Respondents Brief — Joseph R. Biden, President of the United States, et al., Petitioners v. Nebraska, et al.

Supreme Court briefJan 27, 2023

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No. 22-506

In the Supreme Court of the United States

_____________________________

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

STATES, et al.,

Petitioners,

STATE OF NEBRASKA, et al.,

_____________________________

Respondents.

On Writ of Certiorari before Judgment to the United

States Court of Appeals for the Eighth Circuit

______________________________

BRIEF FOR THE RESPONDENTS

______________________________

ANDREW BAILEY

MICHAEL T. HILGERS

Attorney General of

Missouri

Attorney General of

Nebraska

MICHAEL E. TALENT

JAMES A. CAMPBELL

Deputy Solicitor General

Solicitor General

Counsel of Record

MISSOURI ATTORNEY

HRISTIAN EDMONDS

GENERAL’S OFFICE

Assistant Solicitor

Post Office Box 899

General

Jefferson City, MO 65102

OFFICE OF THE NEBRASKA

(314) 340-4869

ATTORNEY GENERAL

michael.talent@ago.mo.gov

2115 State Capitol

Lincoln, NE 68509

(402) 471-2682

jim.campbell@nebraska.gov

Additional counsel listed with signature block

QUESTIONS PRESENTED

1. Whether State respondents have Article III

standing.

2. Whether the Department of Education’s loancancellation program exceeds the Secretary’s statutory authority or is arbitrary and capricious.

TABLE OF CONTENTS

QUESTIONS PRESENTED ....................................... i

TABLE OF AUTHORITIES ..................................... iv

INTRODUCTION ...................................................... 1

STATEMENT ............................................................. 2

A. Federal Student Loan Framework ................ 2

B. The HEROES Act ........................................... 4

C. COVID-19 and Student Loans....................... 5

D. The Loan Cancellation Program ................... 7

E. Proceedings Below ....................................... 11

SUMMARY OF ARGUMENT.................................. 12

ARGUMENT ............................................................ 15

The States have standing.................................. 15

A. The impending financial harm to MOHELA will injure Missouri. ......................... 15

B. The States are facing direct harm to

specific tax revenues. ................................... 23

C. The Program prompted broad loan consolidation causing injury to the States. ...... 26

II. The Program exceeds the Secretary’s authority. ................................................................... 29

A. This is a major-questions case. .................... 30

1. The key major-questions factors are

present here. ........................................... 31

2. The Government’s efforts to avoid the

major-questions doctrine lack merit. ..... 36

iii

B. The Secretary lacks colorable—let alone

clear—congressional authorization. ............ 38

1. Keeping borrowers from a “worse position” does not permit the mass discharge of loan principal. ......................... 39

2. The Program does not waive or modify

the cited statutory and regulatory provisions...................................................... 44

3. The Program rests on a tenuous and

pretextual connection to a national

emergency. .............................................. 47

4. The Program’s broad scope exceeds the

Secretary’s authority. ............................. 49

III. The Program is arbitrary and capricious. ........ 50

CONCLUSION ......................................................... 53

TABLE OF AUTHORITIES

Cases

Ala. Ass’n of Realtors v. HHS,

141 S. Ct. 2485 (2021) ...............1, 31–32, 40, 42–43

Alfred L. Snapp & Son, Inc. v. Puerto Rico,

458 U.S. 592 (1982) ........................................ 22, 26

Arkansas v. Texas,

346 U.S. 368 (1953) .............................................. 19

Ass’n of Data Processing Serv. Orgs., Inc. v. Camp,

397 U.S. 150 (1970) ........................................ 20, 25

Ayestas v. Davis,

138 S. Ct. 1080 (2018) .......................................... 50

Biden v. Missouri,

142 S. Ct. 647 (2022) ............................................ 38

Biden v. Texas,

142 S. Ct. 2528 (2022) .......................................... 28

California v. Azar,

911 F.3d 558 (9th Cir. 2018) ................................ 26

Cas. Reciprocal Exch. v. Missouri Emps. Mut.

