act permits the Secretary to “waive
or modify any statutory or regulatory provision applicable to the student
financial assistance programs” when “necessary in connection with a war
or other military operation or national emergency.”
20 U.S.C.
§1098bb(a)(1). To be authorized, the waiver or modification must also,
as relevant here, “be necessary to ensure that recipients of student financial assistance . . . who are affected individuals are not placed in a worse
position financially in relation to that financial assistance because of
their status as affected individuals.” §1098bb(a)(2)(A).
The HEROES Act’s congressional findings focus on affording relief
to people serving in the “military” for “our nation’s defense.” 20 U.S.C.
§1098aa(b)(1)–(6). The legislative history confirms the goal of relieving
active-duty military from “making student loan payments . . . while they
are away.” 149 Cong. Rec. at H2522 (Apr. 1, 2003) (Rep. Garrett).1
1 See also id. at H2524 (Rep. Isakson) (the Act ensures that the “loan
payments” of troops who “serve us in the Middle East and in Iraq” “are
deferred until they return”); id. at H2525 (Rep. Burns) (“The HEROES
bill would excuse military personnel from their Federal student loan
obligations while they are on active duty”); 153 Cong. Rec. at H10790
(Sept. 25, 2007) (Rep. Kline) (“This bill is specific in its intent to insure
that, as a result of a war or military contingency operation or national
5
III. COVID-19 Pandemic and Student Loans
As soon as the COVID-19 pandemic began, the Department invoked
the HEROES Act to pause payments and interest accrual on Department-held student loans. See 85 Fed. Reg. 79,856, 79,862–63 (Dec. 11,
2020). Congress quickly extended that forbearance through September
2020, see Pub. L. No. 116-136, §3513, and the Department later issued
repeated extensions that were set to expire on December 31, 2022, see 87
Fed. Reg. 61,512, 61,514 (Oct. 12, 2022). Yesterday, however, the Department extended forbearance again, and it is now scheduled to expire 60
days after (1) resolution of litigation over the Cancellation or (2) June 30,
2023, whichever is later. Department’s Press Release on Payment Pause
(Nov. 22, 2022), https://tinyurl.com/5n8z2tj9.
Earlier in the pandemic, Congress considered—but rejected—a
COVID-relief bill that would have discharged up to $10,000 in studentloan debt for some borrowers. H.R. 6800, 116th Cong. §150117(h) (2020).
In recent months, with COVID-19 subsiding, the President has declared
emergency, our men and women in uniform are protected.”); id. (Rep.
McKeon) (“What this bill does is allow the Secretary of Education to
accommodate the unique needs of our student soldiers”).
6
“[t]he pandemic . . . over.” 60 Minutes, Twitter (Sept. 18, 2022), https://
tinyurl.com/2s35maau.
IV. The Mass Debt Cancellation
Meanwhile, on August 24, 2022, the Department announced its
Mass Debt Cancellation. D. Ct. Doc. 5-3, at 4. The Administration explained that President Biden had “promised to provide targeted student
debt relief” “[d]uring the [2020 presidential] campaign” and was now
“following through.” Id. at 29. In an accompanying memorandum, the
Department revoked its prior view that it cannot cancel student-loan
debt, see Memorandum from Rubinstein to DeVos 6 (Jan. 12, 2021),
https://tinyurl.com/3kp29ys6 (Jan. 2021 Memo), and claimed such power
for the first time, see 87 Fed. Reg. 52,943, 52,943–45 (Aug. 30, 2022).
The Congressional Budget Office estimates that the Cancellation
will eliminate $430 billion of the $1.6 trillion in federal student-loan debt.
CBO Sept. 26, 2022 Letter at 3, https://tinyurl.com/2p95x8kk. Other
analyses project that the costs will approximate $519 billion. D. Ct. Doc.
5-3, at 23. Of the 43 million borrowers who still owe money, see CBO
Sept. 26, 2022 Letter, supra, at 3, over 40 million will be eligible for the
7
Cancellation, and nearly 20 million “will have their debt completely
canceled,” D. Ct. Doc. 5-3, at 31.
The Cancellation applies to Department-held loans, including
Direct, FFEL, and Perkins. 87 Fed. Reg. at 61,514. To be eligible, borrowers must have had “an Adjusted Gross Income (AGI) below $125,000
for an individual taxpayer or below $250,000 for borrowers filing jointly
. . . in either the 2020 or 2021 Federal tax year.” Ibid. (emphasis added).
These income cutoffs include most borrowers because 93 percent of
American households earn less than $250,000 annually. See Household
Income Percentiles, DQYDJ, https://tinyurl.com/vrks5mps. The Department will cancel up to $20,000 for eligible borrowers who received a Pell
grant and $10,000 for those who did not. 87 Fed. Reg. at 61,514. Borrowers can apply until December 31, 2023. D. Ct. Doc. 31-1, at 5.
The Cancellation’s details initially appeared only on the Department’s website. At that time, the website told “borrowers with privately
held federal student loans,” including FFEL loans, that they can receive
the Cancellation “by consolidating these loans into the Direct Loan program.” D. Ct. Doc. 5-3, at 9. This incentivized borrowers to consolidate
those loans. See D. Ct. Doc. 5-4, at 2, ¶7. Then on September 29, 2022—
8
the day the States filed suit—the Department edited its website to say
that borrowers with non-federally held FFEL loans can no longer become
eligible “by consolidating . . . into Direct Loans,” but that those who
“applied to consolidate” before that date remain “eligible.” D. Ct. Doc. 311, at 9. The Department has never explained this change, but by all
accounts, it was a ploy to avoid judicial review because entities holding
and investing in FFEL loans were “widely seen . . . inside . . . the
administration[] as presenting the greatest legal risk” to the Cancellation. Michael Stratford, Biden Administration Scales Back Student
Debt Relief for Millions Amid Legal Concerns, Politico (Sept. 29, 2022),
https://tinyurl.com/2hexr9cf.
