Amicus Curiae Brief — Joseph R. Biden, President of the United States, et al., Petitioners v. Nebraska, et al.
Supreme Court briefJan 11, 2023
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Nos. 22-506, 22-535
IN THE
Supreme Court of the United States
______________________________________________________________________
JOSEPH R. BIDEN, PRESIDENT OF THE UNITED STATES,
ET AL.,
Petitioners,
v.
NEBRASKA, ET AL.,
Respondents.
______________________________________________________________________
DEPARTMENT OF EDUCATION, ET AL.,
Petitioners,
v.
MYRA BROWN, ET AL.,
Respondents.
______________________________________________________________________
On Writs of Certiorari Before Judgment to the
United States Courts of Appeals for
the Eighth and Fifth Circuits
______________________________________________________________________
BRIEF OF THE NATIONAL EDUCATION
ASSOCIATION AS AMICUS CURIAE IN
SUPPORT OF PETITIONERS
______________________________________________________________________
ALICE O’BRIEN
Counsel of Record
JEFFREY W. BURRITT
National Education Association
1201 Sixteenth Street, N.W.
Washington, D.C. 20036
(202) 822-7035
aobrien@nea.org
Mosaic - (301) 927-3800 - Cheverly, MD
i
TABLE OF CONTENTS
Page
Table of authorities................................................. iii
Interest of Amicus Curiae ....................................... 1
Introduction and summary of argument ................ 2
Argument ................................................................. 5
I.
This Court Must Restrict Application of the
Major Questions Doctrine to Assertions of
Agency Power that Are Genuinely
“Extraordinary” .................................................. 5
II. The HEROES Act Unambiguously Provides
that the Debt Relief Plan is a Valid
Exercise of the Secretary’s Delegated
Authority ............................................................ 9
A. The text of the Act grants the Secretary
broad authority ............................................. 9
B. The breadth of authority assumed here
is consistent with the context in which
the Act was enacted, amended, and
made permanent ......................................... 12
C. The Secretary’s Plan is consistent with
other pandemic-related invocations of
the Act ......................................................... 15
III. The Major Questions Doctrine Does Not
Bar the Secretary’s Plan .................................. 19
A. The Secretary’s Plan is not unheralded ..... 20
B. The Secretary’s Plan is not a
“transformative expansion” of the
Department’s regulatory authority ............ 23
ii
C. The Secretary’s Plan is justified by clear
congressional authorization........................ 27
Conclusion .............................................................. 29
iii
Cases
TABLE OF AUTHORITIES
Pages
Abramski v. United States,
573 U.S. 169 (2014) .............................................. 6
Alabama Ass’n of Realtors v. Dep’t of Health
& Hum. Servs., 141 S. Ct. 2485 (2021) .............. 22
Arlington Cent. Sch. Dist. Bd. of Educ. v.
Murphy, 548 U.S. 291 (2006) ............................. 11
Biden v. Missouri, 142 S. Ct. 647 (2022)............ 3, 20
Bostock v. Clayton County,
140 S. Ct. 1731 (2020) ........................................ 26
BP P.L.C. v. Mayor & City Council of
Baltimore, 141 S. Ct. 1532 (2021) ...................... 15
Chevron, U.S.A., Inc. v. Nat. Res. Def.
Council, Inc., 467 U.S. 837 (1984)........................ 6
Connecticut Nat. Bank v. Germain,
503 U.S. 249 (1992) ............................................ 11
FDA v. Brown & Williamson Tobacco Corp.,
529 U.S. 120 (2000) ................................ 19, 20, 27
FTC v. Bunte Bros., Inc.,
312 U.S. 349 (1941) ...................................... 20, 25
Iselin v. United States, 270 U.S. 245 (1926) .......... 12
King v. Burwell, 576 U.S. 473 (2015) ..................... 23
Lamar, Archer & Cofrin, LLP v. Appling,
138 S. Ct. 1752 (2018) .......................................... 8
Lewis v. Chicago, 560 U.S. 205 (2010) ................... 15
Marinello v. United States,
138 S. Ct. 1101 (2018) ........................................ 14
MCI Telecomms. Corp. v. AT&T,
512 U.S. 218 (1994) ............................................ 24
Sturges v. Crowninshield,
4 Wheat. 122 (1819)............................................ 11
Sullivan v. Finkelstein, 496 U.S. 617 (1990) ......... 26
United States v. Rodgers, 466 U.S. 475 (1984) ...... 14
iv
Cases—Continued
Pages
Utility Air Regulatory Group v. EPA,
573 U.S. 302 (2014) ............................ 4, 19, 22–24
West Virginia v. EPA, 142 S. Ct. 2587
(2022) ............................ 4–6, 19, 20, 22–24, 27, 28
Statutes and Regulations
Act of Sept. 30, 2005, Pub. L. No. 109-78, § 1,
119 Stat. 2043 ..................................................... 13
Act of Sept. 30, 2007, Pub. L. No. 110-93, § 2,
121 Stat. 999 ....................................................... 13
Act of Dec. 22, 2017, Pub. L. No. 115-97,
§ 11031, 131 Stat. 2054, 2081 (2017) ................. 27
American Rescue Plan Act of 2021,
Pub. L. No. 117-2, § 9675,
135 Stat. 4, 185–186 (2021).......................... 26, 27
Authorization for Use of Military Force
(AUMF) Joint Resolution,
Pub. L. No. 107-40, § 2,
115 Stat. 224 (2001)............................................ 12
Coronavirus Aid, Relief, and Economic
Security (CARES) Act,
Pub. L. No. 116-136, § 3513,
134 Stat. 4, 404 (2020)........................................ 16
Higher Education Relief Opportunities for
Students Act of 2001, Pub. L. No. 107-122,
115 Stat. 2386 ..................................................... 13
Higher Education Relief Opportunities for
Students Act of 2003, Pub. L. No. 108-76,
§ 6, 117 Stat. 904, 908 ........................................ 13
v
Statutes and Regulations—Continued
Pages
Uniting and Strengthening America by
Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism (USA
PATRIOT) Act of 2001, Pub. L. No. 10756, 115 Stat 272 (2001)....................................... 13
20 U.S.C. § 1087................................................ 11, 23
20 U.S.C. § 1087e(m) .............................................. 24
20 U.S.C. § 1087dd(g) ....................................... 11, 23
20 U.S.C. § 1087hh(1)–(2)....................................... 23
20 U.S.C. § 1098e .................................................... 27
20 U.S.C. § 1098bb(a)(1) ................... 9, 10, 13, 15, 25
20 U.S.C. § 1098bb(a)(2)(A) .................................... 10
20 U.S.C. § 1098bb(b)(3) ......................................... 10
20 U.S.C. § 1098ee(2)(C) ......................................... 10
26 U.S.C. § 108(f)(1)................................................ 27
26 U.S.C. § 108(f)(5)................................................ 26
34 C.F.R. § 674.51–.65 ...................................... 11, 23
34 C.F.R. § 682.402 ........................................... 11, 23
34 C.F.R. § 685.212 ........................................... 11, 23
Other Authorities
Antonin Scalia & Bryan A. Garner,
Reading Law: The Interpretation of Legal
Texts (2012) ........................................................... 7
Antonin Scalia & John F. Manning,
A Dialogue on Statutory and
Constitutional Interpretation,
80 GEO. WASH. L. REV. 1610 (2012) ..................... 8
Chad Squitieri, Who Determines Majorness?,
44 HARV. J. L. & PUB. POL’Y 463 (2021) ............... 7
vi
Other Authorities—Continued
Pages
Chris Mooney, A Short History of Sunsets,
LEGAL AFFAIRS (Jan. 2004), https://www.
legalaffairs.org/issues/January-February2004/story_mooney_janfeb04.msp ..................... 14
Daniel Deacon & Leah Litman, The New
Major Questions Doctrine, 109 VA. L. REV.
