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 and 22-535
In the Supreme Court of the United States
JOSEPH R. BIDEN, PRESIDENT OF THE UNITED STATES,
ET AL.,
Petitioners,
v.
STATE OF 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
Fifth and Eighth Circuits
BRIEF OF LEGAL SCHOLARS AS AMICI
CURIAE IN SUPPORT OF PETITIONERS
JEFFREY B. DUBNER
Counsel of Record
SEAN A. LEV
AMAN T. GEORGE
SARAH R. GOETZ
Democracy Forward
Foundation
P.O. Box 34553
Washington, DC 20043
(202) 383-0794
jdubner@democracyforward.org
Counsel for Amici Curiae
i
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES...................................... iii
INTERESTS OF THE AMICI CURIAE .....................1
INTRODUCTION AND SUMMARY OF
ARGUMENT ...............................................................3
ARGUMENT ...............................................................6
I. The text of the HEROES Act of 2003
authorizes the Secretary’s action. .........................6
A. The Act authorizes the Secretary of
Education to waive or modify the
provisions of Title IV waived here. ..................6
B. The COVID-19 pandemic created a
“national emergency” that authorizes
the Secretary to waive or modify the
provisions at issue here. ...................................7
C. Lower-income student borrowers are
“affected individuals.”..................................... 10
D. The Secretary reasonably concluded
that debt relief is “necessary to ensure
that” borrowers are not “placed in a
worse position financially” due to the
national emergency. ....................................... 12
II. The major questions doctrine does not bar
the Secretary’s action........................................... 14
A. The Secretary’s action does not trigger
the doctrine. .................................................... 14
1. The Secretary’s action is not
unheralded. ................................................ 16
2. The Secretary’s action does not
transform the Department’s
regulatory authority. ................................. 19
ii
TABLE OF CONTENTS—continued
Page
3. The economic and political
significance of the Secretary’s action
do not trigger the doctrine. ....................... 21
B. The Secretary’s action is justified by
clear congressional authorization. ................. 26
CONCLUSION .......................................................... 27
iii
TABLE OF AUTHORITIES
Page(s)
Cases
Ala. Ass’n of Realtors v. HHS,
141 S. Ct. 2485 (2021) ....................... 15, 18, 20, 24
Biden v. Missouri,
142 S. Ct. 647 (2022) ....................................... 9, 16
Bostock v. Clayton County,
140 S. Ct. 1731 (2020) ......................................... 26
FCC v. Prometheus Radio Project,
141 S. Ct. 1150 (2021) ......................................... 13
FDA v. Brown & Williamson
Tobacco Corp.,
529 U.S. 120 (2000) ................................. 14, 15, 25
Gonzales v. Oregon,
546 U.S. 243 (2006) ................................. 15, 20, 24
Hardt v. Reliance Standard Life Ins. Co.,
560 U.S. 242 (2010) ............................................... 6
Horne v. Flores,
557 U.S. 433 (2009) ............................................. 11
Indus. Union Dep’t, AFL-CIO v.
Am. Petroleum Inst.,
448 U.S. 607 (1980) ......................................... 5, 24
Johnson v. Transp. Agency,
480 U.S. 616 (1987) ............................................. 25
King v. Burwell,
576 U.S. 473 (2015) ............................................. 24
Kisor v. Wilkie,
139 S. Ct. 2400 (2019) ......................................... 20
MCI Telecomms. Corp. v.
Am. Tel. & Tel. Co.,
512 U.S. 218 (1994) ............................... 6, 7, 19, 20
iv
TABLE OF AUTHORITIES—continued
Page(s)
NFIB v. OSHA,
142 S. Ct. 661 (2022) ..................6, 9, 15, 16, 20, 26
Texas v. EPA,
983 F.3d 826 (5th Cir. 2020) ............................... 14
Trump v. Hawaii,
138 S. Ct. 2392 (2018) ................................... 13, 14
Utility Air Regul. Grp. v. EPA,
573 U.S. 302 (2014) ..............5, 6, 14, 15, 19, 20, 25
Webster v. Doe,
486 U.S. 592 (1988) ............................................. 14
West Virginia v. EPA,
142 S. Ct. 2587 (2022) .... 5, 14-15, 18-20, 23-25, 27
Whitman v. Am. Trucking Ass’ns,
531 U.S. 457 (2001) ............................................. 20
Wis. Cent. Ltd. v. United States,
138 S. Ct. 2067 (2018) ......................................... 11
Statutes
20 U.S.C. § 1080 ....................................................... 27
20 U.S.C. § 1087a ....................................................... 7
20 U.S.C. §§ 1087a-1087j ......................................... 26
20 U.S.C. § 1087e ................................................. 7, 27
20 U.S.C. § 1087dd ............................................... 7, 27
20 U.S.C. § 1087hh ................................................... 19
20 U.S.C. §§ 1098aa-1098ee ..................................... 20
20 U.S.C. § 1098bb ............ 4, 6, 7, 9, 11, 12, 13, 21, 26
20 U.S.C. § 1098ee........................................ 10, 11, 26
40 U.S.C. § 3147 ......................................................... 9
43 U.S.C. § 1341 ......................................................... 9
v
TABLE OF AUTHORITIES—continued
Page(s)
46 U.S.C. § 8301 ......................................................... 9
Act of Aug. 18, 2003, Pub. L. No. 108-76,
117 Stat. 904 (Aug. 18, 2003) ............................. 20
American Rescue Plan Act of 2021,
Pub. L. No. 117-2, 135 Stat. 4
(Mar. 11, 2021) .................................................... 26
Regulations
34 C.F.R. Part 674 ...................................................... 7
34 C.F.R. § 682.102 .................................................. 27
34 C.F.R. § 682.402 .............................................. 7, 27
34 C.F.R. § 685.207 ................................................. 27
34 C.F.R. § 685.212 .................................................... 7
34 C.F.R. §§ 685.212-218 ......................................... 27
68 Fed. Reg. 69,312 (Dec. 12, 2003) ................... 17, 18
85 Fed. Reg. 15,337 (Mar. 13, 2020) .......................... 7
85 Fed. Reg. 61,505 (Sept. 29, 2020) ....................... 23
85 Fed. Reg. 72,158 (Nov. 12, 2020) ........................ 23