The Department did not publicly disclose its justification for the
Cancellation until it filed the August 24 Rationale Memo in this case.
App. 36a–48a. That filing shows that the Secretary received the Memo
on August 24 and authorized the Cancellation at 9:25 am that same
morning. Id. at 32a–33a. The Department eventually published the
HEROES Act waiver authorizing the Cancellation on October 12. 87 Fed.
Reg. at 61,512.
9
V.
Procedural History
On September 29, the States sued and moved for a preliminary
injunction. App. 13a. On October 20, the district court denied the States’
motion and dismissed the case for lack of standing, id. at 9a–27a, but the
court recognized that the States raise “important and significant challenges” to the Cancellation, id. at 26a. The next day, after the appeal was
docketed with the Eighth Circuit, the States moved for (1) an injunction
pending appeal and (2) a temporary administrative stay, which the court
promptly granted. Id. at 7a.
On November 14, the Eighth Circuit enjoined the Cancellation.
App. 6a. The court’s analysis focused on Missouri’s standing. Id. at 3a–
5a. It began by detailing the close relation between Missouri and MOHELA, explaining that Missouri’s legislature created MOHELA as a
state entity, charged it with “support[ing] the efforts of public colleges
and universities,” and required it to contribute to the Lewis and Clark
Discovery Fund (LCD Fund) “in the State Treasury.” Id. at 3–4 (citations
omitted). Given those facts, “MOHELA may well be an arm of the State,”
the court said. Id. at 4 (collecting cases that so held). But even if not, the
Cancellation’s negative “financial impact on MOHELA . . . threatens to
10
independently impact Missouri” by preventing MOHELA from satisfying
its remaining obligation to pay $105.1 million into the LCD Fund. Ibid.
Because Missouri has standing, the court did not “address the standing
of the other States.” Id. at 5a.
The Eighth Circuit then concluded that the States have raised “substantial questions of law” about the Cancellation’s legality. App. 5a. The
court also found that “the equities strongly favor an injunction considering the irreversible impact the [Cancellation] would have as compared
to the lack of harm an injunction would presently impose.” Ibid. To “provide complete relief to the plaintiffs,” the court explained, it could not
limit the injunction to certain States or loans.
Id. at 6a.
Because
MOHELA services “$168.1 billion in student loan assets” nationwide and
is “one of the largest” servicers of federal student loans, the court determined that there is “no workable path in this emergency posture for
narrowing the scope of relief.” Ibid.
ARGUMENT
The Court should not vacate the Eighth Circuit’s injunction. The
Department passingly argues (at 14) that courts issuing injunctions must
announce plaintiffs’ likelihood to succeed on the merits and that the
11
Eighth Circuit’s finding of “substantial questions of law” is not enough.
The agency claims that Winter v. Natural Resources Defense Council,
Inc., 555 U.S. 7, 20 (2008), and Munaf v. Geren, 553 U.S. 674, 690 (2008),
establish this rule. They do not.
Winter addressed the standard for “irreparable harm” rather than
the standard for assessing the merits. 555 U.S. at 21–22. And the error
in Munaf was the lower court’s failure to “consider[] the merits” at all.
553 U.S. at 690–91. Tellingly, after Winter and Munaf, many circuits—
like the Eighth Circuit here—continue to approve injunctions where
plaintiffs present substantial questions on the merits and the equities
strongly favor them. See, e.g., Citigroup Glob. Mkts., Inc. v. VCG Special
Opportunities Master Fund Ltd., 598 F.3d 30, 34–38 (2d Cir. 2010) (“If
the Supreme Court had meant” for Winter or Munaf “to abrogate the
more flexible standard for a preliminary injunction, one would expect
some reference to the considerable history of the flexible standards
applied in this circuit, seven of our sister circuits, and in the Supreme
Court itself”). The Eighth Circuit thus committed no error here.
Though there is no basis to do so, if the Court remands over this
issue, it should enter an administrative stay forbidding the Department
12
from discharging loans under the Cancellation while the Eighth Circuit
takes up the injunction request again. The Department has already approved “16 million applications” from borrowers, and their debts are set
“to be discharged” as soon as “allowed by the courts.” Secretary’s Nov.
11, 2022 Statement, https://tinyurl.com/2cewh6h4.
Permitting those
discharges to occur would immediately inflict the irreparable harms that
the States are trying to avoid through this suit.
I.
The States are likely to succeed on the merits.
A.
The States have standing.
States are “entitled to special solicitude in [the] standing analysis.”
Massachusetts v. EPA, 549 U.S. 497, 520 (2007). Contrary to what the
Department says (at 15–18), Missouri has standing. And though the
Department ignores it, the other States have standing too.
1.
Missouri has standing due to the Cancellation’s
negative effect on MOHELA’s loan servicing.
The Cancellation will unquestionably inflict financial harm on MOHELA. Last fiscal year, MOHELA earned $88.9 million for “servicing 5.2
million” Direct Loan accounts. MOHELA FY 2022 Financial Statement
at 4, https://tinyurl.com/4chp295x. This revenue is determined by how
many accounts MOHELA services—the more it does, the more it earns,
13
see D. Ct. Doc. 5-1, at 197–98, 209–10—and the Cancellation will “completely” eliminate the debt of nearly half of all borrowers (20 of 43
million), D. Ct. Doc. 5-3, at 31. Because many borrowers have more than
one account, see D. Ct. Doc. 5-1, at 403–07, MOHELA is at risk of losing
at least half of the Direct Loan accounts it services, which equates to
millions of dollars of revenue per year. These financial losses to MOHELA harm Missouri in three ways.