(forthcoming 2023) (draft), https://papers.
ssrn.com/sol3/papers.cfm?abstract_id=416
5724 ................................................................... 6, 7
Debt Cancellation Accountability Act,
S. 4483, 117th Cong. (2022) ............................... 26
Elissa Nadworny, Education Dep’t Will Stop
Collections on Student Borrowers in
Default, NPR (Mar. 25, 2020),
https://www.npr.org/sections/coronaviruslive-updates/2020/03/25/821383576/
education-dept-will-stop-collecting-onstudent-borrowers-in-default ............................. 16
68 Fed. Reg. 69,312 (Dec. 12, 2003) ....................... 22
82 Fed. Reg. 48,195 (Oct. 12, 2017)........................ 21
85 Fed. Reg. 157 (Aug. 8, 2020).............................. 17
85 Fed. Reg. 15,337 (Mar. 13, 2020) ...................... 15
85 Fed. Reg. 79,856 (Dec. 11, 2020) ....................... 16
87 Fed. Reg. 10,289 (Feb. 23, 2022) ....................... 10
87 Fed. Reg. 61,512 (Oct. 12, 2022)............ 11, 21, 23
FEMA, COVID-19 Disaster Declarations,
https://www.fema.gov/disaster/
coronavirus/disaster-declarations ...................... 10
Jesse Rothstein & Cecilia Rouse,
Constrained After College: Student Loans
and Early-Career Occupational Choices,
91 J. PUB. ECON. 149 (2011) ................................. 2
vii
Other Authorities—Continued
Pages
John E. Finn, Sunset Clauses and
Democratic Deliberation: Assessing the
Significance of Sunset Provisions in
Antiterrorism Legislation, 48 COLUM. J.
TRANSNAT’L L. 442 (2010) ................................... 14
Madeleine Carlisle, How 9/11 Radically
Expanded the Power of the U.S.
Government, TIME (Sep. 11, 2021).................... 12
Melissa Hershcopf, et al., Student Loan Debt
Among Educators: A National Crisis 8
(2021), https://www.nea.org/sites/default/
files/2021-07/Student%20Loan%20Debt%
20among%20Educators.pdf.................................. 2
Nat’l Student Loan Data Sys., Federal
Student Aid Portfolio Summary, https://
studentaid.gov/sites/default/files/fsawg/
datacenter/library/PortfolioSummary.xls.... 15, 18
Natasha Brunstein & Donald Goodson,
Unheralded and Transformative: The Test
for Major Questions After West Virginia,
47 WM. & MARY ENV’T L. & POL’Y REV.
(forthcoming 2023) (draft) .................................. 19
Natasha Brunstein & Richard L. Revesz,
Mangling the Major Questions Doctrine,
74 ADMIN. L. REV. 217 (2022) ............................... 7
Sen. Menendez, Press Release,
Menendez, Warren Bill to Make Student
Loan Relief Tax-Free Passes as Part of
COVID Relief Package, Clearing Hurdle
for Broad Loan Forgiveness
(Mar. 6, 2021)...................................................... 27
Stop Reckless Student Loan Actions Act of
2022, H.R. 7656, 117th Cong. (2022). ................ 26
viii
Other Authorities—Continued
Pages
Student Debt Relief Act of 2019,
S. 2235, 116th Cong. (2019) ............................... 25
Student Loan Accountability Act,
H.R. 8102, 117th Cong. (2022) ........................... 26
Subcomm. on Mgmt., Integration &
Oversight of the House Comm. on
Homeland Sec., An Examination Of
Federal 9/11 Assistance To New York:
Lessons Learned In Preventing Waste,
Fraud, Abuse And Lax Management 3
(Aug. 2006), https://www.govinfo.gov/
content/pkg/CPRT-109HPRT20452/html/
CPRT-109HPRT20452.htm. ............................... 13
Travis Hornsby, The Cost of the Student
Loan Pause Now Exceeds the Cost of
Student Loan Cancellation, STUDENT
LOAN PLANNER (Dec. 19, 2022),
https://www.studentloanplanner.com/coststudent-loan-pause/ ............................................ 18
U.S. Dep’t of Educ.,:
Biden-Harris Administration Continues
Fight for Student Debt Relief for Millions
of Borrowers, Extends Student Loan
Repayment Pause (Nov. 22, 2022),
https://www.ed.gov/news/pressreleases/biden-harris-administrationcontinues-fight-student-debt-reliefmillions-borrowers-extends-student-loanrepayment-pause. ............................................. 17
ix
Other Authorities—Continued
Pages
Federal Student Aid Posts New Reports to
FSA Data Center (Aug. 7, 2019),
https://fsapartners.ed.gov/knowledgecenter/library/electronic-announcements/
2019-08-07/federal-student-aid-postsnew-reports-fsa-data-center#. .......................... 21
Secretary DeVos Extends Student Loan
Forbearance Period Through January 31,
2021, in Response to COVID-19 National
Emergency (Dec. 4, 2020), https://content.
govdelivery.com/accounts/USED/bulletin
s/2afbc4b. .................................................... 16, 17
U.S. Gov’t Accountability Off., Student
Loans: Education Has Increased Federal
Cost Estimates of Direct Loans by Billions
due to Programmatic and Other Changes
14 (July 2022) ..................................................... 18
1
INTEREST OF AMICUS CURIAE
This Amici Curiae brief is submitted on behalf of
the National Education Association (“NEA”), the
largest labor union in the United States, which
represents three million educators, including pre-K-12
classroom teachers; education support professionals
such as paraeducators, transportation workers, and
clerical staff; specialized instructional support
personnel including counselors, social workers, library
media specialists, and speech language pathologists;
and higher education faculty. 1
NEA has long advocated for college affordability,
understanding that no one should face the Hobson’s
choice of forgoing higher education or taking on
lifelong, crippling student debt. Likewise, no student
should be deterred from pursuing a career as an
educator because of the prospects of a low salary and
a high student debt balance, just as educators should
not be forced to leave the teaching profession because
of an inability to pay their student loans. NEA
maintains that the federal government, in managing a
student debt portfolio topping $1.6 trillion, owed by
more than 42 million borrowers, must do all in its
power to alleviate the student debt crisis that holds
back educators and millions of others.
Educators today are under an unprecedented level
of strain because of the pandemic, its attendant
economic upheaval, and an increasingly dire staffing
shortage affecting over half of American schools.
Nearly half of educators have outstanding student
1 Amicus NEA states that no party’s counsel authored the
brief in whole or in part; no party’s counsel contributed money
that was intended to fund preparing or submitting the brief; and
no person—other than Amicus NEA—contributed money that
was intended to fund preparing or submitting the brief.