85 Fed. Reg. 79,856 (Dec. 11, 2020) ................... 17, 18
87 Fed. Reg. 10,289 (Feb. 18, 2022) ........................... 7
87 Fed. Reg. 61,512 (Oct. 12, 2022) ........................... 7
Other Authorities
Assistance for Housing and Other Needs,
FEMA, https://bit.ly/3tTPoqE
(last updated Oct. 13, 2022)................................ 10
vi
TABLE OF AUTHORITIES—continued
Page(s)
Natasha Brunstein & Donald L. R. Goodson,
Unheralded and Transformative: The
Test for Major Questions After West
Virginia, 47 Wm. & Mary Env’t L. &
Pol’y Rev. (forthcoming 2023) ....................... 21, 22
COVID-19 Disaster Declarations, FEMA,
https://bit.ly/3gh1uXZ (last updated
Aug. 20, 2021) ..................................................... 10
FEMA, Disaster Relief Fund: Monthly
Report as of November 30, 2022,
https://bit.ly/3GRtU5g........................................... 8
H.R. 2034, 117th Cong. (2021) ................................. 25
H.R. 6800, 116th Cong. (2020) ................................. 25
Letter from Phillip L. Swagel, Director,
Cong. Budget Office, to Members
of Congress (Sept. 26, 2022),
https://bit.ly/3U71fwE ......................................... 22
Edouard Mathieu et al., Coronavirus
(COVID-19) Cases, Our World in
Data, https://bit.ly/3AuMyMQ
(last updated Jan. 11, 2023) ................................ 8
Pausing Federal Student Loan Payments,
White House Statements & Releases
(Jan. 20, 2021), https://bit.ly/3UmyWKZ ........... 17
President Donald J. Trump Approves
Missouri Disaster Declaration,
White House Statements & Releases
(Mar. 26, 2020), https://bit.ly/3EHvbL9 ............. 10
vii
TABLE OF AUTHORITIES—continued
Page(s)
Press Release, U.S. Dep’t of Educ.,
Biden-Harris Administration Continues
Fight for Student Debt Relief for
Millions of Borrowers (Nov. 22, 2022),
https://bit.ly/3ZujYFW ........................................ 17
Press Release, U.S. Dep’t of Educ.,
Department of Education Announces
Actions to Fix Longstanding Failures
in the Student Loan Programs
(Apr. 19, 2022), https://bit.ly/3DDF9wr ............. 22
Press Release, U.S. Dep’t of Educ.,
Department of Education Announces
Expansion of COVID-19 Emergency
Flexibilities to Additional Federal
Student Loans in Default (Mar. 30, 2021),
https://bit.ly/3UjVb48.......................................... 17
Press Release, U.S. Dep’t of Educ.,
Education Department Approves $1.5
Billion in Debt Relief for 79,000 Borrowers
Who Attended Westwood College
(Aug. 30, 2022), https://bit.ly/3DB7svE.............. 23
Press Release, U.S. Dep’t of Educ.,
Education Department Approves
$3.9 Billion Group Discharge for 208,000
Borrowers Who Attended ITT
Technical Institute (Aug. 16, 2022),
https://bit.ly/3NasrbQ ......................................... 23
viii
TABLE OF AUTHORITIES—continued
Page(s)
Press Release, U.S. Dep’t of Educ.,
Education Department Approves $5.8
Billion Group Discharge to Cancel All
Remaining Loans for 560,000 Borrowers
Who Attended Corinthian
(June 1, 2022), https://bit.ly/3DhLvjA ................ 23
S. 2235, 116th Cong. (2019) ..................................... 25
U.S. Dep’t of Educ., Office of Fed. Student
Aid, Borrower Defense Findings,
https://bit.ly/3DhundS (last visited
Jan. 11, 2023) ...................................................... 23
BRIEF OF LEGAL SCHOLARS AS AMICI
CURIAE IN SUPPORT OF PETITIONERS
INTERESTS OF THE AMICI CURIAE 1
Amici curiae are professors at law schools
throughout the United States. Amici’s expertise encompasses student-financial-assistance programs under Title IV of the Higher Education Act of 1965, consumer finance, administrative and constitutional law,
modes of statutory interpretation, and the development of the major questions doctrine. Amici have a
strong interest in assisting this Court in resolving
questions of law that go to the core of their professional expertise and scholarship, namely, the scope of
the Department of Education’s authority to provide
relief to borrowers and the development of this Court’s
statutory interpretation methodology, particularly in
the context of its precedent concerning the major
questions doctrine. Amici are:
•
William Araiza, Stanley A. August Professor
of Law, Brooklyn Law School
•
John R. Brooks, Professor of Law, Fordham
University School of Law
•
Matthew Bruckner, Associate Professor of
Law, Howard University School of Law
•
James J. Brudney, Joseph Crowley Chair in
Labor and Employment Law, Fordham University School of Law
Pursuant to Rule 37.6, no party’s counsel authored this brief
in whole or in part, no party or party’s counsel contributed money
intended to fund this brief, and no person other than amici, their
members, and their counsel contributed money to fund this brief.
1
2
•
Erwin Chemerinsky, Dean and Jesse H.
Choper Distinguished Professor of Law, University of California, Berkeley School of Law
•
Kurt Eggert, Professor and Director, Alona
Cortese Elder Law Center, Chapman University Fowler School of Law
•
Kate Sablosky Elengold, Assistant Professor
of Law and Director, Consumer Financial
Transactions Clinic, University of North Carolina School of Law
•
Kathleen C. Engel, Research Professor of
Law, Suffolk University Law School
•
Pamela Foohey, Professor of Law, Benjamin
N. Cardozo School of Law
•
Jonathan Glater, Professor, University of California, Berkeley School of Law
•
Luke Herrine, Assistant Professor of Law,
University of Alabama School of Law
•
Dalié Jiménez, Professor of Law and Director,
Student Loan Law Initiative, University of
California, Irvine School of Law
•
Creola Johnson, President’s Club Professor of
Law, Ohio State University Moritz College of
Law
•
Angela K. Littwin, Ronald D. Krist Professor
of Law, University of Texas at Austin School
of Law
•
Jeffrey Lubbers, Professor of Practice in Administrative Law, American University
Washington College of Law
3
•
Cathy Lesser Mansfield, Senior Instructor in
Law, Case Western Reserve University School
of Law
•
Chrystin Ondersma, Professor of Law and
Judge Morris Stern Scholar, Rutgers Law
School
•
Christopher L. Peterson, John J. Flynn Endowed Professor of Law, University of Utah
S.J. Quinney College of Law
•
Christopher J. Ryan, Jr., Associate Professor
of Law, University of Louisville Brandeis
School of Law
•
Peter M. Shane, Jacob E. Davis and Jacob. E.