First, MOHELA is a state agency, so financial harms to it are harms
to Missouri. MOHELA and Missouri are organizationally and politically
intertwined. MOHELA is “a public instrumentality” of Missouri that performs “essential public function[s].” Mo. Rev. Stat. §173.360. It is part
of the Missouri Department of Higher Education and Workforce Development. §173.445. Its board members are state officials appointed by the
State with the advice and consent of the legislature. §173.360; see also
§173.005.2 (coordinating board); §173.007 (commissioner of higher
education). And State law establishes MOHELA’s powers. §173.385.
MOHELA and Missouri are also financially linked. MOHELA owes
$105.1 million to the State’s LCD Fund, see MOHELA FY 2022 Financial
Statement, supra, at 20; Mo. Rev. Stat. §173.385.2, which supports
14
“capital projects” at Missouri’s “public colleges and universities,”
§173.392.2. And MOHELA is authorized to provide student financial aid,
see §173.385.1(6), (19), which it does by giving millions of dollars per year
to three scholarship programs run by its parent agency, the Department
of Higher Education and Workforce Development, see MOHELA FY 2022
Financial Statement, supra, at 10 (listing the programs).
Overall, the connection between MOHELA and Missouri is so close
that, as the Eighth Circuit noted, the agency “may well be an arm of the
State” for sovereign immunity. App. 4a (collecting cases reaching that
conclusion). Because of this tight relationship, financial injuries to MOHELA are harms to the State. See Arkansas v. Texas, 346 U.S. 368, 370–
71 (1953) (injury to state university is injury to the State); Alaska v.
Chevron Chem. Co., 669 F.2d 1299, 1302–03 (9th Cir. 1982) (similar).
The Department’s contrary arguments are unavailing. It is irrelevant that MOHELA “was not involved with the decision of the Missouri
Attorney General’s Office” to bring this suit, Appl. 16, because the
Attorney General alone decides whether to sue “to protect the rights and
interests of the state,” Mo. Rev. Stat. §27.060. And it is not dispositive
that MOHELA may “sue and be sued,” Appl. 16 (quoting Mo. Rev. Stat.
15
§173.385.1(3)), because bestowing that power on a state entity does not
mean that it is separate from the State. See State Highway Comm’n of
Wyo. v. Utah Constr. Co., 278 U.S. 194, 199 (1929) (connecting a state
entity to the State without addressing “the effect of the general grant of
power to sue or be sued . . . or its withdrawal”).
Second, Missouri has declared everything MOHELA does to be “the
performance of an essential public function.” Mo. Rev. Stat. §173.360.
Those functions include advancing vital state goals like ensuring that
Missouri “students have access to student loans” and providing funds to
Missouri’s “public colleges and universities.” Ibid. MOHELA’s revenue
funds those essential state functions. See §173.385.1–.2. The Cancellation’s negative effect on MOHELA’s finances injures Missouri by impairing MOHELA’s ability to carry out its state functions or forcing the State
to appropriate money to make up the deficit.
Third, Missouri has standing because the Cancellation’s adverse
“financial impact on MOHELA . . . threatens to independently impact
Missouri” by preventing or delaying MOHELA’s contributions to “the
LCD Fund,” App. 4a, and the State’s student aid programs, see MOHELA
FY 2022 Financial Statement, supra, at 10. MOHELA affirms that “[a]ny
16
available funds above its operating needs and reasonable reserves are
devoted . . . to student financial aid.” C.A. Rule 28(j) Letter, Attach. 1
(Nov. 1, 2022). By hindering MOHELA’s contributions to the State, the
Cancellation inflicts a classic financial injury on Missouri. See Czyzewski v. Jevic Holding Corp., 137 S. Ct. 973, 983 (2017). This conclusion
rebuts the Department’s third-party standing arguments (at 16–17) because it establishes that even if MOHELA and Missouri are separate
entities, Missouri may raise harms to its own interests. See Clinton v.
City of New York, 524 U.S. 417, 431 (1998) (concluding that the city’s
claim did not “belong[] to the State” even though the State would have
had a similar claim of its own).
The Department objects (at 17–18) to this standing theory as relying on “[g]uesswork” about “how MOHELA will react” to the Cancellation. Not so. The States rely on MOHELA’s legal obligation to contribute to the LCD Fund, see Mo. Rev. Stat. §173.385.2, MOHELA’s
demonstrated practice of funding the State’s student financial aid programs, see MOHELA FY 2022 Financial Statement, supra, at 10, and
“the predictable effect” that decreasing MOHELA’s revenue will have on
17
those contributions to the State, see Dep’t of Com. v. New York, 139 S. Ct.
2551, 2566 (2019). That goes far beyond “mere speculation.” Ibid.
The Department also asserts (at 17) that if Missouri has standing
to sue because of the harm to MOHELA, then “banks could sue anyone
who causes financial harm to their borrowers.” This analogy is off base.
Missouri created MOHELA, tasked it with performing essential functions for the State, selected its board members, and bestowed power on
it. That is entirely unlike the relationship between banks and their borrowers. Accordingly, the Department’s dire predictions about these kinds
of far-reaching implications miss the mark.
2.
The States have standing on other grounds.
Direct Tax Losses. Nebraska, Iowa, Kansas, and South Carolina
have standing because they face a “direct injury in the form of a loss of
specific tax revenues.” Wyoming v. Oklahoma, 502 U.S. 437, 448 (1992).
Those States use federal adjusted gross income (AGI) to determine state
taxable income. See Neb. Rev. Stat. §77-2714.01(1); Iowa Code §422.7;
Kan. Stat. Ann. §79-32,117(a); S.C. Code §12-6-40. Normally, federal
AGI includes student loan discharge. See 26 U.S.C. §61(a)(11). But
18
under the American Rescue Plan Act (ARPA), federal AGI excludes those
discharges until January 1, 2026. See 26 U.S.C. §108(f)(5).
