Amicus Curiae Brief — 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

JOSEPH R. BIDEN, JR., PRESIDENT OF THE UNITED STATES,

ET AL.,

Applicants,

STATE OF NEBRASKA ET AL.,

Respondents.

BRIEF OF AMICUS CURIAE AMERICANS FOR PROSPERITY

FOUNDATION IN OPPOSITION TO APPLICATION TO VACATE THE

INJUNCTION ENTERED BY THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

Michael Pepson

Counsel of Record

Casey Mattox

Cynthia Fleming Crawford

AMERICANS FOR PROSPERITY FOUNDATION

1310 N. Courthouse Road, Ste. 700

Arlington, VA 22201

571.329.4529

mpepson@afphq.org

November 23, 2022

Attorneys for Amicus Curiae

TABLE OF CONTENTS

TABLE OF CONTENTS................................................................................................ i

TABLE OF AUTHORITIES .......................................................................................... ii

INTEREST OF AMICUS CURIAE .............................................................................. 1

SUMMARY OF ARGUMENT ....................................................................................... 2

ARGUMENT................................................................................................................... 3

The Department Must Respect the Separation of Powers .............................. 3

II. The Department Has Usurped Congress’s Exclusive Legislative Power ...... 6

A. The Major Questions Threshold Inquiry ........................................................ 6

B. The Department’s Mass Student Debt Cancellation Triggers the Major

Questions Doctrine ........................................................................................... 7

1. The Department Attempted to Decide Matters of Great Political

Importance ........................................................................................................ 7

2. The Mass Student Debt Cancellation Has Vast Economic Significance ..... 11

C. The Department’s Blanket Loan Forgiveness Scheme Fails the Major

Questions Doctrine’s Clear Statement Requirement .................................... 12

1. The HEROES Act’s Place in the Overall Statutory Scheme ........................ 13

2. Age and Focus of the Act in Relation to Mass Debt Cancellation ................ 16

3. The Department’s Past Interpretations of the HEROES Act....................... 17

4. Mismatch Between the Mass Student Debt Cancellation and the

Department of Education’s Congressionally Assigned Mission ................... 19

CONCLUSION ............................................................................................................... 20

TABLE OF AUTHORITIES

Page(s)

Cases

Ala. Ass’n of Realtors v. HHS,

141 S. Ct. 2485 (2021) ................................................................................... 10, 11, 19

Brown v. United States Dep’t of Educ.,

No. 4:22-cv-0908-P, 2022 U.S. Dist. LEXIS 205875 (N.D. Tex. 2022) .......... 6, 7, 13

Cmty. Fin. Servs. Ass’n of Am. V. Consumer Fin. Prot. Bureau,

51 F.4th 616 (5th Cir. 2022) ......................................................................................19

Doe v. Mills,

142 S. Ct. 17 (2021) ....................................................................................................18

Food & Drug Admin. V. Brown & Williamson Tobacco Corp.,

529 U.S. 120 (2000) ......................................................................................... 4, 13, 16

FTC v. Bunte Brothers, Inc.,

312 U.S. 349 (1941) ....................................................................................................18

Gonzales v. Oregon,

546 U.S. 243 (2006) ......................................................................................................6

King v. Burwell,

576 U.S. 473 (2015) ....................................................................................................20

La. Pub. Serv. Com v. Fed. Commc’ns Comm’n,

476 U.S. 355 (1986) ..................................................................................................3, 4

MCI Tele. Corp. v. American Telephone & Telegraph Co.,

512 U.S. 218 (1994) ............................................................................................. 13, 15

Nat’l Fed’n of Indep. Bus. V. DOL, OSHA,

142 S. Ct. 661 (2022) ................................................................................... 5, 6, 10, 20

Ry. Labor Executives’ Assn’s v. Nat’l Mediation Bd.,

29 F.3d 655 (D.C. Cir. 1994) ........................................................................................4

Spector v. Norwegian Cruise Line Ltd.,

545 U.S. 119 (2005) ....................................................................................................15

Terry v. United States,

141 S. Ct. 1858 (2021) ................................................................................................15

Tiger Lily, LLC v. HUD,

5 F.4th 666 (6th Cir. 2021) ..........................................................................................7

United States v. Zubaydah,

142 S. Ct. 959 (2022) ................................................................................................2, 3

United States Telecom Assn. v. FCC,

855 F. 3d 381 (D.C. Cir. 2017) .......................................................................... 4, 7, 10

Util. Air Regulatory Grp. V. EPA,

573 U.S. 302 (2014) ................................................................................... 5, 12, 13, 14

West Virginia v. EPA,

142 S. Ct. 2587 (2022) ...................................... 3, 4, 5, 6, 8, 10, 12, 14, 15, 16, 17, 18

Whitman v. Am. Trucking Ass’ns., Inc.,

531 U.S. 457 (2001) ....................................................................................................16

Constitution

U.S. Const. Art. I, § 1 .................................................................................................. 2, 18

U.S. Const. Art. I, § 9, cl. 7 ....................................................................................... 18, 19

Statutes

11 U.S.C. § 523(a)(8) ........................................................................................................14

20 U.S.C. § 1087 ...............................................................................................................14

20 U.S.C. § 1087e(f)..........................................................................................................14

20 U.S.C. § 1087e(h).........................................................................................................14

20 U.S.C. § 1087e(m)(2) ...................................................................................................14

20 U.S.C. § 1098aa(b) ......................................................................................................17

20 U.S.C. § 1098aa(b)(5) ..................................................................................................17

20 U.S.C. § 1098aa(b)(6) ..................................................................................................17

20 U.S.C. § 1098bb(a)(1) ..................................................................................................15

20 U.S.C. § 1098bb(a)(2)(A) .............................................................................................15

20 U.S.C. § 1098cc ............................................................................................................14

20 U.S.C. § 1098ee(2)(D)..................................................................................................15

20 U.S.C. § 1098ee(4) .......................................................................................................18