Davis II Chair in Law, Ohio State University
Moritz College of Law Emeritus, & Distinguished Scholar in Residence and Adjunct
Professor of Law, New York University School
of Law
•
Peter Strauss, Betts Professor Emeritus of
Law, Columbia Law School
•
David C. Vladeck, A.B. Chettle, Jr., Professor
of Law, Georgetown University Law Center
•
Alan White, Professor, City University of New
York School of Law
•
Lauren E. Willis, Professor of Law, LMU Loyola Law School
INTRODUCTION AND
SUMMARY OF ARGUMENT
This Court should affirm the judgment of the District Court for the Eastern District of Missouri in Nebraska and reverse the judgment of the District Court
for the Northern District of Texas in Brown. The
4
government’s brief identifies many reasons for that
conclusion. This brief focuses on one: the government
is likely to prevail on the merits. 2 That is because Congress, through the plain language of the relevant statute, delegated precisely the authority exercised here,
and the major questions doctrine does not alter that
conclusion.
The relevant statutory text is clear as sunlight.
The HEROES Act of 2003 authorizes the Secretary of
Education to “waive or modify any statutory or regulatory provision applicable to the student financial assistance programs under [T]itle IV of the [Higher Education] Act [of 1965] as the Secretary deems necessary in connection with a . . . national emergency.” 20
U.S.C. § 1098bb(a)(1). That is exactly what the Secretary did here: waive or modify certain provisions of Title IV so that borrowers are not put in a worse financial position because of a national emergency.
The Secretary’s action accompanies the Department of Education’s plan to resume normal collections
on federally held student loans, which have been suspended since the onset of the COVID-19 global health
crisis. The Department found that millions of borrowers continue to face personal financial difficulties emanating from the COVID-19 pandemic and its ongoing
effects, causing an elevated risk of default and other
harmful financial repercussions for lower-income borrowers. The Secretary therefore announced that the
Department would pair the resumption of repayments
with a one-time, partial relief of repayment
2 Amici also note separately that President Biden does not ap-
pear to be a proper party to this action. The debt relief challenged
in this case is solely an exercise of the Department of Education’s
authority under the HEROES Act of 2003, not any action taken
by the President.
5
obligations on federally held student debt for lowerincome borrowers. This action was an appropriate and
lawful exercise of the Department’s authority under
the HEROES Act.
In the face of clear statutory text, Respondents
and the district court in Brown have relied on invented limits on the explicit waiver and modification
authority that have no support in the statutory text
and are inconsistent with past agency practice across
Administrations. And the Eighth Circuit did not identify any statutory basis whatsoever for reversing the
district court in Nebraska, stating only that the case
raises unspecified “substantial” merits questions warranting an injunction. The lower courts’ decisions
should not stand.
Respondents’ and the Brown district court’s invocation of the major questions doctrine is likewise unavailing. The Secretary has not “‘claim[ed] to discover
in a long-extant statute an unheralded power’ representing a ‘transformative expansion in [its] regulatory
authority,’” West Virginia v. EPA, 142 S. Ct. 2587,
2610 (2022) (quoting Utility Air Regul. Grp. v. EPA,
573 U.S. 302, 324 (2014)), exerted an “unprecedented
power over American industry,” id. at 2612 (quoting
Indus. Union Dep’t, AFL-CIO v. Am. Petroleum Inst.,
448 U.S. 607, 645 (1980)), or regulated a sector of the
economy that Congress did not intend it to regulate,
id. at 2612-13.
The Department took the exact type of action Congress empowered it to take (waiver or modification of
provisions of Title IV of the Higher Education Act) in
the precise context Congress authorized it to act (national emergencies) for the specific purpose Congress
intended (relief of borrowers affected by an emergency). It is not a new assertion of regulatory
6
authority over the public at all, but rather the adjustment of a federal benefit under an existing program.
The Secretary’s action is plainly not the exceptional
case in which an agency’s extraordinary assertion of
authority might call for application of a special mode
of statutory analysis. And regardless, the statute provides “clear congressional authorization” for the
power that the Department has exercised, id. at 2609
(quoting Utility Air, 573 U.S. at 324).
ARGUMENT
I.
The text of the HEROES Act of 2003 authorizes the Secretary’s action.
As this Court has repeatedly explained, statutory
interpretation begins with the text of a statute, with
“plain and unambiguous statutory language” enforced
“according to its terms,” Hardt v. Reliance Standard
Life Ins. Co., 560 U.S. 242, 251 (2010). The HEROES
Act of 2003 “plainly authorizes” the Department to issue the limited debt relief here. NFIB v. OSHA, 142
S. Ct. 661, 665 (2022) (per curiam).
A. The Act authorizes the Secretary of Education to waive or modify the provisions
of Title IV waived here.
“[T]he Secretary of Education . . . may waive or
modify any statutory or regulatory provision applicable to the student financial assistance programs under Title IV of the [Higher Education] Act [of 1965] as
the Secretary deems necessary in connection with a
. . . national emergency.” 20 U.S.C. § 1098bb(a)(1).
This is a grant of substantial power. Compare id. (authorizing Secretary to “waive or modify” provisions of
the HEA (emphasis added)), with MCI Telecomms.
Corp. v. Am. Tel. & Tel. Co., 512 U.S. 218, 227-29
(1994) (rejecting FCC’s assertion of authority to
7
“modify” a requirement that common carriers file tariffs by eliminating it altogether, because the authority
to “modify” connotes only “moderate change”).
The Secretary’s action faithfully implements this
authority. As the administrative record shows, all the
provisions waived or modified in this case fall within
Title IV, and thus within the clear grant of authority
in the HEROES Act. See 87 Fed. Reg. 61,512 (Oct. 12,
2022) (waiving or modifying various provisions governing loan terms, payment conditions, cancellation,
and discharge of Title IV loans at 20 U.S.C. §§ 1087a,
1087e, 1087dd; 34 C.F.R. Part 674, Subpart D; 34
C.F.R. §§ 682.402, 685.212). There is no serious question that, if the other prerequisites for exercising the
Secretary’s authority are met, the Secretary’s waivers
and modifications of these provisions were permissible under the text of the statute.
B. The COVID-19 pandemic created a “national emergency” that authorizes the
Secretary to waive or modify the provisions at issue here.
The HEROES Act authorizes waivers of Title IV
provisions in connection with a “national emergency.”