Without the Cancellation, hundreds of thousands of loans are set to
be discharged each year after January 1, 2026, under the Department’s
existing income-driven repayment (IDR) program. See U.S. Gov’t Accountability Office, GAO-22-103720, Federal Student Aid: Education
Needs to Take Steps to Ensure Eligible Loans Receive Income-Driven
Repayment Forgiveness 16 fig. 3 (2022), https://tinyurl.com/bdhzca8z.
These discharges will produce significant tax revenue for the States. But
the Cancellation will erase over $400 billion in student-loan debt now
when the States are not taxing loan discharges. That directly reduces
the loans available for discharge once the States resume taxing it and
thus will shrink the States’ revenue.
Even if the States could respond to the Cancellation by changing
their tax laws, that does not erase the injury. States have a sovereign
right “to create . . . a legal code.” Alfred L. Snapp & Son, Inc. v. Puerto
Rico ex rel. Barez, 458 U.S. 592, 601 (1982). Forcing States to exercise
that power by upending their preferred system for calculating state
taxable income is itself an injury, and “the possibility that a plaintiff
19
could avoid [one] injury by incurring [another] does not negate standing.”
Texas v. United States, 809 F.3d 134, 156–57 (5th Cir. 2015), aff’d by an
equally divided court, 579 U.S. 547 (2016). That is why many circuits
have declined to “treat[] the availability of changing state law as a bar to
standing.” Id. at 157; accord California v. Azar, 911 F.3d 558, 574 (9th
Cir. 2018).
Consolidation Harms. Missouri, Arkansas, and Nebraska have experienced other harms because the Cancellation predictably prompted
the widespread consolidation—and thus elimination—of non-federally
held FFEL loans. See D. Ct. Doc. 5-4, at 2, ¶¶6–7 ($5–6 million of ASLA’s
$100 million in FFEL loans were consolidated after the Cancellation was
announced). Missouri and Arkansas hold FFEL loans, and Nebraska invests in SLABS backed by FFEL loans. Eliminating those loans “reduc[es] the return on [the States’] investments” and thus inflicts an
“actual financial injury.” Franchise Tax Bd. of Cal. v. Alcan Aluminum
Ltd., 493 U.S. 331, 336 (1990).
While the Cancellation now excludes consolidation as a pathway to
eligibility, that does not foreclose standing. The States can still press
their consolidation injuries for two reasons.
20
First, the Department
changed its website’s language on consolidation and published the
HEROES waiver reflecting that change after suit was filed, so this is a
mootness (not standing) issue. See Davis v. FEC, 554 U.S. 724, 734
(2008) (standing focuses on “when the suit was filed”).
This sort of
“voluntary cessation” does not moot the States’ claims, Trinity Lutheran
Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2019 n.1 (2017),
especially because the Department is attempting “to insulate [its] decision from review,” Knox v. Serv. Emps. Int’l Union, Loc. 1000, 567 U.S.
298, 307 (2012). Second, the States can still obtain relief for their consolidation harms. For example, the Department could be ordered to direct
borrowers who recently consolidated that they must pay part of their
interest to the entity that held their prior FFEL loan. Such partial relief
suffices for standing. See Massachusetts, 549 U.S. at 526.
Quasi-Sovereign Harms. The States also have “a quasi-sovereign
interest in the health and well-being—both physical and economic—of
[their] residents.” Alfred L. Snapp, 458 U.S. at 607. MOHELA furthers
Missouri’s quasi-sovereign interest in higher education through its “essential public function[s]” of providing funding to students and the State’s
public universities. Mo. Rev. Stat. §173.360. When the Cancellation
21
reduces MOHELA’s revenue, it impairs Missourians’ access to high education and harms that quasi-sovereign state interest.
B.
The Cancellation exceeds the Department’s authority.
A reviewing court shall “hold unlawful and set aside agency action”
“in excess of statutory . . . authority.” 5 U.S.C. §706(2)(C). The Department claims authority under the HEROES Act. That Act allows the Secretary to “waive or modify any statutory or regulatory provision applicable to the student financial assistance programs” when “necessary in
connection with a . . . national emergency” “to ensure that recipients of
student financial assistance . . . who are affected individuals are not
placed in a worse position financially in relation to that financial
assistance because of their status as affected individuals.” 20 U.S.C.
§1098bb(a)(1)–(2)(A). This text does not authorize the Cancellation.
Insufficient Connection to Emergency. To begin, the Act requires a
real connection to a national emergency. The first clause demands that
the action be “necessary in connection with a . . . national emergency.”
20 U.S.C. §1098bb(a)(1). And the next specifies that borrowers must face
“a worse position financially in relation to [their] financial assistance
because of ” the national emergency. §1098bb(a)(2)(A) (emphasis added).
22
This statutory text requires more than the Department’s “but-for
causation” standard. See Use of the Heroes Act of 2003 to Cancel the Principal Amounts of Student Loans, 2022 WL 3975075, at *14 (O.L.C. Aug.
23, 2022). Because the but-for “consequences of an act go forward to eternity,” Holmes v. Sec. Inv. Prot. Corp., 503 U.S. 258, 266 n.10 (1992), that
interpretation produces absurd results, allowing COVID-19 to justify the
mass elimination of debt for years to come, see United States v. XCitement Video, Inc., 513 U.S. 64, 69 (1994) (counseling against absurd
constructions). In fact, the Department has argued that “in ten years,
[it] could still use the HEROES Act to forgive student loan debt because
of the COVID-19 pandemic if the Secretary deems it ‘necessary.’” Brown
v. U.S. Dep’t of Educ., No. 4:22-CV-0908-P, 2022 WL 16858525, at *13
(N.D. Tex. Nov. 10, 2022). Read correctly, however, the Act demands
proximate or direct causation, meaning COVID-19 must be the “cause
that directly produces” the need for relief. Proximate Cause, Black’s Law
Dictionary (11th ed. 2019); see, e.g., Holmes, 503 U.S. at 265–68 (interpreting “by reason of” in RICO to require proximate causation).