2
loan debt, owing, on average, $58,700.2 The financial
challenges faced by these educators compared to their
peers accelerated during the pandemic, but debt relief
now would place many educators on more solid
financial footing. This relief, though individual, will
have implications across the profession as financially
secure educators are less likely to leave the
profession.3 Debt relief is also likely to abate the
teacher shortage by improving teacher recruitment
among recent graduates, as research shows that each
additional $10,000 in student debt reduces the
likelihood of choosing a career in public education by
almost 6 percentage points.4
NEA accordingly has a strong interest in ensuring
that the Secretary of Education is permitted to
exercise the full breadth of his authority, conferred by
Congress in the HEROES Act of 2003, to provide
student debt relief as is now necessary to help
educators, and tens of millions of other student loan
borrowers, recover financially from the COVID-19
pandemic.
INTRODUCTION AND
SUMMARY OF ARGUMENT
This Court should uphold the Student Debt Relief
Plan as a valid exercise of the Secretary of Education’s
authority under the Higher Education Relief
Opportunities for Students (HEROES) Act of 2003.
Melissa Hershcopf, et. al, Student Loan Debt Among
Educators: A National Crisis 8 (2021), https://www.nea.org/
sites/default/files/2021-07/Student%20Loan%20Debt%20among
%20Educators.pdf.
2
3 Id. at 28.
4 Jesse Rothstein & Cecilia Rouse, Constrained After College:
Student Loans and Early-Career Occupational Choices, 91 J. PUB.
ECON. 149, 158 (2011).
3
Congress, through the enactment (and re-enactment)
of the HEROES Act, authorized the Secretary to issue
any waiver or modification deemed necessary to
reduce the financial strain of borrowers’ federal
student loans because of a national emergency.
In upholding the Secretary’s authority, this Court
should reject the Respondents’ effort to expand the
major questions doctrine in a manner that would
threaten to harm not only the administration of
important administrative schemes validly enacted by
Congress, but also this Court’s standing and
legitimacy as a neutral, non-political arbiter of the
law. When properly confined to assertions of agency
authority that are truly “extraordinary,” the major
questions doctrine provides no reason to be skeptical
of the Secretary’s authority to provide targeted debt
relief. After all, “unprecedented circumstances provide
no grounds for limiting the exercise of authorities the
[Secretary] has long been recognized to have.” Biden v.
Missouri, 142 S. Ct. 647, 654 (2022).
The text of the HEROES Act, context in which it
was enacted and subsequently broadened, as well as
historical usage, support the conclusion that the Plan
fits comfortably within the Secretary’s authority to
provide classwide debt relief in response to the
COVID-19 national emergency. The text of the Act
makes explicit that the Secretary may waive or modify
any statutory or regulatory provision governing the
student financial assistance programs of Title IV of the
Higher Education Act as he deems necessary to ensure
that borrowers are not in a worse financial position
with respect to their federal student loans because of
a national emergency. Congress’s enactment of the
HEROES Act shortly after September 11, at a time
when Congress conferred on a host of executive
agencies authority to take action necessary to respond
4
to and recover from those attacks, is consistent with
the text’s expansive language. Congress’s 2003
amendment of the HEROES Act, providing that the
Secretary can act in response to not only terrorist
attacks, but a war or other military operation or
national emergency, reinforces the breadth of the
Secretary’s authority. And the Secretary’s exercise of
that authority in the intervening 20 years to provide
classwide debt relief is consistent with the Secretary’s
exercise of that authority in the Debt Relief Plan.
Just as the HEROES Act, on its face and in
context, furnishes the Secretary with authority to
implement the Debt Relief Plan, the major questions
doctrine does not call the Secretary’s authority into
doubt. This Court has applied the major questions
doctrine only in in certain “extraordinary cases” where
an agency claimed “‘an unheralded power’
representing a ‘transformative expansion in [its]
regulatory authority.’” West Virginia v. EPA, 142 S. Ct.
2587, 2608–2610 (2022) (quoting Utility Air
Regulatory Group v. EPA, 573 U.S. 302, 324 (2014)).
The Secretary’s Plan does not present such an
“extraordinary case,” but rather is consistent with the
Secretary’s prior use of that authority and is of a kind
with other statutory powers and policy decisions
conferred on the Secretary in management of student
financial assistance programs under Title IV. And in
any event, the HEROES Act provides a “clear
congressional authorization,” id. at 2609, for the very
action taken here: a waiver or modification of statutory
provisions to ensure student loan borrowers are not
left in a worse position in repaying their federal
student loans because of the COVID-19 national
emergency.
5
ARGUMENT
I.
This Court Must Restrict Application of the
Major Questions Doctrine to Assertions of
Agency
Power
that
Are
Genuinely
“Extraordinary”
This Court has held that, under the major
questions doctrine, certain types of agency actions
cannot be sustained based on a delegation of authority
having a merely “plausible textual basis” in statute;
the class of agency actions subject to this doctrine
must instead be supported by a “clear congressional
authorization” for the power the agency claims. West
Virginia v. EPA, 142 S. Ct. 2587, 2609 (2022) (citations
and quotation marks omitted). This Court has
emphasized, however, that this more stringent
requirement applies only to a narrow class of cases
where the agency’s assertion of authority is truly
“extraordinary.” Id.
In this case, Respondents ask this Court to apply
the major questions doctrine to invalidate agency
action that—while controversial in the currently
polarized political environment—is a predictable
exercise of the authority granted by a clear delegation
of power in a valid Act of Congress. This Court should
not indulge Respondents’ request to extend the
doctrine to apply to circumstances like this. Unless it
remains limited to a subset of cases that (unlike this
one) involve truly “extraordinary” assertions of agency
power, this Court’s use of the major questions doctrine
threatens to do grave harm, not only to the
administration of important administrative schemes
validly enacted by Congress, but also to this Court’s
standing and legitimacy as a neutral, non-political
arbiter of the law.
6
Even when confined to genuinely “extraordinary”
cases, the major questions doctrine represents an
anomaly. It is a significant departure from this Court’s
usual conception of the proper institutional role of
courts in interpreting and applying laws that are
enacted by Congress and administered and enforced
by the Executive. 5 In virtually all other matters, this
Court employs the well-honed tools of judicial review
to apply the relevant statutory language as informed
by its surrounding context, see Abramski v. United
States, 573 U.S. 169, 179 (2014), or defers to an
agency’s reasonable interpretation of a law it has been
charged with administering, see Chevron, U.S.A., Inc.
v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–43
(1984). A new and special requirement that certain
agency action be supported by a “clear congressional
authorization,” West Virginia, 142 S. Ct. at 2609, must
be carefully circumscribed to ensure consistency and
fairness in the law.
Concerns about the role of the major questions
doctrine are amplified even further when this Court is
asked, as it is here, to lower the bar on what qualifies
as “extraordinary” for purposes of applying the
doctrine’s
heightened
clear-authorization
requirement. Chief among these concerns is that
application of the doctrine to defeat agency action
because of its perceived “political” or “economic”
significance removes important deliberative issues
from the hands of the democratically-accountable
branches of government and instead arrogates them to
See Daniel Deacon & Leah Litman, The New Major
Questions Doctrine, 109 VA. L. REV. (forthcoming 2023) (draft at
25–27),
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=
4165724.