20 U.S.C. § 1098bb(a)(1). The COVID-19 pandemic
constitutes such an emergency. In March 2020, President Trump declared that the COVID-19 outbreak
was a national emergency that threatened to strain
the nation’s healthcare systems. 85 Fed. Reg. 15,337
(Mar. 13, 2020). In February 2022, President Biden
continued the national emergency, 87 Fed. Reg.
10,289 (Feb. 18, 2022); by then, the United States had
documented more than 78 million cases of COVID-19
8
and more than 934,000 deaths from the disease, and
those numbers are still rising. 3
Despite State Respondents’ suggestion that there
is no “real connection to a national emergency” that
could justify relief for borrowers, and that post-pandemic relief at this time would be an “absurd result[]”
of the Department’s asserted authority, Nebraska
Resp. 22-23, recovery from the pandemic disaster is
ongoing. Indeed, amici note that the State Respondents themselves continue to receive millions of dollars
in federal disaster-recovery funding for COVID relief
every month and are projected to receive hundreds of
millions of dollars in additional COVID-relief funding
in 2023. 4 Recovery from the worst pandemic in a century takes time and can still warrant continued postdisaster relief, both to State Respondents and to affected student borrowers. The specter raised by the
Brown district court that pandemic recovery could be
ongoing ten years from now does not change the fact
that, today, a state of emergency continues to exist,
with disaster-relief efforts actively ongoing, and it is
not “unclear if COVID-19 is still a ‘national emergency’ under the Act.” J.A. 293.
State Respondents have further argued that the
HEROES Act exists to “address[] temporary challenges” in a way that “is ‘incompatible’ with the permanent cancellation of principal.” Nebraska Resp. 25
(emphasis in original). The statute, however, does not
draw distinctions between what Respondents
3 Edouard Mathieu et al., Coronavirus (COVID-19) Cases, Our
World in Data, https://bit.ly/3AuMyMQ (last updated Jan. 11,
2023).
4 FEMA, Disaster Relief Fund: Monthly Report as of November
30, 2022, https://bit.ly/3GRtU5g.
9
characterize as temporary versus permanent relief.
The Act authorizes the Secretary to “waive or modify”
student-loan provisions. 20 U.S.C. § 1098bb(a)(1).
Congress did not use more limited language, such as
the power to “suspend,” as it has in some other emergency statutes. See, e.g., 43 U.S.C. § 1341(c) (Secretary of the Interior may “suspend operations under
any lease” for development of outer Continental Shelf
“during a . . . national emergency”); 40 U.S.C. § 3147
(President may “suspend” statutory wage requirements for federal contractors “during a national emergency”); 46 U.S.C. § 8301(d)(1) (Secretary of Homeland Security may “suspend any part” of regulations
concerning crew makeup on Coast Guard vessels “during a national emergency”).
Moreover, the Secretary has previously used HEROES Act authority to grant permanent financial relief to borrowers. See infra Section II.A.1; Pet Br. 7,
41, 51-52. State Respondents concede that the Department has taken actions that “might have the indirect
effect of reducing the principal that a borrower will
ultimately pay,” and respond that these actions were
not “aimed at eliminating principal.” Nebraska Resp.
25-26. But the Secretary’s authority does not turn on
Respondents’ perception of the Department’s intent.
In any event, Respondents have not cited any authority for the proposition that emergencies cannot be
met with relief that has permanent effects, nor could
they. Indeed, this Court recently held that the
COVID-19 emergency justified the imposition of vaccination requirements on workers in healthcare facilities, Biden v. Missouri, 142 S. Ct. 647 (2022), a permanent measure that “cannot be undone at the end of
the workday,” NFIB, 142 S. Ct. at 665 (citation omitted).
10
Although the explicit statutory text provides a full
response here, it is also the case that Respondents’ apparent intuition that emergencies justify only temporary relief would be a curious and unheard-of constraint on disaster recovery efforts; after all, the federal government regularly provides one-time financial
assistance to victims seeking to recover after a disaster, such as funds for housing and home repair, energy
subsidies, or funeral expenses. 5
C. Lower-income student borrowers are
“affected individuals.”
The HEROES Act treats as “affected individuals”
anyone who “resides or is employed in an area that is
declared a disaster area by any Federal, State, or local
official in connection with a national emergency.” 20
U.S.C. § 1098ee(2). All 50 States, all U.S. territories,
and the District of Columbia have been individually
designated as disaster areas in connection with the
COVID-19 pandemic, at the request of each State’s
governor. See, e.g., President Donald J. Trump Approves Missouri Disaster Declaration, White House
Statements
&
Releases
(Mar.
26,
2020),
https://bit.ly/3EHvbL9; see also COVID-19 Disaster
Declarations, FEMA, https://bit.ly/3gh1uXZ (last updated Aug. 20, 2021). Therefore, under the plain language of the statute, any student borrower who lives
or works in one of the States, including the Respondent States, “resides or is employed in . . . a disaster
area” and qualifies as an “affected individual” under
the Act. 20 U.S.C. § 1098ee(2)(C). Nothing more is
necessary under the statute for nearly all beneficiaries.
See Assistance for Housing and Other Needs, FEMA,
https://bit.ly/3tTPoqE (last updated Oct. 13, 2022).
5
11
The HEROES Act also includes an alternate definition of “affected individual”: those who have “suffered direct economic hardship as a direct result of a
war or other military operation or national emergency, as determined by the Secretary,” id.
§ 1098ee(2)(D). The Department’s grant of relief to
borrowers living overseas (and therefore not covered
by section 2(C)) rests on this authority. See Pet. Br.
35. Notably, subsections (2)(C) and (2)(D) are alternative definitions of “affected individual.” Cf., e.g., Horne
v. Flores, 557 U.S. 433, 454 (2009) (“Use of the disjunctive ‘or’ makes it clear that each of the provision’s
three grounds for relief is independently sufficient.”).
Only subsection 2(D) requires a finding that a national emergency impose direct economic hardship on
affected individuals; the Secretary’s waiver authority
for those living in disaster areas (i.e., those not living
abroad) does not contain such a limitation. Congress
could have limited the Secretary’s waiver authority in
disaster areas only to those directly affected, but it
chose not to. This choice “requires respect, not disregard.” Wis. Cent. Ltd. v. United States, 138 S. Ct. 2067,
2072 (2018).
As to both subsection 2(C) and (2)(D), the HEROES Act explicitly relieves the Secretary of any requirement that he “exercise the waiver or modification authority . . . on a case-by-case basis.” 20 U.S.C.