Higher Education Act, 20 U.S.C. 1001 et seq. .................................................................3

iii

Higher Education Relief Opportunities for Students Act of 2003,

Pub. L. No. 108-76, 117 Stat. 904 (2003)

(codified at 20 U.S.C. §§ 1098aa–1098ee) ................................................................14

Federal Register

68 Fed. Reg. 69,312 (Dec. 12, 2003) ................................................................................18

77 Fed. Reg. 59,311 (Sept. 27, 2012) ..............................................................................18

82 Fed. Reg. 45,465 (Sept. 29, 2017) ..............................................................................18

87 Fed. Reg. 61,512 (Oct. 12, 2022) ................................................................................15

Other Authorities

Annie Nova, Biden Will Call on Congress to Forgive $10,000 in Student Debt

for All Borrowers, CNBC (Jan. 8, 2021),

https://www.cnbc.com/2021/01/08/student-loan-forgiveness-could-be-morelikely-but-challenges-remain-.html ..........................................................................10

Christopher H. Schroeder, Asst. Attorney General, U.S. Dept. of Justice,

Office of Legal Counsel, Use of the HEROES Act of 2003 to Cancel the

Principal Amounts of Student Loans, Mem. Op. for the General Counsel,

Dept. of Education, 46 Op. O.L.C. ___, Slip Op. (Aug. 23, 2022) .................... 11, 17

Committee for a Responsible Federal Budget, Debt Cancellation is Too Costly,

CBO Confirms (Sept. 26, 2022), https://www.crfb.org/press-releases/debtcancellation-too-costly-cbo-confirms .........................................................................12

Committee for a Responsible Federal Budget, New Student Debt Changes

Will Cost Half a Trillion Dollars (Aug. 24, 2022),

https://www.crfb.org/blogs/new-student-debt-changes-will-cost-halftrillion-dollars .............................................................................................................12

Committee for a Responsible Federal Budget, Student Debt Cancellation is

Not Financially Justified (Oct. 11, 2022),

https://www.crfb.org/blogs/student-debt-cancellation-not-financiallyjustified ........................................................................................................................15

Congressional Research Service, Federal Student Loan Forgiveness and Loan

Repayment Programs (Nov. 20, 2018).......................................................................14

Congressional Research Service, Statutory Basis for Biden Administration

Student Loan Forgiveness (Sept. 13, 2022) ........................................... 16, 17, 18, 19

David Lerman, Cardona Defends Student Loan Plan as One-Time Covid-19

Remedy: Education Secretary’s Appearance is Part of Push to Sell

Democratic Policies Ahead of Midterms, Roll Call (Sept. 7, 2022),

https://rollcall.com/2022/09/07/cardona-defends-student-loan-plan-as-onetime-covid-19-remedy/ ..................................................................................................8

Debt Cancellation Accountability Act of 2022, S. 4483 (117th Cong.) ..........................9

E. Gellhorn & P. Verkuil,

Controlling Chevron-Based Delegations,

20 Cardozo L. Rev. 989 (1999) .....................................................................................3

Fact Sheet: President Biden Announces Student Loan Relief for Borrowers

Who Need It Most (Aug. 24, 2022) ............................................................................10

FACT SHEET: The Biden-Harris Administration’s Plan for Student Debt

Relief Could Benefit Tens of Millions of Borrowers in All Fifty States,

White House (Sept. 20, 2022) ....................................................................................11

Fairness for Responsible Borrowers Act, H.R. 8496 (117th Cong.)...............................9

Federalist No. 47 (Madison) .............................................................................................3

Federalist No. 48 (Madison) ............................................................................................19

Frontline Healthcare Worker Student Loan Assistance Act of 2020, H.R.8393

(116th Cong.) .................................................................................................................9

Income-Driven Student Loan Forgiveness Act, H.R. 2034 (117th Cong.) ....................9

Joint Consolidation Loan Separation Act, S. 1098 (117th Cong.) .................................9

Letter from Phillip Swagel, Director, Congressional Budget Office, to

Congress (Sept. 26, 2022), https://www.cbo.gov/system/files/202209/58494-Student-Loans.pdf .............................................................................. 11, 12

Michael Stratford and Eugene Daniels, How Biden Finally Got to ‘Yes’ on

Canceling Student Debt (Aug. 25, 2022),

https://www.politico.com/news/2022/08/25/biden-canceling-student-debt00053826 ................................................................................................................ 7, 10

National Taxpayers Union Foundation, Cost of Student Debt Cancelation

Could Average $2,000 Per Taxpayer (Aug. 23, 2022),

https://www.ntu.org/foundation/detail/cost-of-student-debt-cancelationcould-average-2000-per-taxpayer..............................................................................12

Press Release, Transcript of Pelosi Weekly Press Conference Today (July 28,

2021), https://www.speaker.gov/newsroom/72821-2..................................................9

Second Chance at Public Service Loan Forgiveness Act,

S. 4581 (117th Cong.) ...................................................................................................9

Sen. Chuck Grassley & Sen. Rob Portman, Biden’s Student Loan Debt

Transfer Is An Abuse of Executive Power, Washington Examiner (Sept. 8,

2022), https://www.washingtonexaminer.com/restoring-america/fairnessjustice/bidens-student-loan-debt-transfer-is-an-abuse-of-executive-power ............8

Strengthening and Improving Public Service Loan Forgiveness Act of 2022,

H.R. 8330 (117th Cong.)...............................................................................................9

Student Loan Debt Relief Act of 2019, H.R. S. 2235 (116th Cong.) ..............................8

Student Loan Debt Relief Act of 2019, H.R. 3887 (116th Cong.)...................................9

Student Loan Accountability Act, H.R. 8102 (117th Cong.) ..........................................9

Student Loan Accountability Act, S. 4253 (117th Cong.) ...............................................9

Student Loan Relief Act, H.R. 8514 (116th Cong.) .....................................................8, 9

The White House, Bills Signed: H.R. 91, H.R. 92, H.R. 2142, H.R. 3508, H.R.