The Cancellation fails that requirement. The Department tries to
justify the program by citing “current economic conditions.” App. 37a–
23
39a (capitalization omitted). But those conditions are not primarily attributable to COVID-19. They are influenced by myriad other factors, including the President’s fiscal policies and geopolitical events. Indeed, the
Department admits that the cause of these economic conditions includes
“other factors (such as Russia’s invasion of Ukraine).” Id. at 38a. The
Department’s “indiscriminate approach” to economic conditions “fails to
account for [the] crucial distinction” between economic risk from COVID19 and economic “risk more generally.” NFIB, 142 S. Ct. at 666.
The Department also argues that the end of forbearance supports
the Cancellation. App. 37a. If, by this, the Secretary is suggesting that
the end of forbearance always leads to defaults, then the Department (not
COVID-19) caused the problem. Or if he thinks that resuming payments
will risk harm to borrowers because of the broader economic conditions,
the payment pause adds little to the analysis. Either way, the Department did not adequately connect the Cancellation to the pandemic.
Cannot Put Borrowers in Better Position by Discharging Principal.
The Cancellation also falls because the HEROES Act does not authorize
the direct discharge of loan principal. Relief must be “necessary” to keep
borrowers from falling into “a worse position financially in relation to”
24
their student loans. 20 U.S.C. §1098bb(a)(2)(A). Yet this direct discharge
of principal does not simply prevent borrowers from slipping into a worse
position but rather places them in a better one.
The Act’s obvious focus on addressing temporary challenges like a
“military operation or national emergency,” 20 U.S.C. §1098bb(a)(1),
further demonstrates that it is “incompatible” with the permanent cancellation of principal. See Utility Air Regulatory Group v. EPA, 573 U.S.
302, 322 (2014). Similarly, allowing the Secretary to erase loan principal
conflicts with Congress’s explicit distinction between student loans and
student grants. Compare 20 U.S.C. §1070 et seq. (grant programs), with
20 U.S.C. §1087a et seq. (Direct Loan Program). Blurring the division
between these two different forms of student aid would bring about “a
fundamental revision” of the statutory scheme. See MCI Telecommunications Corp. v. AT&T, Co., 512 U.S. 218, 231 (1994).
The Department argues (at 22–23) that other uses of the HEROES
Act have “had permanent and substantial economic effects.” This is
beside the point because none of the past examples directly erased loan
principal. Some of them—such as the COVID-19 payment pause and
expanded eligibility for defenses to repayment—might have the indirect
25
effect of reducing the principal that a borrower will ultimately pay. But
those are incidental effects of actions not aimed at eliminating principal.
Excessive Scope. The Cancellation’s scope—both who it covers and
the amount of debt discharged—also exceeds the Secretary’s authority.
The Secretary has not limited the Cancellation to only “affected individuals.” 20 U.S.C. §1098bb(a)(2)(A). While the Department argues (at 19)
that this class includes every borrower in the world, nothing in the
Department’s materials purports to find that all borrowers have suffered
“direct economic hardship” due to the pandemic. §1098ee(2)(D).
In addition, the Department has failed to respect the Act’s requirement that “affected individuals” be at risk of facing “a worse position
financially in relation to” their loans. 20 U.S.C. §1098bb(a)(2)(A). Many
eligible borrowers face no such peril. For instance, the program includes
high-income borrowers whose annual earnings have increased substantially since 2020, such as married individuals whose households earned
between $200,000 and $250,000 in 2020 and more than $350,000 in 2021.
No one can seriously contend that these borrowers need this relief.
The Department responds (at 24) by arguing that it need not provide relief “on a case-by-case basis” and that it may seek to “ensure”
26
affected individuals are not worse off. 20 U.S.C. §§1098bb(a)(2) & (b)(3).
But these statutory features at best permit modest imprecision. They do
not excuse the Department’s failure to tailor the eligibility requirements
or relief amount at all.2
Nondelegation. Under the Department’s reading of the HEROES
Act, it has the power to cancel student-loan debt, of any amount, see Appl.
22 (claiming the Secretary may “eliminate . . . borrower’s obligation”), for
“[a]ll student-loan borrowers,” see id. at 19, even a decade after a national
emergency begins, see Brown, 2022 WL 16858525, at *13. This interpretation raises serious nondelegation concerns, see Panama Refining Co. v.
Ryan, 293 U.S. 388, 429–30 (1935), which counsels against accepting it,
see Clark v. Martinez, 543 U.S. 371, 380–81 (2005) (avoidance doctrine).
Major-Questions Doctrine. The major-questions doctrine further
reinforces the Department’s lack of statutory authority. It applies to
agency action that addresses issues of immense “economic and political
significance” and demands that the agency show “clear congressional
2 As explained in the amicus brief of Utah, Ohio, and others (at Section
II.B.3.), the Cancellation also exceeds the Secretary’s authority because
it does not “waive” or “modify”—but rather rewrites—the provisions
referenced in the Federal Register notice. See Fed. Reg. at 61,514.
27
authorization.” West Virginia v. EPA, 142 S. Ct. 2587, 2608–09 (2022).
A “plausible textual basis” will not do. Id. at 2609.