§ 1098bb(b)(3). Rather than requiring individual-byindividual judgments about hardship for millions of
borrowers, Congress permitted the Secretary to make
reasonable determinations about classes of borrowers
when tailoring relief, empowering the Secretary to act
with the scale and speed necessary to address national emergencies. See also id. § 1098bb(a)(2)(B) (authorizing Secretary to ensure that “administrative
12
requirements placed on affected individuals . . . are
minimized, . . . to ease the burden” on student borrowers).
D. The Secretary reasonably concluded
that debt relief is “necessary to ensure
that” borrowers are not “placed in a
worse position financially” due to the national emergency.
As the Secretary explained, the effects of a national emergency on individuals’ financial positions
relative to their loans can include increased likelihood
of default, inability to afford repayment without depleting funds for necessities and savings, and a reduction in borrowers’ future abilities to obtain credit or
employment. See J.A. 233-39. The HEROES Act authorizes the Secretary to consider these harmful effects and waive repayment provisions as he “deems
necessary” to ensure that a national emergency does
not place borrowers “in a worse position financially”
than they would have been in otherwise. 20 U.S.C.
§ 1098bb(a)(1), (a)(2)(A).
Respondents have argued that, because relief in
this instance takes the form of a reduction in principal
owed by qualifying borrowers, the Secretary’s action
puts these borrowers in a better position than they
were in prior to the pandemic, rather than ensuring
that they are not placed in a worse position because of
the pandemic. See Nebraska Resp. 24-25. The administrative record, however, supports the Department’s
conclusion that the pandemic emergency caused substantial deterioration in lower-income borrowers’ financial positions, with these borrowers substantially
more likely to have trouble making payments in 2022
than in 2019. J.A. 233-39. As such, it does not follow
that a one-time, limited reduction in principal owed
13
must put borrowers in a better position than they
were in before the pandemic. The Department further
found that borrowers whose loan obligations would be
eliminated by the Secretary’s action were disproportionately likely to be low income and at high risk of
default; and for remaining borrowers, the economic effects of loan forgiveness on their monthly payments
would be roughly equivalent to the payment pause
that has persisted throughout the pandemic. J.A. 24244.
The Secretary reasonably concluded that his action was necessary and appropriate to offset the
harms of the pandemic emergency. Respondents may
disagree with this conclusion, but their disagreement
does not render the Secretary’s contrary decision arbitrary, see, e.g., FCC v. Prometheus Radio Project,
141 S. Ct. 1150, 1158 (2021) (actions are not arbitrary
and capricious as long as “agency has acted within a
zone of reasonableness,” at which point judicial review
does not permit a court to “substitute its own policy
judgment for that of the agency”), much less contrary
to the statute, as Respondents have argued.
Respondents’ second guessing of the Secretary’s
judgment here is particularly meritless given Congress’s decision to vest the Secretary with broad authority to “deem [relief] necessary” to avoid borrowers
being in a worse position relative to their loans than
they would have been absent the pandemic. 20 U.S.C.
§ 1098bb(a)(1), (a)(2)(A). The statute thus anticipated
a discretionary determination. See, e.g., Trump v. Hawaii, 138 S. Ct. 2392, 2408 (2018) (statute authorizing
President to “suspend the entry of all aliens or any
class of aliens . . . for such period as he shall deem necessary” or subject to “any restrictions he may deem to
be appropriate” constituted a “comprehensive
14
delegation” that authorized the suspension of entry of
nationals from several countries); Webster v. Doe, 486
U.S. 592, 600 (1988) (statute allowing termination of
CIA employees when the Director “‘shall deem [] necessary’ . . . exudes deference to the Director”); see also,
e.g., Texas v. EPA, 983 F.3d 826, 836-37 (5th Cir.
2020) (statutory text giving EPA Administrator “discretion to make changes whenever it ‘deems necessary’” gave “the agency discretion to determine when
changes are necessary, not merely authority to make
changes when it has no other option”).
II. The major questions doctrine does not bar
the Secretary’s action.
A. The Secretary’s action does not trigger
the doctrine.
In West Virginia, this Court explained that in
rare, “‘extraordinary cases,’” “the ‘history and the
breadth of the authority that [an 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.” 142 S. Ct. at 2608 (quoting FDA v. Brown &
Williamson Tobacco Corp., 529 U.S. 120, 159-60
(2000)). Those exceptional cases—in which an agency
“claim[ed] to discover in a long-extant statute an unheralded power” representing a “transformative expansion in [its] regulatory authority”—are subject to
the major questions doctrine. Id. at 2610 (quoting
Utility Air, 573 U.S. at 324).
The challenged waivers and modifications bear
none of the hallmarks of unheralded, transformative
agency action. The Secretary’s action is entirely consistent with the Department’s prior assertions of its
HEROES Act authority, its traditional mission and
15
expertise, and the structure of the Act. Indeed, as the
government points out, it does not even involve an assertion of regulatory authority over the public at all—
merely a change in the provision of government benefits under an existing statutory scheme. Pet. Br. 4849. Respondents’ arguments to the contrary ignore the
history and text of the Act and the Department’s oversight of the federal student-loan program as a whole. 6
Nor does the Secretary’s action trigger the major
questions doctrine merely because it appears to involve a large amount of money and has been the subject of recent congressional proposals, as Respondents
have pressed and the Brown district court held, see
6 The cases that the Court has treated as “extraordinary” show
what types of agency actions are unheralded and transformative
in the relevant sense. For example, Brown & Williamson involved the FDA’s attempt to regulate and ban tobacco products,
which it had disclaimed authority over for more than 70 years
and which Congress had separately regulated in exacting detail.
529 U.S. at 127, 137. Utility Air concerned the EPA’s regulation
of “millions of small sources, such as hotel and office buildings,
that had never before been subject to such [EPA] requirements,”
142 S. Ct. at 2608. Alabama Association of Realtors v. HHS involved the CDC’s assertion of authority to regulate landlords’
eviction practices nationwide. 141 S. Ct. 2485 (2021) (per curiam). Gonzales v. Oregon dealt with the Attorney General’s attempt to rescind state-issued medical licenses. 546 U.S. 243
(2006). NFIB v. OSHA considered the occupational-health
agency’s ability to require vaccinations and weekly testing outside of the workplace. 142 S. Ct. at 665. And in West Virginia
itself, the EPA attempted to convert an authority that had always been understood to “ensur[e] the efficient pollution performance of [an] individual regulated source” into one that allowed
it to “forc[e]” one segment of the power industry to “cease making
power altogether.” 142 S. Ct. at 2612. In each case, an agency
regulated far beyond the subjects Congress expected it to regulate.