3539, H.R. 5809, H.R. 7698, S. 1098 (Oct. 11, 2022),

https://www.whitehouse.gov/briefing-room/legislation/2022/10/11/billssigned-h-r-91-h-r-92-h-r-2142-h-r-3508-h-r-3539-h-r-5809-h-r-7698-s-1098/ ........ 9

University of Pennsylvania Wharton School of Business, Forgiving Student

Loans: Budgetary Costs and Distributional Impact (August 23, 2022),

https://budgetmodel.wharton.upenn.edu/issues/2022/8/23/forgivingstudent-loans...............................................................................................................12

University of Pennsylvania Wharton School of Business,

The Biden Student Loan Forgiveness Plan: Budgetary Costs and

Distributional Impact (Aug. 26, 2022),

https://budgetmodel.wharton.upenn.edu/issues/2022/8/26/biden-studentloan-forgiveness ..........................................................................................................12

U.S. Dept. of Ed., About ED, https://www2.ed.gov/about/landing.jhtml ....................19

William Galston, Do Americans Support President Biden’s Student Loan

Plan?, Brookings (Sept. 6, 2022),

https://www.brookings.edu/blog/fixgov/2022/09/06/do-americans-supportpresident-bidens-student-loan-plan/...........................................................................8

INTEREST OF AMICUS CURIAE 1

Amicus curiae Americans for Prosperity Foundation (“AFPF”) is a 501(c)(3)

nonprofit organization committed to educating and training Americans to be

courageous advocates for the ideas, principles, and policies of a free and open society.

Some of those key ideas include the separation of powers and constitutionally limited

government. As part of this mission, AFPF appears as amicus curiae before state and

federal courts.

AFPF has a particular interest in this case because of the critical separation of

powers issues that underlie it, which present a familiar question: which branch of

government is responsible for making law and how? It is not this Court’s role to set

public policy. Nor is it the job of unelected federal bureaucrats or the Executive acting

alone. Instead, the Constitution tasks the democratically elected, politically

accountable branches—Congress and the President—with resolving important policy

questions through the deliberately arduous processes of bicameralism and

presentment.

More broadly, AFPF recognizes that the encroachment of the Executive on

Congress’s Article I powers here will, if allowed to stand, have implications far beyond

the facts of this case. The current Administration and future Administrations of

either party might be encouraged to sidestep the People’s elected representatives in

Congress. And the same Executive power claimed here might be used to suspend or

1 This brief

is accompanied by a motion for leave to file. No counsel for a party

authored this brief in whole or in part and no person other than amicus made any

monetary contributions intended to fund the preparation or submission of this brief.

modify tax enforcement, alter other loan obligations, or otherwise arrogate to the

President Congress’s power of the purse. AFPF writes here to urge this Court to

protect our constitutional Republic and system of representative self-government

against this danger by enforcing the Constitution’s separation of powers and rejecting

the Applicants’ unconstitutional overreach.

SUMMARY OF ARGUMENT

The wisdom and fairness of granting blanket student loan cancellation to tens

of millions of borrowers at a cost of hundreds of billions of dollars is not before the

Court. Instead, this case is about whom the Constitution empowers to make that

decision—one of vast political and economic importance—and by what process. At the

federal level, the answer is Congress, through duly enacted legislation, subject to

constitutional constraints on federal power.

Our system of government relies on the consent of the governed, memorialized

in the Constitution. Our Constitution exclusively tasks the People’s elected

representatives with answering major policy questions through legislation that

survives bicameralism and presentment, a deliberately difficult process designed to

ensure such laws reflect broad political consensus.

Toward this end, the Constitution flatly prohibits Congress from delegating

legislative power to other entities: “All legislative Powers herein granted shall be

vested in a Congress of the United States[.]” U.S. Const. Art. I, § 1 (emphasis added).

“The Constitution did not create a President in the King’s image but envisioned an

executive regularly checked and balanced by other authorities.” United States v.

Zubaydah, 142 S. Ct. 959, 992 (2022) (Gorsuch, J., dissenting). And a fortiori

unelected people are not allowed to make law in this country through administrative

edict, as the Department sought to do here. For “the Constitution does not authorize

agencies to use pen-and-phone regulations as substitutes for laws passed by the

people’s representatives.” West Virginia v. EPA, 142 S. Ct. 2587, 2626 (2022)

(Gorsuch, J., concurring); see Federalist No. 47 (Madison).

The Department’s sweeping assertion of power to unilaterally rewrite the

Higher Education Act (“HEA”), 20 U.S.C. 1001 et seq.—based on the President’s

dubious claim of a “national emergency”—flies in the face of these basic principles. It

is not only unconstitutional but profoundly antidemocratic.

For these reasons, this Court should reject Applicants’ efforts to revive the

unconstitutional mass debt cancellation.

ARGUMENT

The Department Must Respect the Separation of Power.

The Department is a creature of statute, which possesses only those powers

Congress chooses to confer upon it. See La. Pub. Serv. Com v. Fed. Commc’ns Comm’n,

476 U.S. 355, 374 (1986). After all, “[a]gencies have only those powers given to them

by Congress, and ‘enabling legislation’ is generally not an ‘open book to which the

agency [may] add pages and change the plot line.’” West Virginia v. EPA, 142 S. Ct.

at 2609 (quoting E. Gellhorn & P. Verkuil, Controlling Chevron-Based Delegations,

20 Cardozo L. Rev. 989, 1011 (1999)). Accordingly, the Department bears the

affirmative burden to establish statutory authorization for its actions. West Virginia

v. EPA, 142 S. Ct. at 2609 (“We presume that ‘Congress intends to make major policy

decisions itself, not leave those decisions to agencies.’” (quoting United States Telecom

Assn. v. FCC, 855 F. 3d 381, 419 (D.C. Cir. 2017) (Kavanaugh, J., dissenting from

denial of rehearing en banc)); La. Pub. Serv. Com, 476 U.S. at 374. And “[r]egardless

of how serious the problem an administrative agency seeks to address, . . . it may not

exercise its authority in a manner that is inconsistent with the administrative

structure that Congress enacted into law.” Food & Drug Admin. V. Brown &

Williamson Tobacco Corp., 529 U.S. 120, 125 (2000) (cleaned up). Congress need not

expressly negate an agency’s claimed powers; “[w]ere courts to presume a delegation

of power absent an express withholding of such power, agencies would enjoy virtually

limitless hegemony, a result plainly out of keeping with . . . the Constitution[.]” Ry.