The major-questions doctrine applies here for four reasons. First,
as the Department conceded below, see D. Ct. Doc. 27, at 41, it is claiming
authority to resolve a matter of great “economic and political significance,” West Virginia, 142 S. Ct. at 2608. With estimated costs between
$430 billion and $519 billion, see CBO Sept. 26, 2022 Letter, supra, at 3;
D. Ct. Doc. 5-3, at 23, the economic significance is plain, see Ala. Ass’n of
Realtors, 141 S. Ct. at 2489 (per curiam) (applying the doctrine when the
effect was $50 billion). So is the political significance. In recent years,
Congress has “conspicuously and repeatedly declined to enact” many student-loan discharge bills, West Virginia, 142 S. Ct. at 2610, including one
aimed at COVID-19 relief. E.g., H.R. 2034, 117th Cong. (2021); H.R.
6800, 116th Cong. §150117(h) (2020); S. 2235, 116th Cong. (2019).
Second, the Department claims an “unheralded power.” West Virginia, 142 S. Ct. at 2610. Until now, the agency has not “relied on the
HEROES Act . . . for the blanket or mass cancellation . . . of student loan
principal balances.” Jan. 2021 Memo, supra, at 6; see also The Biden
Administration Extends the Pause on Federal Student Loan Payments,
28
Congressional Research Service, at 2–3 (Jan. 27, 2021), https://tinyurl.
com/yxwm4eyj (“[B]efore the COVID-19 pandemic, Secretaries generally
invoked the HEROES Act relatively narrowly to grant relief to limited
subsets of borrowers, such as deployed military service members or
victims of certain natural disasters”). Illustrating just how unprecedented this is, the Department has not erased loan principal in its “[p]ast
experience[s] with student loan borrowers transitioning back into repayment after long periods of forbearance,” App. 37a—even though it says
that this circumstance requires the Cancellation here.
The Department denies (at 27) that it is asserting novel authority,
citing the COVID-19 payment pause’s $100 billion cost as a comparator.
That the Department’s best comparator is an action that did not directly
discharge loan principal—implemented during the pandemic’s lockdown
phase for a fraction of the Cancellation’s $430 billion cost—shows that
the agency has no real analogue.
Third, “the sheer scope of the [Department’s] claimed authority”
confirms the major-questions doctrine’s application. Ala. Ass’n of Realtors, 141 S. Ct. at 2489. As explained above, the Department asserts
power under the Act to cancel student-loan debt, of any amount, for any
29
borrower, even a decade or more after a national emergency begins. See
p. 27, supra. In other words, the agency believes that it has authority to
erase all $1.6 trillion in student-loan debt, effectively converting the
student-loan program into a student-grant program. Courts rightly greet
such “assertions of extravagant statutory power” with skepticism. West
Virginia, 142 S. Ct. at 2609 (cleaned up). That the Department also asks
(at 26–27) for judicial deference to the Secretary’s actions under the Act
further underscores the vast power it claims.
Fourth, the Cancellation conflicts with the HEA’s overall structure
and the HEROES Act’s legislative findings. The HEA not only distinguishes loans from grants, but also establishes specific classes of borrowers eligible for loan discharge. See p. 4, supra. Yet the Department’s
reading of the HEROES Act overrides those choices by authorizing the
agency to convert loans into grants and identify new, broadly defined
groups eligible for loan cancellation.
The HEA also recognizes the
importance of notice, comment, and collaboration by mandating “negotiated rulemaking” when the Department regulates on matters of student
financial assistance. 20 U.S.C. §1098a(b)(2). Given this, it is implausible
that Congress authorized the Department to use HEROES Act authority
30
to completely bypass notice-and-comment rulemaking for one of the
agency’s most costly and consequential actions ever. §1098bb(b)(1). And
because the HEROES Act’s congressional findings focus on affording
relief to those serving in the military, §1098aa(b)(1)–(6), “[t]here is little
reason to think Congress” intended the Act to authorize worldwide debt
discharge entirely unconnected to the military, West Virginia, 142 S. Ct.
at 2612.
The Department says (at 25) that the major-questions doctrine does
not apply because this case “involves the exercise of authority over a
government benefit program.” Yet the doctrine rests on “separation of
powers principles and a practical understanding of legislative intent”
that “presume[s] . . . Congress intends to make major policy decisions
itself.” West Virginia, 142 S. Ct. at 2609 (cleaned up). That presumption
applies regardless of whether an agency is regulating private actors or
administering a congressionally created benefit program. What matters
is whether an agency is exceeding authority that Congress gave it. That
can happen either when agencies regulate private parties or when they
administer government benefits. There is nothing about the latter situation that is inconsistent with the major-questions doctrine.
31
The Department also insists (at 28) that the HEROES Act “specifically contemplates that the Secretary” would “waiv[e] loan-repayment
provision.” But it cites no support for that statement because none exists.
Nor does the part of ARPA that “makes student-loan discharges . . . taxfree” until 2025 mean that Congress endorsed this use of HEROES.
Contra Appl. 28. Already-established loan programs, such as the IDR
program mentioned above, result in the ongoing discharge of studentloan debt. So the referenced ARPA provision, which exempts debt discharges beyond the circumstances at issue here, says nothing about the
HEROES Act. See Pub. L. 117-2, §9675, 135 Stat. 4, 185–86 (Mar. 11,
2021).
C.
The Cancellation is arbitrary and capricious.
Courts must “hold unlawful and set aside agency action” that is
“arbitrary” or “capricious.” 5 U.S.C. §706(2)(A). The Cancellation is
arbitrary and capricious for at least five reasons.
First, the Department did not consider any reasonable alternatives
to the Cancellation. “[W]hen an agency rescinds a prior policy its reasoned analysis must consider the alternatives that are within the ambit
of the existing policy.” DHS v. Regents of the Univ. of Cal., 140 S. Ct.