5
7
the courts. 6 Such judicial improvisation on the
interpretation and application of statutory texts
“enfeebles the democratic polity.”7 Lawyers who are
“emboldened by [a] courts’ adventurism” in identifying
issue of political or economic significance will “actively
encourage more of it.”8 And political actors who are
unable to prevail in having their preferences adopted
by Congress may nevertheless attempt to essentially
amend or repeal Congress’s handiwork outside of the
legislative process by generating some amount of
political controversy around the application of an
enacted policy.9
Further, special concerns arise when the major
questions doctrine is broadly applied to important
6 See Chad Squitieri, Who Determines Majorness?, 44 HARV.
J. L. & PUB. POL’Y 463, 503–05 (2021) (“The political nature of the
major questions doctrine’s veto is perhaps most obviously
exhibited by the doctrine’s explicit call to consider a question’s
political significance. And the doctrine’s call to additionally
consider economic significance does not save the inquiry from
being political. To the contrary, the economic inquiry highlights
the majorness inquiry’s inherently political focus.”)(internal
quotation marks and citations omitted).
7 Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts 4 (2012).
8 Id.
9 See Deacon & Litman, supra note 5, draft at 38 (arguing
that “the doctrine seems to allow a motivated political party to
functionally amend a statute through political opposition rather
than through the legislative process, despite the doctrine’s
claimed focus on returning issues to the legislative process”); see
also Natasha Brunstein & Richard L. Revesz, Mangling the Major
Questions Doctrine, 74 ADMIN. L. REV. 217, 218 (2022) (explaining
“the Trump Administration construed the major questions
doctrine enormously expansively and inconsistently, in ways
untethered to the Court's jurisprudence, turning it into little
more than an invitation for courts to strike down regulations the
Administration did not favor for policy-based reasons”).
8
statutory
and
administrative
schemes
that
significantly pre-date this relatively new doctrine.
After all, this Court has long understood that Congress
legislates against the backdrop of then-existing law
and judicial interpretations. See Lamar, Archer &
Cofrin, LLP v. Appling, 138 S. Ct. 1752, 1762 (2018)
(concluding that Congress “presumptively was aware
of the longstanding judicial interpretation of the
phrase and intended for it to retain its established
meaning”). It would therefore make little sense for this
Court to require clear authorization in legislation
enacted before Congress even understood that such a
requirement would need to be satisfied. This violates
the basic principle that courts should endeavor to
provide a stable set of interpretive rules so that
Congress's words will function predictably and in a
way that gives effect to legislators’ expected
assumptions about how their words will be
construed. 10
All of this points to the need to confine the major
questions doctrine to the kinds of “exceptional” cases
where the agency action in question is genuinely
unheralded and transformative. For the normal run of
cases—like the present one—this Court should
continue to apply its established modes of statutory
interpretation and deference to administrative
expertise.
See Antonin Scalia & John F. Manning, A Dialogue on
Statutory and Constitutional Interpretation, 80 GEO. WASH. L.
REV. 1610, 1613 (2012) (“Whether or not Congress is always
meticulous, if we don't assume that Congress picks its words with
care, then Congress won't be able to rely on words to specify what
policies it wishes to adopt or, as important, to specify just how far
it wishes to take those policies.”).
10
9
II. The HEROES Act Unambiguously Provides
that the Debt Relief Plan is a Valid Exercise
of the Secretary’s Delegated Authority
To determine whether the HEROES Act
authorizes the Secretary to implement the Debt Relief
Plan, the starting—and ending—point is the Act’s
text. It is evident from the text and structure Congress
chose that the HEROES Act gives the Secretary broad
authority to determine when, and in what manner, to
provide relief to federal student loan borrowers in
times of national emergency. This conclusion finds
additional support, if any is needed, in the historical
context in which the Act was passed and its prior use.
A.
The text of the Act grants the
Secretary broad authority
The breadth of the Secretary’s discretion to enact
the Student Debt Relief Plan is clear from the
HEROES Act’s general grant of authority. Congress
provided that the Secretary “may waive or modify any
statutory or regulatory provision applicable to the
student financial assistance programs under title IV of
the [Higher Education] Act” in connection with “a war
or other military operation or national emergency….”
20 U.S.C. § 1098bb(a)(1) (emphasis added). This
encompasses the Secretary’s proposed waiver and
modification of Higher Education Act provisions to
permit the discharge of up to $20,000 in student loan
debt in connection with the COVID-19 national
emergency.
The Secretary’s authority under the Act is not
boundless and is subject to certain limiting principles.
First, Congress confines any waivers or modifications
to only those recipients of student financial assistance
who are “affected” by a national emergency. An
“affected individual” has been defined to include
10
anyone who “resides or is employed in an area that is
declared a disaster area … in connection with a
national emergency,” 20 U.S.C. § 1098ee(2)(C), which
is satisfied here by the President’s declaration that the
COVID-19 pandemic constitutes such an emergency
and that the entire United States and its territories
are disaster areas pursuant to the emergency. 87 Fed.
Reg. 10,289 (Feb. 23, 2022); FEMA, COVID-19
Disaster Declarations, https://www.fema.gov/disaster/
coronavirus/disaster-declarations.
The Act also limits the Secretary to waiving or
modifying Title IV provisions “as may be necessary to
ensure that” borrowers “who are affected 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)(2)(A). And
Congress ensured against a crabbed reading of this
provision by explicitly providing that the Secretary
could use this authority as he “deems necessary.” Id.
at § 1098bb(a)(1). Given that these provisions are only
applicable in times of national emergency, the Act
provides that “[t]he Secretary is not required to
exercise the waiver or modification authority under
this section on a case-by-case basis.” Id. at
§ 1098bb(b)(3).
As Petitioner has discussed at length (Pet. Br. 8–
11), the Secretary designed the contours of the Plan in
line with these statutory curbs, based on a detailed
analysis of historical evidence of borrower delinquency
and default following national emergencies, current
economic conditions, and borrower surveys. J.A. 233–
239. From that evidence, the Secretary concluded that
borrowers with outstanding loans as of June 30, 2022,
with income of $125,000 in 2020 or 2021 (or $250,000
of household income), are at heightened risk of
becoming delinquent on their student loan payments
11
and falling into default. J.A. 232–233, 245–251. The
evidence also led the Secretary to conclude that, while
eliminating all debt would be the surest way to avert
financial loss, providing relief of up to $10,000 (with
an additional $10,000 for borrowers who received Pell
Grants), will be sufficient to ensure that borrowers will
not be worse off. J.A. 240–244. To accomplish those
objectives, the Secretary’s Plan calls for the
modification of various Higher Education Act
provisions to authorize a one-time discharge for
eligible borrowers. 87 Fed. Reg. 61,512 (Oct. 12, 2022)
(modifying 20 U.S.C. § 1087, 1087dd(g); and 34 C.F.R.
674.51–.65, 682.402, 685.212).
Notably absent from the Act’s limiting principles
is any hint that the Secretary’s authority is cabined by
the expense that the federal government would incur
from a waiver or modification. As this Court long-ago
cautioned, where the “unadorned words” of a statutory
provision are not “in some way limited by
implication… [it] would be dangerous in the extreme
to infer that a case for which the words of an
instrument expressly provide, shall be exempted from
its operation.” Connecticut Nat. Bank v. Germain, 503
U.S. 249, 254 (1992) (quoting Sturges v.