Labor Executives’ Assn’s v. Nat’l Mediation Bd., 29 F.3d 655, 671 (D.C. Cir. 1994) (en

banc).

As the Supreme Court reaffirmed earlier this year, under the major questions

doctrine, “cases in which the ‘history and the breadth of the authority that [the

agency] has asserted,’ and the ‘economic and political significance’ of that assertion,

provide a ‘reason to hesitate before concluding that Congress’ meant to confer such

authority.” West Virginia v. EPA, 142 S. Ct. at 2608 (quoting Brown & Williamson,

529 U.S. at 159–60). In those cases, “both separation of powers principles and a

practical understanding of legislative intent make [courts] ‘reluctant to read into

ambiguous statutory text’ the delegation claimed to be lurking there. . . . [S]omething

more than a merely plausible textual basis for the agency action is necessary. The

agency instead must point to ‘clear congressional authorization’ for the power it

claims.” Id. at 2609 (quoting Util. Air Regulatory Grp. V. EPA, 573 U.S. 302, 324

(2014)).

The major questions doctrine “refers to an identifiable body of law that has

developed over a series of significant cases all addressing a particular and recurring

problem: agencies asserting highly consequential power beyond what Congress could

reasonably be understood to have granted.” West Virginia v. EPA, 142 S. Ct. at 2609.

“If administrative agencies seek to regulate the daily lives and liberties of millions of

Americans, the doctrine says, they must at least be able to trace that power to a clear

grant of authority from Congress.” Nat’l Fed’n of Indep. Bus. V. DOL, OSHA, 142 S.

Ct. 661, 668 (2022) (Gorsuch, J., concurring). “Like many parallel clear-statement

rules in our law, this one operates to protect foundational constitutional guarantees.”

West Virginia v. EPA, 142 S. Ct. at 2616 (Gorsuch, J., concurring). Specifically, it

“protect[s] the Constitution’s separation of powers.” Id. (Gorsuch, J., concurring). It

does this by “guarding against unintentional, oblique, or otherwise unlikely

delegations of the legislative power.” NFIB v. OSHA, 142 S. Ct. at 669 (2022)

(Gorsuch, J., concurring). This doctrine “is vital because the framers believed that a

republic—a thing of the people—would be more likely to enact just laws than a regime

administered by a ruling class of largely unaccountable ‘ministers.’” West Virginia v.

EPA, 142 S. Ct. at 2617 (Gorsuch, J., concurring) (citation omitted).

Application of these principles to the Department’s mass student loan

cancellation confirms that it is plainly ultra vires; indeed, “a complete usurpation of

congressional authorization implicating the separation of powers required by the

Constitution.” Brown v. United States Dep’t of Educ., No. 4:22-cv-0908-P, 2022 U.S.

Dist. LEXIS 205875, at *36 (N.D. Tex. Nov. 10, 2022).

II.

The Department Has Usurped Congress’s Exclusive Legislative

Power.

A. The Major Questions Threshold Inquiry.

Whether an agency action implicates the major questions doctrine is a

threshold inquiry. See, e.g., West Virginia v. EPA, 142 S. Ct. at 2607–10; see id. at

2620 n.8 (Gorsuch, J., concurring) (“[O]ur precedents have usually applied the

doctrine as a clear-statement rule, and the Court today confirms that is the proper

way to apply it.”); see also id. at 2691 n.9 (Gorsuch, J., concurring) (noting “antecedent

question whether the agency’s challenged action implicates a major question.”).

As Justice Gorsuch observed, Supreme Court “cases supply a good deal of

guidance about when an agency action involves a major question for which clear

congressional authority is required.” Id. at 2620 (Gorsuch, J., concurring). As

particularly relevant here, the “Court has indicated that the doctrine applies when

an agency claims the power to resolve a matter of great ‘political significance’ or end

an ‘earnest and profound debate across the country.’” Id. (Gorsuch, J., concurring)

(quoting NFIB v. OSHA, 142 S. Ct. at 665 (internal quotation marks omitted);

Gonzales v. Oregon, 546 U.S. 243, 267 (2006)). It “has [also] said that an agency must

point to clear congressional authorization when it seeks to regulate a significant

portion of the American economy or require billions of dollars in spending by private

persons or entities.” Id. at 2621 (Gorsuch, J., concurring) (cleaned up).

B. The Department’s Mass Student Debt Cancellation Triggers the

Major Questions Doctrine.

Here, everything about the Department’s mass student debt forgiveness

program implicates the major questions doctrine, as demonstrated by “the amount of

money involved for regulated and affected parties, the overall impact on the economy,

the number of people affected, and the degree of congressional and public attention

to the issue.” 2 See United States Telecomms. Ass’n, 855 F.3d at 422–23 (Kavanaugh,

J., dissenting from denial of rehearing en banc) (listing generally relevant factors to

major question inquiry); see also Brown, 2022 U.S. Dist. LEXIS 205875, at *30-31

(“[B]ecause the . . . [mass debt cancellation] is an agency action of vast economic and

political significance, the major-questions doctrine applies.”).

1. The Department Attempted to Decide Matters of Great Political

Importance.