32
1891, 1913 (2020) (cleaned up). The Department is moving from a forbearance policy to the Cancellation, so it must consider alternatives like
(1) continuing forbearance and (2) other options to decrease monthly loan
payments. Because those alternatives are within the ambit of the existing policy, the failure to consider them “renders [the] decision arbitrary.”
Ibid. The Department says (at 30) that the Secretary “considered . . . the
availability of ‘other options to reduce monthly payments.’” But the
Secretary did not consider what he might do to reduce monthly payments;
rather, the Rationale Memo simply observed that “borrowers have other
options to reduce monthly payments, like income-driven repayment
(IDR) plans.” App. 39a (emphasis added). Nor, despite what the Department implies (at 31), did the Secretary “consider[]” the option of “continuing forbearance” in lieu of the Cancellation.
Second, the Department’s reliance on COVID-19 as its justification
for the Cancellation is “pretextual,” Dep’t of Com., 139 S. Ct. at 2573, and
an impermissible “post hoc rationalization,” Regents, 140 S. Ct. at 1908
(citation omitted). The agency did not first identify the Cancellation as
“necessary” to protect borrowers. 20 U.S.C. §1098bb(a)(2)(A). Rather,
the Department pursued the Cancellation after failed legislative efforts,
33
and it is using the pandemic as cover to “follow[] through” on the President’s campaign “promise.” D. Ct. Doc. 5-3, at 29. Indeed, the Secretary
approved the Cancellation at 9:25 am on the day he received the Rationale Memo. See App. 33a. Such rapid turnaround is the opposite of reasoned decisionmaking and shows that the supposed reliance on COVID19 is “contrived.” Dep’t of Com., 139 S. Ct. at 2575.
Third, the Department has not tried to justify key aspects of the
Cancellation’s broad scope. For example, the agency documents do not
offer any explanation—much less a reasonable one—for the $250,000
household income cutoff.
Nor has the Department addressed why
borrowers who exceed the income cutoff in either 2020 or 2021 qualify or
why a borrower can apply over a year from now for a program purportedly
addressing a pressing emergency. Such failures to explain core eligibility
requirements—which drive the Cancellation’s broad scope—cannot
survive review.
Fourth, because the Department was changing its forbearance
policy and “not writing on a blank slate, it was required to assess whether
there were reliance interests, determine whether they were significant,
and weigh any such interests against competing policy concerns.”
34
Regents, 140 S. Ct. at 1915 (cleaned up). Yet nothing in the agency materials suggests the Department did this. This failure to “consider[]” any
“reliance interests” is “arbitrary and capricious.” Ibid. The Department
accepts that it ignored the States’ reliance interests but asserts (at 31)
that those interests are not “cognizable.” The HEA itself, however, recognizes the vital interests of “groups involved in student financial assistance programs,” including the interests of “lenders,” secondary-market
participants, and “loan servicers” like the States. 20 U.S.C. §1098a(a)(1).
Fifth, the Department’s September 29 about-face on FFEL consolidation arbitrarily distinguishes between borrowers with non-federally
held FFEL loans who applied for consolidation before September 29 and
those who did not. The agency never rationalizes that distinction—nor
can it. By all accounts, it was an attempt to avoid legal challenges to the
program and thus reflects a failure to consider “the relevant issues” in
crafting the Cancellation. FCC v. Prometheus Radio Project, 141 S. Ct.
1150, 1158 (2021).
D.
The injunction is not overbroad.
The current scope of the Eighth Circuit’s injunction is necessary “to
provide complete relief” to the States. Madsen v. Women’s Health Ctr.,
35
Inc., 512 U.S. 753, 765 (1994). Denying this, the Department contends
(at 35) that the court should have simply “enjoined the Secretary from
discharging loans that are serviced by MOHELA.” But as the States told
the Eighth Circuit, such an injunction would not prevent the harms to
Missouri through MOHELA because the Department could skirt that
relief by transferring loans eligible for the Cancellation to one of the
agency’s eight other loan servicers. See Who’s My Student Loan Servicer,
U.S. Dep’t of Educ., https://tinyurl.com/2p9xkya8 (listing nine servicers).
A “geographically-limited injunction” would likewise “be ineffective” because borrowers and accounts “move among states.” Texas, 809
F.3d at 188; see also Pennsylvania v. President U.S., 930 F.3d 543, 576
(3d Cir. 2019), rev’d on other grounds, Little Sisters of the Poor v.
Pennsylvania, 140 S. Ct. 2367 (2020). Regarding the States’ tax harms,
interstate migration means that a borrower living in California with a
loan serviced in Wisconsin may reside in Iowa in 2026, so cancelling that
debt inflicts injury on Iowa. And as for the consolidation harms, FFEL
consolidations injure the States even if the borrowers live beyond their
borders.
36
II.
The equities support the injunction.
The equities analysis begins and ends with the Cancellation’s un-
lawfulness. “[O]ur system does not permit agencies to act unlawfully
even in pursuit of desirable ends.” Ala. Ass’n of Realtors, 141 S. Ct. at
2490. Accordingly, it is Congress’s “responsibility”—not this Court’s—“to
weigh [the] tradeoffs” of the Cancellation. NFIB, 142 S. Ct. at 666.
Even so, the equitable balance tilts decidedly toward the States. All
the Department’s purported harms have been independently caused by a
judgment vacating the Cancellation in a different case. See Brown, 2022
WL 16858525, at *15. Thus, lifting the injunction here will not solve the
Department’s concerns. Even without that judgment, now that the Department has extended the payment pause into the summer of 2023, its
allegations of immediate harm fall flat.