Crowninshield, 4 Wheat. 122, 202 (1819)); see also id.
at 253–54 (“We have stated time and again that courts
must presume that a legislature says in a statute what
it means and means in a statute what it says there.”);
Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548
U.S. 291, 296 (2006) (“When the statutory language is
plain, the sole function of the courts—at least where
the disposition required by the text is not absurd—is
to enforce it according to its terms.”) (internal
quotation marks omitted). To do otherwise would, as
Justice Brandeis explained nearly a century ago in
refusing to supply a term not found in a statute’s text,
12
“transcend[] the judicial function.” Iselin v. United
States, 270 U.S. 245, 250–51 (1926).
B.
The breadth of authority assumed
here is consistent with the context in
which the Act was enacted, amended,
and made permanent
The Secretary’s authority to issue the Student
Debt Plan is further confirmed by the statutory
context of the HEROES Act’s original passage, as well
as by the context of its subsequent amendment and
reenactment.
In the immediate aftermath of the September 11
terrorist attacks, Congress passed sweeping
legislation authorizing the Executive Branch to
protect against future attacks and take steps to
recover from this generation-defining tragedy. 11
Congress quickly passed the Authorization for Use of
Military Force (AUMF) Joint Resolution, providing
expansive authority for the President “to use all
necessary and appropriate force” against all those who
“planned, authorized, committed, or aided the terrorist
attacks that occurred on September 11, 2001, or
harbored such organizations or persons….” Pub. L. No.
107-40, § 2, 115 Stat 224 (2001). Shortly thereafter,
Congress passed the Uniting and Strengthening
America by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism (USA PATRIOT)
Act of 2001, which vastly expanded the authority of
law enforcement agencies, including the Departments
of Justice, Defense, Treasury, and State, to respond to
Madeleine Carlisle, How 9/11 Radically Expanded the
Power of the U.S. Government, TIME (Sep. 11, 2021) (“One of the
most significant—and lasting—changes was a massive expansion
of executive power that transformed entire portions of America’s
legal landscape.”).
11
13
the September 11 attacks. Pub. L. No. 107-56, 115 Stat
272 (2001).
Just as those measures sought to protect against
future attacks, Congress took action to help Americans
recover from the financial upheaval that followed from
September 11. For instance, Congress quickly
appropriated $20 billion to the State of New York and
granted flexibility to federal agencies responsible for
administering disaster relief to do so quickly. 12
In December 2001 Congress unanimously passed
the HEROES Act of 2001 to enable the Secretary of
Education to provide financial relief to federal student
loan borrowers. Pub. L. No. 107-122, 115 Stat. 2386
(2002). In its initial form, the HEROES Act authorized
the Secretary to issue waivers and modifications
deemed necessary in connection with the September
11 attacks for the following two years. Id. at § 2(a)(1),
115 Stat. 2386. Two years later, Congress not only
extended the HEROES Act through 2005, but
broadened the Secretary’s authority to its present
form, allowing the Secretary to act in response to any
“war or other military operation or national
emergency.” HEROES Act of 2003, Pub. L. No. 108-76,
§ 6, 117 Stat. 908 (20 U.S.C. § 1098bb(a)(1)). Congress
extended the Act again in 2005. Act of Sept. 30, 2005,
Pub. L. No. 109-78, § 1, 119 Stat. 2043. Congress
subsequently removed the sunset provision altogether
in 2007, thereby making permanent the Secretary’s
waiver and modification authority. Act of Sept. 30,
2007, Pub. L. No. 110-93, § 2, 121 Stat. 999.
Subcomm. on Mgmt., Integration & Oversight of the
House Comm. on Homeland Sec., An Examination Of Federal
9/11 Assistance To New York: Lessons Learned In Preventing
Waste, Fraud, Abuse And Lax Management 3 (Aug. 2006),
https://www.govinfo.gov/content/pkg/CPRT-109HPRT20452/
html/CPRT-109HPRT20452.htm.
12
14
Several conclusions can be drawn from Congress’s
subsequent enactments. First, expanding the
Secretary’s authority is a recognition that the same
flexibility to avoid financial loss following September
11 is also necessary following other national
emergencies. Second, the sunset provision that may
have provided a “spoonful of sugar” effect for
legislators wary of conferring expansive emergency
powers to the Executive Branch,13 proved unnecessary
as the Act’s value came into focus in intervening
years. 14
While Respondents and their supporters claim
that the Secretary’s authority is somehow
circumscribed, the text and history of the HEROES
Act demonstrate that Congress understood broad
authority was warranted. See Marinello v. United
States, 138 S. Ct. 1101, 1117 (2018) (Thomas, J.
dissenting) (“Whether or not we agree with Congress'
judgment, we must leave the ultimate ‘[r]esolution of
the pros and cons of whether a statute should sweep
broadly or narrowly ... for Congress.’”) (quoting United
States v. Rodgers, 466 U.S. 475, 484 (1984)). And there
is no reason to believe Congress was unaware that the
Secretary’s future exercise of the Act’s authority could
come at great expense. In 2007, the same year
13 Chris Mooney, A Short History of Sunsets, LEGAL AFFAIRS
(Jan. 2004) (“Under the Bush Administration, sunsetting has
been reduced to a spoonful of sugar that helps controversial
legislation
go
down.”),
https://www.legalaffairs.org/
issues/January-February-2004/story_mooney_janfeb04.msp.
John E. Finn, Sunset Clauses and Democratic
Deliberation: Assessing the Significance of Sunset Provisions in
Antiterrorism Legislation, 48 COLUM. J. TRANSNAT’L L. 442, 447
(2010) (explaining that sunset provisions can be understood as
“providing the legislature with periodic opportunities to revisit
questions with the additional information or experience
necessary to adjust or to recalibrate public policy”).
14
15
Congress made permanent the Secretary’s HEROES
Act authority, the federal government’s student loan
portfolio consisted of $516 billion in loans owed by 28.3
million borrowers, an amount that would continue to
increase at rapid pace. 15 Moreover, while the Debt
Relief Plan involves significant sums of money in the
aggregate, that alone does not warrant a different
level of scrutiny or skepticism, as discussed infra,
Section III, for “the Court’s task is to discern and apply
the law’s plain meaning as faithfully as [it] can, not ‘to
assess the consequences of each approach and adopt
the one that produces the least mischief.’” BP P.L.C. v.
Mayor & City Council of Baltimore, 141 S. Ct. 1532,
1542 (2021) (quoting Lewis v. Chicago, 560 U.S. 205,
217 (2010)). Accordingly, to the extent that an
inference can (or should) be drawn about whether
Congress was aware of the potential expense of
modifying “any statutory or regulatory provision,” it
should be drawn in the Secretary’s favor. 20 U.S.C.
§ 1098bb(a)(1).
C. The Secretary’s Plan is consistent with
other pandemic-related invocations of
the Act
Finally, having shown that the Secretary’s plan is
in accord with the Act’s text and context in which it
was enacted, amended, and made permanent, it is
worth briefly reviewing how the Secretary’s exercise of
authority here is similar to, and consistent with, prior
exercises of that authority during the pandemic.
On March 20, 2020, days after President Trump
declared that the COVID-19 pandemic constitutes a
national emergency, 85 Fed. Reg. 15,337 (Mar. 13,
Nat’l Student Loan Data Sys., Federal Student Aid
Portfolio Summary, https://studentaid.gov/sites/default/files/
fsawg/datacenter/library/PortfolioSummary.xls.