To begin with, student loan debt—and what, if anything, to do about it—is an

issue of great political significance and the subject of a robust national debate. 3 See,

e.g., Michael Stratford and Eugene Daniels, How Biden Finally Got to ‘Yes’ on

Canceling Student Debt, Politico (Aug. 25, 2022) (reporting “[s]tudent loans were

regularly in the top five issues in the correspondence that the White House received

2 Federal Defendants agree that “this is a case of economic and political significance.”

Dist. Ct. Dkt. No. 27 at 31. Cf. Brown, 2022 U.S. Dist. LEXIS 205875, at *30 (“Oddly

enough, Defendants do ‘not deny that this is a case of economic and political

significance.’” (citation omitted)).

3 Cf. Tiger Lily, LLC v. HUD, 5 F.4th 666, 675 (6th Cir. 2021) (Thapar, J., concurring)

(“As is often true, there are two sides to today’s story. . . . While landlords and tenants

likely disagree on much, there is one thing both deserve: for their problems to be

resolved by their elected representatives.”).

from Americans each week”) 4; see also David Lerman, Cardona Defends Student Loan

Plan as One-Time Covid-19 Remedy: Education Secretary’s Appearance is Part of

Push to Sell Democratic Policies Ahead of Midterms, Roll Call (Sept. 7, 2022).5 Indeed,

according to Brookings as of early September, “[t]wo thirds [of voters] say that

student loan debt is a serious problem[.] . . . The two [then-]most recent polls . . . put

support” for the President’s mass debt cancellation “among registered voters at 51

percent and 52 percent[.]” William Galston, Do Americans Support President Biden’s

Student Loan Plan?, Brookings (Sept. 6, 2022).6

Student loan debt is plainly of great interest to Congress. See Letter from 94

Members of Congress to Speaker Pelosi, 1 (Aug. 26, 2022) (explaining the President’s

“student loan giveaway is unconstitutional and illegal”)7; Sen. Chuck Grassley & Sen.

Rob Portman, Biden’s Student Loan Debt Transfer Is An Abuse of Executive Power,

Washington Examiner (Sept. 8, 2022).8 Tellingly, “Congress has considered and

rejected bills authorizing something akin to the agency’s proposed course of action.”

West Virginia v. EPA, 142 S. Ct. at 2621 (Gorsuch, J., concurring) (cleaned up); see,

e.g., Student Loan Debt Relief Act of 2019, S. 2235 (116th Cong); Student Loan Relief

4 https://www.politico.com/news/2022/08/25/biden-canceling-student-debt-00053826

https://rollcall.com/2022/09/07/cardona-defends-student-loan-plan-as-one-timecovid-19-remedy/

6 https://www.brookings.edu/blog/fixgov/2022/09/06/do-americans-support-president-

bidens-student-loan-plan/

7 https://www.politico.com/f/?id=00000183-19c4-de9f-a9eb-f9f772e10000

https://www.washingtonexaminer.com/restoring-america/fairness-justice/bidensstudent-loan-debt-transfer-is-an-abuse-of-executive-power

Act, H.R. 8514 (116th Cong.); Frontline Healthcare Worker Student Loan Assistance

Act, H.R. 8393 (116th Cong.); Student Loan Debt Relief Act of 2019, H.R. 3887 (116th

Cong.). Indeed, Congress is currently considering legislation relating to student loan

forgiveness.9 See, e.g., Income-Driven Student Loan Forgiveness Act, H.R. 2034

(117th Cong.); Second Chance at Public Service Loan Forgiveness Act, S. 4581 (117th

Cong.); Strengthening and Improving Public Service Loan Forgiveness Act of 2022,

H.R. 8330 (117th Cong.); Debt Cancellation Accountability Act of 2022, S. 4483 (117th

Cong.); Student Loan Accountability Act, H.R. 8102 (117th Cong.); Student Loan

Accountability Act, S. 4253 (117th Cong.); Fairness for Responsible Borrowers Act,

H.R. 8496 (117th Cong.).

This is unsurprising given that no statute authorizes the Executive to cancel

student debt en masse. Until recently, this fact was uncontroversial. Even the

Speaker of the House, who supports student loan cancelation, acknowledged as much:

“People think that the President of the United States has the power for debt

forgiveness. He does not. . . . [H]e does not have that power. That has to be an act of

Congress.” Press Release, Transcript of Pelosi Weekly Press Conference Today (July

28, 2021), https://www.speaker.gov/newsroom/72821-2. The President also “entered

the presidency deeply skeptical of the idea of writing off large chunks of student loan

For that matter, on October 11, 2022, the President signed into law the Joint

Consolidation Loan Separation Act, S. 1098 (117th Cong.). See The White House, Bills

Signed: H.R. 91, H.R. 92, H.R. 2142, H.R. 3508, H.R. 3539, H.R. 5809, H.R. 7698, S.

1098

(Oct.

11,

2022),

https://www.whitehouse.gov/briefingroom/legislation/2022/10/11/bills-signed-h-r-91-h-r-92-h-r-2142-h-r-3508-h-r-3539-hr-5809-h-r-7698-s-1098/

debt. He questioned publicly whether he had the authority to do it[.]” 10 Accordingly,

the President asked Congress to pass legislation forgiving $10,000 in student debt for

all borrowers.11

It was only after Congress declined to pass the legislation he wanted that the

President changed his tune, specifically directing the Department to unilaterally

pursue mass student loan cancellation. See Fact Sheet: President Biden Announces

Student Loan Relief for Borrowers Who Need It Most (Aug. 24, 2022). “The

President’s intervention only underscores the enormous significance of” these issues.

United States Telecomms. Ass’n, 855 F.3d at 424 (Kavanaugh, J., dissenting from

denial of rehearing en banc); see West Virginia v. EPA, 142 S. Ct. at 2622 (Gorsuch,

J., concurring). This holds particularly true given the curious timing of the

President’s actions: the cusp of the midterm elections, an occasion for candidates to

seek public support for their preferred policy solutions in advance of the next

Congress. This further shows that the President is (again) “attempting to work

[a]round the legislative process to resolve for [himself] . . . a question of great political

significance,” another telltale sign of a major question. West Virginia v. EPA, 142 S.