The Department’s specific arguments about harms to itself are likewise unpersuasive. The agency contends (at 35) that the injunction impedes its ability to “act quickly” to help borrowers during a national
emergency. But this plea for speed rings hollow now that the President
has declared the pandemic over and the payment pause has been
extended. Also unavailing is the Department’s protest (at 36–37) about
37
the supposedly “significant cost” of continuing the pause. Whatever those
temporary costs (roughly a few billion dollars per month), they pale in
comparison to the Cancellation’s $400 billion-plus price tag and the $100
billion already incurred for forbearance. Yesterday’s additional extension of the pause further undermines any claim that it is too expensive.
Nor does the injunction harm the public. To be sure, many eligible
borrowers prefer the Cancellation to proceed. But millions of others “who
pay taxes to finance the government,” App. 2a, and object to funding the
loans that borrowers voluntarily assumed, want the Cancellation to fall.
See Alexandra Marquez, Voters Split on Student Loan Forgiveness, New
Poll Shows, NBC News (Sep. 20, 2022), https://tinyurl.com/2p8ku6se.
The Department complains (at 37) about leaving borrowers in “limbo,”
but any uncertainty exists only because the agency publicly announced
an unlawful handout and has desperately tried to shield it from legal
review. Such “unclean hands” undercut the agency’s appeal to equity.
See Henderson v. United States, 575 U.S. 622, 625 n.1 (2015).
The
Department is also incorrect (at 35) that confining the injunction to
MOHELA’s accounts would benefit the public. From the public’s perspective, such a distinction would be arbitrary and unjust.
38
On the other hand, vacating the injunction would risk exposing the
States to the irreparable harms identified in the standing section above.
Missouri illustrates the point. It faces irreparable injury from the financial harms to MOHELA. Those monetary losses to MOHELA and the
corresponding adverse impact on Missouri’s receipt of funds from
MOHELA are not recoverable and thus are irreparable. See Ala. Ass’n of
Realtors, 141 S. Ct. at 2489 (lost income “with no guarantee of eventual
recovery” is “irreparable harm”). Also irreparable are the injuries to
Missouri’s quasi-sovereign interests in promoting higher education. See
Georgia v. Tenn. Copper Co., 206 U.S. 230, 239 (1907) (finding proper an
injunction to protect Georgia’s quasi-sovereign interests). And finally,
the other States face irreparable harm to their tax revenue and their
respective quasi-sovereign interests.
III. If the Court thinks the application raises close questions, it
should leave the injunction in place and grant certiorari
before judgment.
The Court should decline to lift or modify the injunction because, as
discussed above, the States have a strong likelihood of success on the
merits and the equities weigh decidedly in their favor. Yet if the Court
thinks the application raises close questions, it should leave the
39
injunction in place, grant certiorari before judgment on the two questions
presented, set an expedited timetable for briefing, and schedule a
February argument, as the Department suggests. Now that the agency
has extended the payment pause well into 2023, no one will be harmed
by leaving the injunction while this Court reviews the case.
If the Court grants certiorari, the States should be petitioners
because the district court entered final judgment against them. “This
Court reviews judgments,” California v. Rooney, 483 U.S. 307, 311 (1987)
(per curiam) (cleaned up), and the “usual rule” is that the Court does not
“consider[] prevailing parties’ petitions,” Camreta v. Greene, 563 U.S.
692, 709 (2011). Because the Department won the only judgment entered
in this case, the States should be petitioners if review is granted.
CONCLUSION
The Court should decline to vacate or modify the injunction.
40
Respectfully submitted,
ERIC S. SCHMITT
DOUGLAS J. PETERSON
Attorney General of Missouri
Attorney General of Nebraska
D. JOHN SAUER
JAMES A. CAMPBELL
Solicitor General of Missouri
Solicitor General of Nebraska
Counsel of Record
MICHAEL E. TALENT
Deputy Solicitor General of Missouri
MISSOURI ATTORNEY GENERAL’S
OFFICE
Post Office Box 899
Jefferson City, MO 65102
(314) 340-4869
michael.talent@ago.mo.gov
CHRISTIAN EDMONDS
Assistant Solicitor General of
Nebraska
OFFICE OF THE NEBRASKA
ATTORNEY GENERAL
2115 State Capitol
Lincoln, NE 68509
(402) 471-2682
jim.campbell@nebraska.gov
JEFFREY S. THOMPSON
LESLIE RUTLEDGE
Solicitor General of Iowa
Attorney General of Arkansas
SAMUEL P. LANGHOLZ
NICHOLAS J. BRONNI
Assistant Solicitor General of Iowa
Solicitor General of Arkansas
DYLAN L. JACOBS
Deputy Solicitor General of Arkansas
OFFICE OF THE ARKANSAS ATTORNEY
GENERAL
323 Center Street, Suite 200
Little Rock, AR 72201
(501) 682-2007
dylan.jacobs@arkansasag.gov
41
OFFICE OF THE IOWA ATTORNEY
GENERAL
1305 E. Walnut Street
Des Moines, Iowa 50319
(515) 281-5164
jeffrey.thompson@ag.iowa.gov
sam.langholz@ag.iowa.gov
DEREK SCHMIDT
ALAN WILSON
Attorney General of Kansas
Attorney General of South Carolina
SHANNON GRAMMEL
J. EMORY SMITH, JR.
Deputy Solicitor General of Kansas
Deputy Solicitor General of South
Carolina
OFFICE OF THE KANSAS ATTORNEY
GENERAL
120 SW 10th Avenue, 2nd Floor
Topeka, KS 66612
(785) 296-2215
shannon.grammel@ag.ks.gov
OFFICE OF THE ATTORNEY GENERAL
OF SOUTH CAROLINA
P.O. Box 11549
Columbia, SC 29211
803-734-3680
ESmith@scag.gov
November 2022
42
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.