15
16
2020), then-Secretary of Education Betsy DeVos
invoked her HEROES Act authority to modify a
number of statutory and regulatory provisions in order
to provide relief to all federal student loan borrowers.
85 Fed. Reg. 79,856 (Dec. 11, 2020). She ordered the
Department to place federal loans into administrative
forbearance automatically and reduce the interest rate
on those loans to 0%. 16 She also ordered loan servicers
to suspend the seizure of wages, tax refunds, Social
Security payments, and federal benefits from
borrowers with defaulted student loans, and to refund
amounts garnished after March 13. 17
Notably, the Secretary did not limit the class of
borrowers who would receive relief, through meanstesting or otherwise, or consider whether there were
any borrowers who were not at risk of being left in a
worse position relative to their student loans because
of the pandemic. Rather, she “deem[ed] necessary”
relief for all borrowers.
Congress stepped in temporarily to furnish
student debt relief as part of the $2.2 trillion
Coronavirus Aid, Relief, and Economic Security
(CARES) Act, which included temporarily codifying
many provisions of Secretary’s DeVos’s student loan
relief, through September 30, 2020. Pub. L. No. 116136, § 3513, 134 Stat. 4, 404 (2020). As that expiration
16 U.S. Dep’t of Educ., Secretary DeVos Extends Student Loan
Forbearance Period Through January 31, 2021, in Response to
COVID-19
National
Emergency
(Dec.
4,
2020),
https://content.govdelivery.com/accounts/USED/bulletins/
2afbc4b.
17 Elissa Nadworny, Education Dep’t Will Stop Collections on
Student Borrowers in Default, NPR (Mar. 25, 2020),
https://www.npr.org/sections/coronavirus-live-updates/2020/03/
25/821383576/education-dept-will-stop-collecting-on-studentborrowers-in-default.
17
date approached, President Trump issued a
Memorandum extolling the benefit of this student debt
relief implemented by his Administration: “This relief
has helped many students and parents retain financial
stability. And many other Americans have continued
to routinely pay down their student loan balances, to
more quickly eliminate their loans in the long run.
During this time, borrowers have been able to
determine the best path forward for themselves.” 85
Fed. Reg. 157 (Aug. 8, 2020). Understanding the
continued toll of the pandemic, President Trump
directed Secretary DeVos to continue the payment
pause and interest rate reduction until December 30,
2020. Id.
In December 2020, Secretary DeVos extended this
debt relief through January 31, 2021. 18 While
asserting that “Congress, not the Executive Branch, is
in charge of student loan policy,” she explained that
“[t]he coronavirus pandemic has presented challenges
for many students and borrowers, and this temporary
pause in payments will help those who have been
impacted.” 19
Following
the
change in
the
Administration, Secretary Miguel Cardona extended
this relief several more times, most recently until 60
days after the Department is permitted to implement
its Debt Relief Plan or this litigation is resolved. 20
18 U.S. Dep’t of Educ., Secretary DeVos Extends Student Loan
Forbearance Period Through January 31, 2021, in Response to
COVID-19 National Emergency (Dec. 4, 2020), https://content.
govdelivery.com/accounts/USED/bulletins/2afbc4b.
19
Id.
20 U.S. Dep’t of Educ., Biden-Harris Administration
Continues Fight for Student Debt Relief for Millions of Borrowers,
Extends Student Loan Repayment Pause (Nov. 22, 2022),
https://www.ed.gov/news/press-releases/biden-harris(continued . . .)
18
The cost of these measures, including the
payment pause, interest rate reduction, and other
COVID-related student debt relief (but not the Plan
under consideration here), is substantial. The federal
government has determined that, as of April 2002,
these debt relief measures had cost the federal
government $102 billion or roughly $5 billion each
month. 21 While the scope of this relief is certainly
expansive, it is the natural result of waiving statutory
and regulatory provisions that govern a student debt
portfolio that had ballooned to more than $1.5 trillion
owed by more than 42 million borrowers at the outset
of the pandemic. 22
Fortunately, in the wake of September 11,
Congress foresaw a need for flexible and widespread
student debt relief, which is precisely what the
Secretary seeks to accomplish in response to another
generation-defining tragedy—the COVID pandemic—
through the Debt Relief Plan. The Respondents’
attempt to challenge that authority is nothing more
than a policy disagreement cloaked in legal argument,
administration-continues-fight-student-debt-relief-millionsborrowers-extends-student-loan-repayment-pause.
U.S. Gov’t Accountability Off., Student Loans: Education
Has Increased Federal Cost Estimates of Direct Loans by
Billions due to Programmatic and Other Changes 14 (July 2022);
see also Travis Hornsby, The Cost of the Student Loan Pause
Now Exceeds the Cost of Student Loan Cancellation, STUDENT
LOAN PLANNER (Dec. 19, 2022), https://www.studentloanplanner.
com/cost-student-loan-pause/ (explaining cost is potentially far
higher than government estimate, which does not account for
the fact that payments not made due to pause will nevertheless
count towards other loan forgiveness programs and therefore
will never be paid).
21
22 Nat’l Student Loan Data Sys., supra note 15.
19
which is better directed at the politically accountable
branches of government.
III. The Major Questions Doctrine Does Not Bar
the Secretary’s Plan
Faced with the reality that the Debt Relief Plan
fits neatly within the Secretary’s HEROES Act
authority, Respondents look to the “major questions
doctrine” to invite this Court to evaluate the
Secretary’s authority from that exceedingly limited
exception to this Court’s usual jurisprudence. But the
Plan represents a straightforward exercise of
authority vested (and revested) by Congress, rather
than the type of metamorphic change that this Court
has flagged may raise a “major question.”
In West Virginia v. EPA, this Court articulated a
two-pronged test for identifying when it is confronted
with a truly “extraordinary” assertion of an agency’s
regulatory authority. 142 S. Ct. 2587, 2608 (2022)
(quoting FDA v. Brown & Williamson Tobacco Corp.,
529 U.S. 120, 159 (2000)). Moving forward, a court
must ask whether the agency claimed to discover “‘an
unheralded power’ representing a ‘transformative
expansion in [its] regulatory authority.’” Id. at 2610
(quoting Utility Air Regulatory Group v. EPA, 573 U.S.
302, 324 (2014)). This advancement in the major
questions doctrinal evolution “eschews an amorphous
multi-factor test of economic and political significance”
present in earlier cases.23
23 Natasha Brunstein & Donald Goodson, Unheralded and
Transformative: The Test for Major Questions After West Virginia,
47 WM. & MARY ENV’T L. & POL’Y REV. (forthcoming 2023) (draft
at 23), https://ssrn.com/abstract=4300622; see also id. (theorizing
that the West Virginia test reduces the “know it when you see it”
aspect of the doctrine) (quoting U.S. Telecom Ass’n v. FCC, 855
(continued . . .)
20
The lower court’s decision in Brown distorts this
“crystallization of the long-developing major-questions
doctrine” by announcing that “the major-questions
doctrine applies if an agency claims the power to make
decisions of vast ‘economic and political significance.’”