Ct. at 2621 (Gorsuch, J., concurring) (cleaned up); see, e.g., NFIB v. OSHA, 142 S. Ct.

661 (per curiam) (rejecting unlawful OSHA vaccine mandate); Ala. Ass’n of Realtors

10 Michael Stratford and Eugene Daniels, How Biden Finally Got to ‘Yes’ on Canceling

Student

Debt,

Politico

(Aug.

25,

2022),

https://www.politico.com/news/2022/08/25/biden-canceling-student-debt-00053826

11 See Annie Nova, Biden Will Call on Congress to Forgive $10,000 in Student Debt

for All Borrowers, CNBC (Jan. 8, 2021), https://www.cnbc.com/2021/01/08/studentloan-forgiveness-could-be-more-likely-but-challenges-remain-.html

v. HHS, 141 S. Ct. 2485 (2021) (per curiam) (rejecting unlawful CDC eviction

moratorium).

2. The Mass Student

Significance.

Debt

Cancellation

Has

Vast

Economic

In addition, mass student debt cancellation is plainly of vast economic

significance. See also App. 2a (“Whatever the eventual outcome of this case, it will

affect the finances of millions of Americans with student loan debt as well as those

Americans who pay taxes to finance the government and indeed everyone who is

affected by such far reaching fiscal decisions.”). To put this in perspective, OLC itself

found that “[a]s of the end of the second quarter of 2022, about 43.0 million borrowers

had loans under the three federal student loan programs, and their debts collectively

amounted to approximately $1.62 trillion.” Christopher H. Schroeder, Asst. Attorney

General, U.S. Dept. of Justice, Office of Legal Counsel, Use of the HEROES Act of

2003 to Cancel the Principal Amounts of Student Loans, Mem. Op. for the General

Counsel, Dept. of Education, 46 Op. O.L.C. ___, Slip Op. at 2 (Aug. 23, 2022) (“OLC

Memo”) (citation omitted); accord Letter from Phillip Swagel, Director, Congressional

Budget

Office,

Congress,

(Sept.

26,

2022)

(“CBO

Letter”),

https://www.cbo.gov/system/files/2022-09/58494-Student-Loans.pdf; see also FACT

SHEET: The Biden-Harris Administration’s Plan for Student Debt Relief Could

Benefit Tens of Millions of Borrowers in All Fifty States, White House (Sept. 20, 2022)

(“The Biden-Harris Administration expects that over 40 million borrowers are eligible

for its student debt relief plan, and nearly 20 million borrowers could see their entire

remaining balance discharged.”).

In terms of cost, “CBO estimates that the cost of student loans will increase by

about an additional $400 billion in present value as a result of the action[.]” CBO

Letter at 1.12 According to the National Taxpayers Union Foundation, this could cost,

on average, $2,000 per taxpayer.13 The Committee for a Responsible Federal Budget

previously estimated that all of the Department’s debt changes “will cost between

$440 billion and $600 billion over the next ten years[.]”14 And a Wharton analysis

found that “depending on future details of the actual IDR program and concomitant

behavioral changes, the IDR program could add another $450 billion or more, thereby

raising total plan costs to over $1 trillion.”15

C. The Department’s Blanket Loan Forgiveness Scheme Fails the Major

Questions Doctrine’s Clear Statement Requirement.

Against this backdrop, the Executive’s “claim to extravagant statutory power

over the national economy” should be greeted skeptically. Util. Air Regulatory Grp.,

12 The University of Pennsylvania Wharton School of Business “estimate[d] that a

one-time maximum debt forgiveness of $10,000 per borrower will cost around $300

billion for borrowers with incomes less than $125,000.” Forgiving Student Loans:

Budgetary

Costs

and

Distributional

Impact

(August

23,

2022),

https://budgetmodel.wharton.upenn.edu/issues/2022/8/23/forgiving-student-loans.

13 NTUF, Cost of Student Debt Cancelation Could Average $2,000 Per Taxpayer (Aug.

23, 2022), https://www.ntu.org/foundation/detail/cost-of-student-debt-cancelationcould-average-2000-per-taxpayer

14 CRFB, New Student Debt Changes Will Cost Half a Trillion Dollars (Aug. 24, 2022),

https://www.crfb.org/blogs/new-student-debt-changes-will-cost-half-trillion-dollars;

see also CRFB, Debt Cancellation is Too Costly, CBO Confirms (Sept. 24, 2022),

https://www.crfb.org/blogs/new-student-debt-changes-will-cost-half-trillion-dollars.

15 The Biden Student Loan Forgiveness Plan: Budgetary Costs and Distributional

Impact

(Aug.

26,

2022),

https://budgetmodel.wharton.upenn.edu/issues/2022/8/26/biden-student-loanforgiveness

573 U.S. at 324. And where, as here, the major questions doctrine applies, “a colorable

textual basis” is not enough to justify the agency’s assertion of power. See West

Virginia v. EPA, 142 S. Ct. at 2609. Instead, “[a]t this point, the question becomes

what qualifies as a clear congressional statement authorizing an agency’s action.” Id.

at 2622 (Gorsuch, J., concurring). “First, courts must look to the legislative provisions

on which the agency seeks to rely ‘with a view to their place in the overall statutory

scheme.’” Id. (Gorsuch, J., concurring) (quoting Brown & Williamson, 529 U.S. at

133). “Second, courts may examine the age and focus of the statute the agency invokes

in relation to the problem the agency seeks to address.” Id. at 2623 (Gorsuch, J.,

concurring). “Third, courts may examine the agency’s past interpretations of the

relevant statute.” Id. (Gorsuch, J., concurring). “Fourth, skepticism may be merited

when there is a mismatch between an agency’s challenged action and its

congressionally assigned mission and expertise.” Id. (Gorsuch, J., concurring). The

Department’s mass student loan cancellation independently fails all four of these

tests. See also Brown, 2022 U.S. Dist. LEXIS 205875, at *31-34 (concluding “the

Department lacks ‘clear congressional authorization’ for the Program under the

HEROES Act”).