16
Nebraska Resp. 27-28; Brown Resp. 18-19; J.A. 28889. But even if the Court were to adopt such a mode of
analysis, the Secretary’s action still would not trigger
the doctrine.
1. The Secretary’s action is not unheralded.
Respondents portray the Secretary’s action here
as unprecedented in two ways: the scope of affected
individuals is broad, and the waiver of a payment obligation provides permanent relief. See Nebraska
Resp. 28-29; Brown Resp. 18-19. But neither is in any
way new. The history and breadth of the Department’s prior uses of its HEROES Act authority show
that the challenged waivers and modifications align
with its longstanding, uncontroversial understanding
of that authority. Far from a novel, unheralded assertion of authority, the Secretary’s action here is consistent with the scope and effect of prior waivers and
modifications. Compare, e.g., NFIB, 142 S. Ct. at 666
(striking down OSHA vaccine mandate where “OSHA,
in its half century of existence, ha[d] never before
adopted a broad public health regulation” of that
kind), with Biden v. Missouri, 142 S. Ct. at 653 (upholding HHS vaccine mandate where “the Secretary
routinely imposes conditions of participation” on
healthcare workers and “has always justified” such requirements by reference to the statutory provisions in
question).
As an initial matter, this is not the first time that
the Department has drawn on its HEROES Act authority to relieve a broad, nationwide class of borrowers from repayment and other obligations in response
to the COVID-19 pandemic, nor the first Administration to do so. Beginning in March 2020, Secretary
DeVos temporarily eliminated the accrual of interest
and suspended payment on all federally held student
17
loans, and she paused collection actions and wage garnishment to recoup delinquent loans. See 85 Fed. Reg.
79,856 (Dec. 11, 2020). That relief was made available
to all federal borrowers across the United States, all
of whom the Secretary determined—as a categorical
matter—were affected by the COVID-19 pandemic.
See id. at 79,857. The incoming Biden Administration
extended these waivers. See Pausing Federal Student
Loan Payments, White House Statements & Releases
(Jan. 20, 2021), https://bit.ly/3UmyWKZ; see also
Press Release, U.S. Dep’t of Educ., Department of Education Announces Expansion of COVID-19 Emergency Flexibilities to Additional Federal Student
Loans
in
Default
(Mar.
30,
2021),
https://bit.ly/3UjVb48. The waivers remain in effect
today and are currently set to expire later this year.
See Press Release, U.S. Dep’t of Educ., Biden-Harris
Administration Continues Fight for Student Debt Relief for Millions of Borrowers (Nov. 22, 2022),
https://bit.ly/3ZujYFW.
The class of beneficiaries covered by the action
challenged here is no larger than that covered by previous, uncontroversial actions—indeed, less expansive, given that the Secretary’s action imposes an income threshold that was absent from the ongoing nationwide payment pause. Further, there is nothing
novel about providing relief to all borrowers who reside in a disaster area; indeed, that has been the case
since the passage of the HEROES Act. See, e.g., 68
Fed. Reg. 69,312 (Dec. 12, 2003) (providing waivers
and modifications to all federal borrowers residing or
employed in a disaster area).
Beyond that, the substance of the challenged action is not markedly different from previous exercises
of authority under the Act. The Department has in the
18
past permanently waived payments and otherwise
made it easier for borrowers to discharge debts. For
example, soon after the passage of the Act, the Department waived the requirement that borrowers return
unearned grant funds, which they are ordinarily obligated to do under the Higher Education Act, when
they withdraw from an institution because they reside
in a disaster area or have suffered economic hardship
because of a national emergency. See id. at 69,314.
Likewise, under the Department’s ongoing pause on
loan payments and elimination of interest accrual,
borrowers who have continued to pay their principal
during the moratorium will have lower monthly interest payments when the pause is lifted. These and
other waivers and modifications amount to permanent reductions in borrowers’ repayment obligations
of the type that Respondents argue falls outside the
bounds of permissible emergency relief, see Nebraska
Resp. 29. 7
Thus, unlike the CDC’s novel use of a decades-old
statute to regulate evictions, Ala. Ass’n of Realtors,
141 S. Ct. at 2489, or EPA’s sector-threatening
7 The Department has also relied on the HEROES Act to waive
the requirement that borrowers in employment-based loan-forgiveness programs perform their qualifying work without interruption, for those whose employment was interrupted as the result of their residing or being employed in a disaster area. See 68
Fed. Reg. at 69,316. And in the first set of waivers that the Department issued in connection with the COVID-19 pandemic, the
Department made it easier for borrowers with certain types of
federal loans to assert defenses to repayment, by applying a more
forgiving standard to their asserted defenses. See 85 Fed. Reg. at
79,862. These waivers that make it easier for borrowers to have
their loans forgiven inevitably reduce the amount of principal
that many borrowers repay, therefore conferring what Respondents would characterize as a “permanent” benefit to borrowers.
19
restrictions on coal-power production, West Virginia,
142 S. Ct. at 2610-11, the Department’s determination
is comparable in key respects to its prior, uncontroversial exercise of its authority under the HEROES Act.
2. The Secretary’s action does not transform
the Department’s regulatory authority.
Similarly, the challenged action does not work a
“‘radical or fundamental change’ to a statutory
scheme,” West Virginia, 142 S. Ct. at 2609-10 (quoting
MCI, 512 U.S. at 229), nor one that would effect a
“transformative expansion in [its] regulatory authority,” id. (quoting Utility Air, 573 U.S. at 324). Indeed,
the Secretary’s action is not an assertion of regulatory
authority over the public at all, but rather an exercise
of authority to provide relief under a benefits program. See Pet. Br. 48-49.
Beyond that, the Department is not asserting jurisdiction over matters not previously within its purview or trying to regulate topics Congress never assigned to it; it is acting at the core of its statutory authority. The Secretary’s HEROES Act waiver and
modification authority falls squarely within the responsibilities Congress has vested in the Secretary.
For example, in tasking the Department of Education
with carrying out the purposes of the federal student
loan programs, Congress already authorized the Secretary to modify “any . . . provision of any note evidencing a loan” made under Title IV and to “compromise, waive, or release any right, title, claim, lien, or
demand,” among other powers. 20 U.S.C. § 1087hh(1)(2). Given that Congress expressly authorized the Secretary to modify, compromise, or release federal student-loan debt, the Department’s use of its HEROES
Act authority to do exactly that hardly represents a
“transformative
expansion”
or
“radical
or
20
fundamental change” in its power. West Virginia, 142
S. Ct. at 2609-10 (quoting MCI, 512 U.S. at 229, and
Utility Air, 573 U.S. at 324).