J.A. 288. Reducing the major questions doctrine to the
“economic and political significance” of the action
taken fails to account for “‘the nature of the question
presented’—whether Congress in fact meant to confer
the power the agency has asserted.” West Virginia, 142
S. Ct. at 2608 (quoting Brown & Williamson Tobacco
Corp., 529 U.S. at 159). This cannot be accomplished
by the simple artifice of repeating the projected cost of
the program over and over, as did the district court
judge in Brown, J.A. 263, 284, 289, 291, 296, and the
Respondent did in opposing Petitioner’s application
before this Court to stay the lower court’s judgment,
Resp. to App. To Stay the Judgment 1, 6, 9, 18, 20, 25,
28.
A.
The
Secretary’s
unheralded
Plan
is
not
In analyzing whether the Secretary’s Plan
represents the exercise of “unheralded power,” West
Virginia teaches that it is necessary to determine “the
extent of power conveyed by general statutory
language” by review of the agency’s “established
practice.” 142 S. Ct. at 2610 (quoting FTC v. Bunte
Bros., Inc., 312 U.S. 349, 352 (1941)). Here, the
Secretary’s Plan goes no “further than what the
Secretary has done in the past” under the HEROES
Act, Biden v. Missouri, 142 S. Ct. 647, 653 (2022),
albeit it on a somewhat different scale.
F.3d 381, 481 (D.C. Cir. 2017) (per curiam) (Kavanaugh, J.
dissenting from denial of rehearing en banc)).
21
The Secretary has historically used its HEROES
Act authority to grant relief to borrowers in federally
declared disaster areas nationwide. Since its
enactment, the Secretary has maintained a standing
authority to provide relief to all borrowers that reside
or work in any federally declared disaster area in
connection with a national emergency when the need
arises. 82 Fed. Reg. 48,195 (Oct. 12, 2017) (describing
history of standing order and extending it through
2022). Although there have been mercifully few longterm national emergencies warranting the exercise of
the Secretary’s authority since it was expanded in
2003, as discussed above, see pp. 16, supra, the
Secretary’s Debt Relief Plan is not only consistent
with, but in important respects more limited than,
prior exercises of HEROES Act authority.
In 2017, for instance, the Secretary placed a “large
influx of borrowers … into mandatory administrative
forbearance” in response to several natural disasters,
including Hurricanes Harvey, Irma, and Maria and
the California wildfires.24 The Secretary did so
without regard to the recipients’ income or other
financial circumstances. Likewise, at the outset of the
pandemic the Secretary placed all loans into
forbearance, including those that came into repayment
in the years that followed, and reduced interest to 0%
automatically, without as much as a request from the
borrower, and without any determination of which
affected individuals were at risk of being left worse off
financially. By contrast, in his Debt Relief Plan under
review here, the Secretary modified statutory and
U.S. Dep’t of Educ., Federal Student Aid Posts New
Reports to FSA Data Center (Aug. 7, 2019), https://fsapartners.
ed.gov/knowledge-center/library/electronic-announcements/
2019-08-07/federal-student-aid-posts-new-reports-fsa-datacenter#.
24
22
regulatory provisions only to the extent he deemed
necessary to ensure affected individuals were not left
worse off financially. 87 Fed. Reg. 61,512 (Oct. 12,
2022).
The Secretary has also historically utilized
waivers and modifications that have had the effect of
reducing borrowers’ total repayment obligation. For
example, the Department has waived the statutory
obligation to repay Title IV grant funds for borrowers
who withdrew from school in a disaster area and
waived borrowers’ obligation to pay interest accrued
on subsidized Stafford Loans while their enrollment
was interrupted by a national emergency. 68 Fed. Reg.
69,312 (Dec. 12, 2003). Both of these waivers
effectively reduced borrowers’ total repayment
obligation.
The Secretary’s modifications in the Plan under
review is consistent with these prior exercises of
authority. And in contrast to the automatic
forbearance and interest rate reduction afforded to all
borrowers throughout the COVID-19 pandemic, and
the broad relief afforded to all borrowers in hurricanestricken disaster areas, in the Plan the Secretary
affords relief to a narrower class of borrowers based on
careful deliberation of who is at risk and how much
relief is necessary to reduce that risk. See pp. 10–11,
supra. This does not come close to the sweeping
expansions of regulatory jurisdiction that this Court
has previously considered unheralded in its decisions
leading to West Virginia. See, e.g., Utility Air, 573 U.S.
at 328 (concluding that EPA’s application of PSD and
Title V programs to “small sources that Congress did
not expect” which increased regulated entities from
“15,000 to about 6.1 million” was “unheralded”);
Alabama Ass’n of Realtors v. Dep’t of Health & Hum.
Servs., 141 S. Ct. 2485, 2489 (2021) (“Since that
23
provision’s enactment in 1944, no regulation premised
on it has even begun to approach the size or scope of
the eviction moratorium.”).
B.
The Secretary’s Plan is not a
“transformative expansion” of the
Department’s regulatory authority
Precedent dictates that an “extraordinary” case
must also present a “transformative expansion in [the
agency’s] regulatory authority.” West Virginia, 142
S. Ct. at 2612 (quoting Utility Air, 573 U.S. at 234).
Such expansions typically come before this Court in
one of two forms: a claim to power that the statutory
scheme was “not designed to grant,” Utility Air, 573
U.S. at 324, or an assertion of jurisdiction by an agency
with “no expertise in crafting…policy of [the] sort,”
King v. Burwell, 576 U.S. 473. 486 (2015). The
Secretary’s Plan does not expand the Department’s
regulatory authority in either sense.
First, even prior to the HEROES Act, Congress
had already entrusted the Secretary with the broad
authority to alter borrowers’ debt obligations in
several provisions throughout the Higher Education
Act. The statutory and regulatory provisions modified
by the Secretary’s Plan already provide for discharge
of a borrower’s liability on their federal student loans,
including interest and fees, in a number of instances.
See 87 Fed. Reg. 61,512 (Oct. 12, 2022) (modifying 20
U.S.C. § 1087, 1087dd(g); and 34 C.F.R. §§ 674.51–.65,
682.402, 685.212). Separately, Congress explicitly
granted the Secretary the power to modify as well as
“compromise, waive, or release” federal student loan
debt “in carrying out the provisions” of the student
loan program created by the Higher Education Act.
20 U.S.C. § 1087hh(1)–(2). Furthermore, the Secretary
is authorized to “repay or cancel any outstanding
balance of principal and interest due” by a borrower
24
who fulfills the requirements of certain forgiveness
plans set forth in the Higher Education Act. See 20
U.S.C. § 1098e (income-based repayment); 20 U.S.C.
§ 1087e(m) (repayment plan for public service
employees). Thus, the Higher Education Act was
“designed to grant” the kind of power that the
Secretary intends to exercise here, the power to
permanently reduce the amount owed by a borrower.
Utility Air, 573 U.S. at 324.
Furthermore, the Plan does not effect a
“‘fundamental revision of the statute, changing it from
[one sort of] scheme of ... regulation’ into an entirely
different kind.” West Virginia, 142 S. Ct. at 2612
(quoting MCI Telecomms. Corp. v. AT&T, 512 U.S.