1. The HEROES Act’s Place in the Overall Statutory Scheme.

Congress does not “typically use oblique or elliptical language to empower an

agency to make a ‘radical or fundamental change’ to a statutory scheme.” West

Virginia v. EPA, 142 S. Ct. at 2609 (quoting MCI Tele. Corp. v. American Telephone

& Telegraph Co., 512 U.S. 218, 229 (1994)). If Congress wanted to grant the

Department unfettered (and unconstitutional) legislative power to mass cancel

student debt, it would have clearly said so. See Util. Air Regulatory Grp., 134 S. Ct.

at 2444. It did not, instead saying the opposite.

The student loan statutory structure Congress has enacted makes clear that

Congress generally expects borrowers to pay back their federally funded loans. For

example, as a general matter, student loans are not dischargeable in bankruptcy. See

11 U.S.C. § 523(a)(8). And when Congress has wanted to authorize student loan relief,

it has done so explicitly through targeted statutes narrowly authorizing relief to

discreet subsets of borrowers under limited circumstances. See, e.g., 20 U.S.C. §§ 1087

(repayment by the Secretary of loans of bankrupt, deceased, or disabled borrowers;

treatment of borrowers attending schools that fail to provide a refund, attending

closed schools, or falsely certified as eligible to borrow), 1087e(f) (deferment), 1087e(h)

(borrower defenses), 1087e(m)(2) (loan cancellation amount), 1098cc (tuition refunds

or credits for members of Armed Forces). See generally Congressional Research

Service, Federal Student Loan Forgiveness and Loan Repayment Programs (Nov. 20,

2018) (discussing statutorily authorized programs). None of those provisions apply

here.

Recognizing this, the Department bases its newly-claimed power to cancel

broad swaths of student loans on an obscure, “rarely invoked statutory provision,” cf.

West Virginia v. EPA, 142 S. Ct. at 2624 (Gorsuch, J., concurring), of the Higher

Education Relief Opportunities for Students Act of 2003, Pub. L. No. 108-76, 117 Stat.

904 (2003) (codified at 20 U.S.C. §§ 1098aa–1098ee) (“HEROES Act of 2003” or

“HEROES Act”). See 87 Fed. Reg. 61,512, 61,514 (Oct. 12, 2022) (relying on 20 U.S.C.

§ 1098bb(a)(1) to justify mass debt cancellation). The provision authorizes the

Secretary to “waive or modify any statutory or regulatory provision applicable to the

student financial assistance programs under Title IV of the Act as the Secretary

deems necessary in connection with a war or other military operation or national

emergency to provide the waivers or modifications authorized by paragraph (2).”16 20

U.S.C. § 1098bb(a)(1) (emphasis added). As relevant here, the Secretary is authorized

to do this “as may be necessary to ensure that—recipients of student financial

assistance under title IV of the Act 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[.]”17 20 U.S.C. § 1098bb(a)(2)(A) (emphasis added).

Nothing in that provision purports to authorize, let alone clearly authorize, the

Department to unilaterally reimagine student loan law to cancel hundreds of billions

of dollars of debt, even if the President declares an “emergency.” See Spector v.

Norwegian Cruise Line Ltd., 545 U.S. 119, 139 (2005) (plurality) (suggesting “broad

or general language” insufficient to find clear statement); see also West Virginia v.

EPA, 142 S. Ct. at 2609 (“Extraordinary grants of regulatory authority are rarely

16 “To ‘modify’ means ‘to change moderately.’” Terry v. United States, 141 S. Ct. 1858,

1863 (2021) (quoting MCI Telecomms. Corp., 512 U.S. at 225).

17 As relevant here, “[t]he term ‘affected individual’ means an individual who . . .

suffered direct economic hardship as a direct result of a war or other military

operation or national emergency, as determined by the Secretary.” 20 U.S.C. §

1098ee(2)(D) (emphasis added); see also CRFB, Student Debt Cancellation is Not

Financially Justified (Oct. 11, 2022), https://www.crfb.org/blogs/student-debtcancellation-not-financially-justified

accomplished through ‘modest words,’ ‘vague terms,” or “subtle device[s].’” (quoting

Whitman v. Am. Trucking Ass’ns., Inc., 531 U.S. 457, 468 (2001)). As the

Congressional Research Service has explained: “The HEROES Act lacks express

reference to ‘cancellation,’ ‘discharge,’ ‘forgiveness,’ or similar terms that Congress

has used in portions of statutes, such as the Public Service Loan Forgiveness

program, that allow or require ED to ‘cancel’ student loan balances.” Congressional

Research Service, Statutory Basis for Biden Administration Student Loan

Forgiveness, 4 (Sept. 13, 2022).

Indeed, simple “common sense as to the manner in which Congress is likely to

delegate a policy decision of such economic and political magnitude,” Brown &

Williamson, 529 U.S. at 133, as blanket student loan forgiveness suggests Congress

did not do so here. Congress could not have intended to grant unfettered power to

erase hundreds of billions of dollars in student debt for millions of borrowers, a topic

of intense debate with immense economic consequences, to the Department “in so

cryptic a fashion.” Id. at 160.

2. Age and Focus of the Act in Relation to Mass Debt Cancellation.

“Of course, sometimes old statutes may be written in ways that apply to new

and previously unanticipated situations. But an agency’s attempt to deploy an old

statute focused on one problem to solve a new and different problem may also be a

warning sign that it is acting without clear congressional authority.” West Virginia v.

EPA, 142 S. Ct. at 2623 (Gorsuch, J., concurring) (citation omitted). So too here.

The HEROES Act of 2003 was passed in the wake of the 9/11 terrorist attacks

for the benefit of servicemembers in circumstances involving military mobilizations.

The Act’s findings make plain its focus: protecting servicemembers.18 See 20 U.S.C. §

1098aa(b). As the Act recognized: “The men and women of the United States military

put their lives on hold, leave their families, jobs, and postsecondary education in order

to serve their country and do so with distinction.” Id. § 1098aa(b)(5); see also id. §

1098aa(b)(6) (“There is no more important cause for this Congress than to support

the members of the United States military and provide assistance with their

transition into and out of active duty and active service.”).