For that reason, this is not a case in which the
agency “‘has no comparative expertise’ in making certain policy judgments,” such that “‘Congress presumably would not’ task it with doing so.” Id. at 2613
(quoting Kisor v. Wilkie, 139 S. Ct. 2400, 2417 (2019)).
There is no “mismatch between [the] agency’s challenged action and its congressionally assigned mission
and expertise,” id. at 2623 (Gorsuch, J., concurring),
unlike the CDC intervening in landlord-tenant relations, Ala. Ass’n of Realtors, 141 S. Ct. at 2489, OSHA
requiring actions outside the workplace, NFIB, 142 S.
Ct. at 665, or the Attorney General making medical
judgments, Gonzales, 546 U.S. at 265-66. The Department’s regulation of federal student loans is squarely
within its expertise. See supra Section II.A.1.
Nor is the Department attempting to exploit an
“ancillary provision” of a statute, one “designed to
function as a gap filler.” West Virginia, 142 S. Ct. at
2610; see also Whitman v. Am. Trucking Ass’ns, 531
U.S. 457, 468 (2001) (Congress “does not . . . hide elephants in mouseholes.”). The HEROES Act’s waiver
and modification authority is not some “previously little-used backwater” of a broader statute, West Virginia, 142 S. Ct. at 2613; it is the heart of a statute
designed to give the Secretary “specific waiver authority to respond to . . . [a] national emergency.” Act of
Aug. 18, 2003, Pub. L. No. 108-76, 117 Stat. 904 (Aug.
18, 2003). In fact, § 1098bb is the only provision in the
tightly drawn HEROES Act that gives effect to the
law’s central purpose; the Act does not contain back
channels through which undelegated stores of agency
21
authority might be sneaking. See generally 20 U.S.C.
§§ 1098aa-1098ee.
Ignoring this evidence, State Respondents suggest
that the Secretary has claimed transformative authority because the one-time, limited relief measure
on the heels of a once-in-a-century global pandemic
raises the specter of broader debt cancellation. See Nebraska Resp. 29-30. Far from it. The hypothetical unlimited debt cancellation that Respondents invoke
simply would not hold up in the face of the limits on
agency waiver and modification authority that the
HEROES Act imposes—limits that the Department’s
action respects and reinforces. Waiver of debt is permissible under the statute only when done “in connection with a war or other military operation or national
emergency” and only in satisfaction of one of five enumerated objectives. 20 U.S.C. § 1098bb(a)(1)-(2). The
Secretary’s action does not open the floodgates to unlimited debt cancellation.
3. The economic and political significance of
the Secretary’s action do not trigger the
doctrine.
As explained above, the hallmark of a major-questions case is an agency’s assertion of unheralded,
transformative power to regulate the public. See supra
Section II.A.1-2. Respondents’ and the Brown district
court’s conception of “economic and political significance” as an isolated test or sufficient indicia of “majorness” does not accord with this Court’s major-questions precedents, as described above. See supra n.6
(cataloguing major-questions cases); see generally Natasha Brunstein & Donald L. R. Goodson, Unheralded
and Transformative: The Test for Major Questions After West Virginia, 47 Wm. & Mary Env’t L. & Pol’y
Rev., at 20-21 (forthcoming 2023) (explaining that
22
several of the Court’s cases establishing the doctrine
do not analyze economic and political significance in
determining whether questions presented by agency
action are “major”). But even if the Court were to accept Respondents’ conception of economic and political
significance, which it should not, the major questions
doctrine still would not govern the Department’s action.
a. This Court should resist Respondents’ desire to
evaluate economic significance in a vacuum. The Department’s action may concern a large amount of
money—approximately $13.3 billion per year, by one
early analysis8—but this figure must be viewed in the
context of the federal student-loan program as a
whole, comprising 43 million borrowers with loans totaling approximately $1.6 trillion. 9
Given the overall size of the student-loan program, Department actions managing this portfolio
regularly involve large sums. For example, the Department cancelled an estimated $6.8 billion in federal student debt under the Public Service Loan Forgiveness program and an additional $7.8 billion for
borrowers with disabilities from January 2021 to
April 2022—a total of $14.6 billion in debt cancellation. 10 Likewise, the Department regularly discharges
billions of dollars of federal student loans held by hundreds of thousands of borrowers who have attended
8 See Letter from Phillip L. Swagel, Director, Cong. Budget Of-
fice,
to
Members
https://bit.ly/3U71fwE.
of
Congress
(Sept.
26,
2022),
9 Id. at 3.
10 See Press Release, U.S. Dep’t of Educ., Department of Educa-
tion Announces Actions to Fix Longstanding Failures in the Student Loan Programs (Apr. 19, 2022), https://bit.ly/3DDF9wr.
23
educational institutions that the Department later determined misrepresented their credentials and accreditation or otherwise misled students about the
value of the education provided. 11 For example, over
the course of three months this year, the Department
discharged more than $11 billion in federal loans held
by borrowers who attended just three institutions. 12
When managing a $1.6 trillion loan portfolio, virtually every action that the Department takes to relieve borrowers might trigger the major questions doctrine if courts looked only to the bottom-line amount. 13
That would work a massive expansion in the major
questions
doctrine—a
rule
reserved
for
11 See U.S. Dep’t of Educ., Office of Fed. Student Aid, Borrower
Defense Findings, https://bit.ly/3DhundS (last visited Jan. 11,
2023) (cataloguing Department’s discharges of debt against institutions).
12 See Press Release, U.S. Dep’t of Educ., Education Department
Approves $1.5 Billion in Debt Relief for 79,000 Borrowers Who
Attended
Westwood
College
(Aug.
30,
2022),
https://bit.ly/3DB7svE; Press Release, U.S. Dep’t of Educ., Education Department Approves $3.9 Billion Group Discharge for
208,000 Borrowers Who Attended ITT Technical Institute (Aug.
16, 2022), https://bit.ly/3NasrbQ; Press Release, U.S. Dep’t of
Educ., Education Department Approves $5.8 Billion Group Discharge to Cancel All Remaining Loans for 560,000 Borrowers
Who Attended Corinthian (June 1, 2022), https://bit.ly/3DhLvjA.
13 And it’s not just the Department of Education’s regular activity
that would be disrupted by so freewheeling a standard. Many
agencies have promulgated multi-billion-dollar regulations without raising major-questions hackles. See, e.g., 85 Fed. Reg.