218, 231 (1994)). The Department is not “eliminat[ing]
a crucial provision of the statute” for all borrowers for
the foreseeable future. MCI, 512 U.S. at 231. For the
approximately 23 million borrowers that will see their
loan balances reduced but not eliminated, J.A. 243,
repayment on the remaining balance will proceed
under the exact statutory terms it did before. The
same is true for all borrowers with loans disbursed
after June 30, 2022, who will not receive relief under
the Secretary’s Plan. In other words, while this action
may alter the scope of the federal student aid portfolio
in the short-term, it does not change the Department’s
role in managing and overseeing outstanding federal
student debt for the future.
Second, the Secretary is not making a “very
different kind of policy judgment” than Congress
anticipated in enacting the HEROES Act, West
Virginia, 142 S. Ct. at 2612, nor is the Secretary
deploying “technical and policy expertise not
traditionally needed” for the management of federal
student loans, id. The Secretary drew the Plan’s
eligibility parameters based on the Department of
25
Education’s
determination
that
lower-income
borrowers are at high risk of default when the waiver
provisions expire and repayment resumes. J.A. 233–
234. This is precisely the sort of policy judgment that
Congress empowered the Secretary to make as he
“deems necessary” when it enacted the HEROES Act.
20 U.S.C. § 1098bb(a)(1). Moreover, the Secretary
exercises the very same technical and policy expertise
in carrying out the income-based repayment program
established by section 493C of the Higher Education
Act, where the Secretary is authorized to determine
borrower’s monthly repayment amounts by virtue of
their financial position and potential for financial
hardship in making payments. Id. at § 1098e.
While Respondents and others have attempted to
make much of bills introduced in Congress to grant
student debt relief, that has no bearing on whether the
Secretary’s Plan constitutes a “transformative
expansion” of the Secretary’s authority. The bills
referenced by the lower court in Brown, J.A. 265, were
not an “unsuccessful attempt [by the Secretary] to
secure from Congress an express grant of [the
challenged] authority” under the HEROES Act. Bunte
Bros., 312 U.S. at 352. These bills were of a different
nature and a different scope than the Secretary’s Plan
for they were untethered to the COVID-19 national
emergency. 25 But even if these bills would have
accomplished similar debt-relief goals, the fact that
they were not passed does not suggest that the
25 See Student Debt Relief Act of 2019, S. 2235, 116th Cong.
(2019) (providing various forms of relief, including discharge of
up to $50,000 of student debt based on income, refinancing loans
at lower interest rate, and making student loans dischargeable in
bankruptcy proceedings); Income-Driven Student Loan
Forgiveness Act, H.R. 2034, 117th Cong. (2021) (forgiving up to
$100,000).
26
Secretary’s Plan constitutes a transformative
expansion of the Secretary’s authority under existing
law. “[S]peculation about why a later Congress
declined to adopt new legislation offers a particularly
dangerous basis on which to rest an interpretation of
an existing law a different and earlier Congress did
adopt.” Bostock v. Clayton County, 140 S. Ct. 1731,
1747 (2020) (internal quotation marks omitted); see
also Sullivan v. Finkelstein, 496 U.S. 617, 632 (1990)
(Scalia, J., concurring) (“Arguments based on
subsequent legislative history . . . should not be taken
seriously, not even in a footnote.”).
Moreover, if anything is to be gleaned from
unenacted bills, it must be pointed out that numerous
bills were also introduced to prohibit broad student
debt relief. 26 One such bill sought to amend the
HEROES Act to provide that “the President or the
Secretary of Education may not cancel the outstanding
balances, or a portion of the balances, on covered loans
due to the COVID–19 national emergency or any other
national emergency.” Stop Reckless Student Loan
Actions Act of 2022, H.R. 7656, 117th Cong. (2022).
Under Respondents’ logic, this bill could be read as
establishing that the Secretary has the authority that
this bill sought to revoke.
Rather than look to this unenacted legislation in
an effort to divine congressional intent, one can
instead find additional support for the Secretary’s
broad debt cancellation authority in the American
Rescue Plan Act of 2021, Pub. L. No. 117-2, § 9675, 135
26 See, e.g., Debt Cancellation Accountability Act, S. 4483,
117th Cong. (2022) (barring class-based student loan
forgiveness); Student Loan Accountability Act, H.R. 8102, 117th
Cong. (2022) (prohibiting Executive Branch agencies from
cancelling or forgiving student loans).
27
Stat. 185-186 (2021) (26 U.S.C. §108(f)(5)). Enacted to
provide far-reaching pandemic-related economic relief,
the Act provides that student loans “discharge[d] (in
whole or part)” are not subject to taxation through
2025. Id. The broad exemption is in contrast to other
tax exemptions that are limited to discharges made
pursuant to specific programs enumerated in the
Higher Education Act. See 26 U.S.C. § 108(f)(1)
(permanently
exempting
employment-related
discharges such as Public Service Loan Forgiveness
and Teacher Loan Forgiveness); see also Act of Dec. 22,
2017, Pub. L. No. 115-97, § 11031, 131 Stat. 2054, 2081
(2017), amended by Pub. L. No. 117-2, § 9675
(exempting discharges for Total and Permanent
Disability from 2018 through 2025). The breadth of
this provision indicates Congress’s anticipation that
the Executive branch would implement broad student
debt relief. See Sen. Menendez, Press Release,
Menendez, Warren Bill to Make Student Loan Relief
Tax-Free Passes as Part of COVID Relief Package,
Clearing Hurdle for Broad Loan Forgiveness (Mar. 6,
2021) (“The student loan tax relief legislation paves
the way for President Biden to cancel at least $50,000
in federal student loan debt.”). This concurrent call for
broad student debt relief “provides important context
to Congress’s enactment” of this tax exemption. See
Brown & Williamson, 529 U.S. at 157 (emphasizing
that “when Congress created a distinct regulatory
scheme addressing the subject of tobacco and health,
it understood that the FDA is without jurisdiction to
regulate tobacco products and ratified that position.”).
C.
The Secretary’s Plan is justified by clear
congressional authorization
Even if the Secretary’s Plan did present the kind
an “extraordinary” exercise of agency authority
covered by the major questions doctrine, it is
28
nevertheless valid because it is supported by “clear
congressional authorization.” West Virginia, 142 S. Ct.
at 2614. As already explained, see supra Sec. II, the
Plan is authorized by the plain text of the HEROES
Act as further demonstrated by the historical context
in which it was enacted and its use during prior
emergencies. The Secretary’s Plan modifies the statute
and regulatory provisions providing for the discharge
of borrower liability on their federal student loans for
borrowers residing in a disaster area declared in
connection with the COVID-19 national emergency,
which the Secretary “deem[ed] necessary,” after
studied review, to reduce the likelihood of delinquency
and default on student loans. In stark contrast to the
regulatory action at issue in West Virginia, there are
no “definitional possibilities” at play, 142 S. Ct. at
2614, nor does the Secretary seek to “exploit some gap,
ambiguity, or doubtful expression” in the statute, id.
at 2620 (Gorsuch, J. concurring). Accordingly, even if
the Plan raises a “major question,” it is a valid exercise
of the Secretary’s HEROES Act authority.
29
CONCLUSION
The judgments of the courts of appeals should be
reversed and remanded with instructions to enter
judgment in favor of Petitioners.
Respectfully submitted,
January 11, 2023
ALICE O’BRIEN
Counsel of Record
JEFFREY W. BURRITT
National Education
Association
1201 Sixteenth Street, N.W.
Washington, D.C. 20036
(202) 822-7035
aobrien@nea.org
Counsel for Amicus Curiae
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