Unsurprisingly, given this context, only a single member of the House voted

against it, and it passed the Senate without amendment by unanimous consent. See

Statutory Basis for Biden Administration Student Loan Forgiveness, supra, 4. There

was no suggestion this bill would authorize the President and Secretary to reimagine

this country’s student loan system and mass-cancel student loan debt for all

borrowers making less than an arbitrary threshold amount of money.

3. The Department’s Past Interpretations of the HEROES Act.

The Department’s prior interpretations of the HEROES Act further underscore

the extent of its overreach. As the Supreme Court explained in West Virginia v. EPA,

“as Justice Frankfurter has noted, ‘just as established practice may shed light on the

extent of power conveyed by general statutory language, so the want of assertion of

18 As OLC has explained: “The precursor of the HEROES Act of 2003 was the Higher

Education Relief Opportunities for Students Act of 2001. Enacted a few months after

the terrorist attacks of September 11, that statute was intended to ‘provide the

Secretary of Education with specific waiver authority to respond to conditions in the

national emergency declared by the President on September 14, 2001.’” OLC Memo,

Slip Op. 3 (quoting Pub. L. No. 107-122, 115 Stat. 2386, 2386 (2002)).

power by those who presumably would be alert to exercise it, is equally significant in

determining whether such power was actually conferred.’” 142 S. Ct. at 2610 (quoting

FTC v. Bunte Brothers, Inc., 312 U.S. 349, 352 (1941)). That resonates here.

Until now, the Department has never suggested the HEROES Act grants the

Secretary plenary power to reimagine student loan law whenever the President

deigns to declare an emergency,19 arrogating to itself not only Congress’s exclusive

legislative power, see U.S. Const. Art. I, § 1, but also Congress’s power of the purse,20

U.S. Const. Art. I, § 9, cl. 7. Instead, the Department more modestly used its HEROES

Act waiver-and-modification authority to tweak the margins of loan cancellation

programs authorized by other statutes.21 “[T]here is no original, longstanding, and

consistent interpretation meriting judicial respect.” West Virginia v. EPA, 142 S. Ct.

at 2624 (Gorsuch, J., concurring). Nor did the Department claim blanket loan

cancellation powers during the COVID-19 pandemic, even as it found in the HEROES

Act the power to pause payments. As the Congressional Research Service recently

explained: “Categorical cancellation appears poised to substantially reshape ED’s

19 It bears reminding that “[i]f human nature and history teach anything, it is that

civil liberties face grave risks when governments proclaim indefinite states

of emergency.” Doe v. Mills, 142 S. Ct. 17, 21 (2021) (Gorsuch, J., dissenting from

denial of application for injunctive relief).

20 The Act unhelpfully defines “‘national emergency’ [to] mean[] a national emergency

declared by the President of the United States.” 20 U.S.C. § 1098ee(4).

21 See, e.g., 68 Fed. Reg. 69,312, 69,316–17 (Dec. 12, 2003) (“For borrowers who are

affected individuals in this category, the Secretary is waiving the requirements that

apply to the various loan cancellations that such periods of service be uninterrupted

and/or consecutive, if the reason for the interruption is related to the borrower’s

status as an affected individual.”); 77 Fed. Reg. 59,311, 59,316 (Sept. 27, 2012)

(similar); 82 Fed. Reg. 45,465, 45,470 (Sept. 29, 2017) (similar).

federal student loan portfolio. The action reflects a use of ED’s HEROES Act

authority that is unlike past invocations. For the first time, ED plans to use this

authority to directly and permanently discharge a portion of borrowers’ student loan

debt.” Statutory Basis for Biden Administration Student Loan Forgiveness, supra, 1.

4. Mismatch Between the Mass Student Debt Cancellation and the

Department of Education’s Congressionally Assigned Mission.

Bolstering the conclusion that the Department is seeking to arrogate to itself

Congress’s legislative power is the mismatch between the Department’s actual

mission and the apparent goals of the mass student debt cancellation. The

Department has no expertise in fiscal policy. Nor does the Department have authority

to handle appropriations—a task the Constitution exclusively reserves to Congress.

U.S. Const. Art. I, § 9, cl. 7; see also Cmty. Fin. Servs. Ass’n of Am. v. Consumer Fin.

Prot. Bureau, 51 F.4th 616, 636 (5th Cir. 2022) (“The Framers . . . believed that

vesting Congress with control over fiscal matters was the best means of ensuring

transparency and accountability to the people.” (citing Federalist No. 48 (Madison)).

Instead, its “mission is to promote student achievement and preparation for global

competitiveness by fostering educational excellence and ensuring equal access.” 22 The

Department’s mass student loan cancellation has nothing to do with that.

Just as the CDC lacked the power to reimagine landlord-tenant law, see Ala.

Ass’n of Realtors, 141 S. Ct. at 2489; OSHA lacked the power to mandate vaccinations,

see NFIB v. OSHA, 142 S. Ct. at 665 (“The Act empowers the Secretary to set

22 U.S. Dept. of Ed., About ED, https://www2.ed.gov/about/landing.jhtml

workplace safety standards, not broad public health measures.”); and the IRS lacked

power to make national health policy, see King v. Burwell, 576 U.S. 473, 486 (2015),

the Department lacks the power to reach into policymaking outside the scope of its

mission.

CONCLUSION

For these reasons, this Court should deny the Application to vacate the

injunction.

Respectfully submitted,

/s/ Michael Pepson

Michael Pepson

Counsel of Record

Casey Mattox

Cynthia Fleming Crawford

AMERICANS FOR PROSPERITY FOUNDATION

1310 N. Courthouse Road, Ste. 700

Arlington, VA 22201

571.329.4529

mpepson@afphq.org

Dated: November 23, 2022

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.