61,505 (Sept. 29, 2020) (Department of Defense rule regarding
unclassified information with estimated costs of $6.5 billion annually); 85 Fed. Reg. 72,158 (Nov. 12, 2020) (multi-agency regulation regarding health-insurance disclosures with estimated annual costs up to $10 billion).
24
“extraordinary” circumstances, West Virginia, 142 S.
Ct. at 2608.
Moreover, the “cost” in question is not the type of
cost considered in previous cases, which involved “‘billions of dollars in spending’ by private persons or entities,” West Virginia, 142 S. Ct. at 2621 (Gorsuch, J.,
concurring) (quoting King v. Burwell, 576 U.S. 473,
485 (2015)), resulting from an exercise of “unprecedented power over American industry,” id. at 2612
(quoting Indus. Union Dep’t, 448 U.S. at 645); see also,
e.g., Ala. Ass’n of Realtors, 141 S. Ct. at 2489 (considering the “financial burden on landlords” resulting
from CDC’s eviction moratorium). Respondents here
point instead to the cost imputed to the federal government by a reduction in projected income generated
by a federal program. The absence of any costs to private parties is, on its own, sufficient to end the majorquestions inquiry. 14
Indeed, in describing the injury that supposedly
gives rise to this case, Respondents don’t allege that
the action will trigger billions of dollars in costs to private parties, nor could they. They merely contend that
the debt-relief measure will cost Missouri’s state-affiliated loan servicer money in lost account fees and that
states may lose some unspecified amount in tax
14 Relatedly, because the Department’s action pertains only to
federally held student loans, it raises none of the federalism concerns that sometimes animate the Court’s major-questions analysis. See, e.g., Ala. Ass’n of Realtors, 141 S. Ct. at 2489 (CDC’s
national eviction moratorium “intrudes into an area that is the
particular domain of state law: the landlord-tenant relationship”); Gonzales, 546 U.S. at 274 (“[T]he background principles
of our federal system . . . belie the notion that Congress would
use such an obscure grant of authority to regulate areas traditionally supervised by the States’ police power.”).
25
revenue. See Nebraska Resp. 13-14, 18-19. These tenuous allegations of marginal economic harm are a far
cry from the effects one would expect were the Department exercising an “extravagant statutory power over
the national economy,” West Virginia, 142 S. Ct. at
2609 (quoting Utility Air, 573 U.S. at 324).
b. The mere existence of political disagreement
with the Secretary’s decision does not satisfy any “political significance” requirement. The major questions
doctrine is not so malleable that a determined litigant
can stoke a controversy to change the applicable
standard of review.
Aside from their own disagreement, all that Respondents point to as evidence of political significance
is that Congress has failed to enact debt-relief
measures over the last three years. See Nebraska
Resp. 28; Brown Resp. 20-21. But two of the three proposals that they have cited are much broader in scope
than the Department’s action here. See, e.g.,
H.R. 2034, 117th Cong. (2021) (bill introduced in
House that would cancel all student debt for all borrowers with adjusted gross incomes up to $100,000);
S. 2235, 116th Cong. (2019) (bill introduced in Senate
proposing cancellation of up to $50,000 for all borrowers regardless of income). And the third was one provision of a $3 trillion stimulus bill. See H.R. 6800,
116th Cong. § 150117(h) (2020).
Far more than this “simple inaction by Congress”
is required to provide meaningful evidence of intent.
See Brown & Williamson, 529 U.S. at 155 (drawing on
35-year history of specific congressional action at odds
with agency’s assertion of authority); West Virginia,
142 S. Ct. at 2610 (Congress’s “conspicuously and repeatedly declin[ing] to enact” particular regulatory
scheme was evidence of congressional intent); see also
26
Johnson v. Transp. Agency, 480 U.S. 616, 671-72
(1987) (Scalia, J., dissenting) (“[O]ne must ignore rudimentary principles of political science to draw any
conclusions regarding [congressional] intent from
the failure to enact legislation.”); Bostock v. Clayton
County, 140 S. Ct. 1731, 1747 (2020) (post-enactment
failed legislation is a “particularly dangerous basis on
which to rest an interpretation of an existing law”).
And in this case, countervailing evidence points in
the opposite direction: the American Rescue Plan of
2021 anticipated further student-debt relief by making any discharge of federal student loans through
2025 tax-exempt. See American Rescue Plan Act of
2021, Pub. L. No. 117-2, 135 Stat. 4 (Mar. 11, 2021).
B. The Secretary’s action is justified by
clear congressional authorization.
The Secretary’s action does not implicate the major questions doctrine, and no further inquiry is necessary. But even if the challenged action did raise a
major statutory question, it is supported by clear congressional authorization, for “the [underlying provision] plainly authorizes the Secretary’s” action. NFIB,
142 S. Ct. at 665.
For the reasons already explained, see supra Section I, the plain text of the HEROES Act authorizes
the Department’s action here. The text of the Act explicitly authorizes the Department to modify or waive
federally held student-debt requirements in connection with a national emergency to ensure that affected
borrowers are not placed in a worse position financially. See 20 U.S.C. §§ 1098bb(a)(1)-(2), 1098ee(2)(D).
The Act permits the Secretary to modify or waive any
provision that applies to the three student-loan programs that the federal government administers under
27
the Higher Education Act. See 20 U.S.C. §§ 1087a1087j. This broad grant of authority naturally encompasses the ability to waive or modify the statutory and
regulatory provisions that obligate borrowers to repay
their loans and specify the consequences of failure to
repay. See 20 U.S.C. §§ 1080, 1087e, 1087dd; 34 C.F.R.
§§ 682.102, 682.402, 685.207, 685.212-218. And because the Secretary’s action here fits squarely within
the text and purpose of the statute, the Court need not
strain to determine whether a statutory term designed for one context can be the basis for regulation
in another. See, e.g., West Virginia, 142 S. Ct. at 261415 (finding ambiguity in the term “system,” which,
when “shorn of all context . . . is an empty vessel”).
CONCLUSION
The Court should affirm the judgment of the district court in Nebraska and reverse the judgment of
the district court in Brown.
Respectfully submitted.
JEFFREY B. DUBNER
Counsel of Record
SEAN A. LEV
AMAN T. GEORGE
SARAH R. GOETZ
Democracy Forward
Foundation
P.O. Box 34553
Washington, DC 20043
(202) 383-0794
jdubner@democracyforward.org
Counsel for Amici Curiae
JANUARY 2023
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.