Ins. Co., 956 S.W.2d 249 (Mo. 1997) .................... 17

Cherry Cotton Mills v. United States,

327 U.S. 536 (1946) .............................................. 18

Clapper v. Amnesty Int’l USA,

568 U.S. 398 (2013) .............................................. 25

Clinton v. City of New York,

524 U.S. 417 (1998) ........................................ 20, 25

Davis v. FEC,

554 U.S. 724 (2008) .............................................. 28

Dep’t of Com. v. New York,

139 S. Ct. 2551 (2019) ............. 20, 22–23, 27–28, 53

Dep’t of Transp. v. Ass’n of Am. Railroads,

575 U.S. 43 (2015) ................................................ 17

DHS v. Regents of the Univ. of Cal.,

140 S. Ct. 1891 (2020) .................................... 50–52

Erickson v. United States,

264 U.S. 246 (1924) .............................................. 18

FDA v. Brown & Williamson Tobacco Corp.,

529 U.S. 120 (2000) ........................................ 30, 35

FEC v. Cruz,

142 S. Ct. 1638 (2022) .............................. 25–26, 29

First Nat’l City Bank v. Banco Para El

Comercio Exterior de Cuba,

462 U.S. 611 (1983) .............................................. 19

Florida v. Anderson,

91 U.S. 667 (1875) ................................................ 19

Florida v. Mellon,

273 U.S. 12 (1927) ................................................ 24

Franchise Tax Bd. of Cal. v. Alcan Aluminum Ltd.,

493 U.S. 331 (1990) .................................. 21–22, 27

Getty v. Fed. Sav. & Loan Ins. Corp.,

805 F.2d 1050 (D.C. Cir. 1986)............................. 51

Gonzales v. Oregon,

546 U.S. 243 (2006) ........................................ 31, 41

Hunt v. Wash. State Apple Advert. Comm’n,

432 U.S. 333 (1977) ........................................ 21, 26

Ins. Co. of N. Am. v. United States,

159 F.2d 699 (4th Cir. 1947) ................................ 18

Keifer & Keifer v. Reconstruction Fin. Corp.,

306 U.S. 381 (1939) .............................................. 16

King v. Burwell,

576 U.S. 473 (2015) .............................................. 37

Kisor v. Wilkie,

139 S. Ct. 2400 (2019) .......................................... 35

Knox v. SEIU, Local 1000,

567 U.S. 298 (2012) .............................................. 29

La. Pub. Serv. Comm’n v. FCC,

476 U.S. 355 (1986) .............................................. 36

Lebron v. Nat’l R.R. Passenger Corp.,

513 U.S. 374 (1995) .................................. 16, 18, 20

Mackey v. Lanier Collection Agency & Serv., Inc.,

486 U.S. 825 (1988) .............................................. 40

MCI Telecomms. Corp. v. AT&T,

512 U.S. 218 (1994) ........................................ 45–46

Missouri v. Illinois,

180 U.S. 208 (1901) .............................................. 19

Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm

Mut. Auto. Ins. Co., 463 U.S. 29 (1983) ......... 52–53

NFIB v. OSHA,

142 S. Ct. 661 (2022) .......................1, 31, 34, 48–49

Pennsylvania v. New Jersey,

426 U.S. 660 (1976) .............................................. 25

Rumsfeld v. FAIR,

547 U.S. 47 (2006) ............................................... 15

Simon v. E. Ky. Welfare Rts. Org.,

426 U.S. 26 (1976) ................................................ 28

vii

Spector v. Norwegian Cruise Line Ltd.,

545 U.S. 119 (2005) .............................................. 30

Susan B. Anthony List v. Driehaus,

573 U.S. 149 (2014) .............................................. 15

Texas v. United States,

809 F.3d 134 (5th Cir. 2015) ................................ 26

Todd v. Curators of Univ. of Missouri,

147 S.W.2d 1063 (Mo. 1941)................................. 17

United States v. Sw. Cable Co.,

392 U.S. 157 (1968) .............................................. 38

U.S. Telecom Ass’n v. FCC,

855 F.3d 381 (D.C. Cir. 2017) .............................. 30

Util. Air Regul. Grp. v. EPA,

573 U.S. 302 (2014) .................................. 34–35, 40

Webster v. Doe,

486 U.S. 592 (1988) .............................................. 43

West Virginia v. EPA,

142 S. Ct. 2587 (2022) .............................. 28–37, 39

Wyoming v. Oklahoma,

502 U.S. 437 (1992) ........................................ 23–24

Statutes and Regulations

American Rescue Plan Act of 2021, Pub. L. No.

117-2, 135 Stat. 4 (Mar. 11, 2021) ................. 23, 38

College Cost Reduction and Access Act, Pub. L.

No. 110-84, 121 Stat. 784 (Sep. 27, 2007) ............ 31

Coronavirus Aid, Relief, and Economic Security

Act, Pub. L. No. 116-136, 134 Stat. 281

(Mar. 27, 2020)............................................ 6, 32, 34

viii

Higher Education Act of 1965, Pub. L. No.

89-329, 79 Stat. 1219 (Nov. 8, 1965) ................ 3, 44

20 U.S.C. 1071 et seq. .............................................. 2

20 U.S.C. 1071(d) .................................................... 2

20 U.S.C. 1078-3...................................................... 2

20 U.S.C. 1078-11.............................................. 2, 31

20 U.S.C. 1082(a)(6) .................................... 3, 43–44

20 U.S.C. 1087 ............................................. 2, 11, 45

20 U.S.C. 1087a et seq. ............................................ 2

20 U.S.C. 1087a ..................................................... 11

20 U.S.C. 1087e ..................................................... 11

20 U.S.C. 1087e(g) ................................................... 2

20 U.S.C. 1087e(m) ............................................... 31

20 U.S.C. 1087aa et seq. .......................................... 2

20 U.S.C. 1087dd(g) ........................................ 11, 45

20 U.S.C. 1091b(b)(2)(D)–(E) ................................ 46

20 U.S.C. 1098a(a)(1) ...................................... 37, 52

20 U.S.C. 1098a(b)(2) ............................................ 36

20 U.S.C. 1098e(b)(7) .............................................. 2

Higher Education Opportunity Act, Pub. L. No.

110-315, 122 Stat. 3078 (Aug. 14, 2008) .............. 31

Higher Education Relief Opportunities for

Students Act of 2003, Pub. L. No. 108-76,

117 Stat. 904 (Aug. 18, 2003) ............................. 1, 4

20 U.S.C. 1098aa(b)(1)–(6) ...................................... 4

20 U.S.C. 1098bb(a)(1)–(2)(A) ............................... 39

20 U.S.C. 1098bb(a)(1) ...........................4, 32, 44, 47

20 U.S.C. 1098bb(a)(2) ...................................... 4, 50

20 U.S.C. 1098bb(a)(2)(A) .......... 4, 38–39, 42, 47, 49

20 U.S.C. 1098bb(a)(2)(B) ..................................... 41

20 U.S.C. 1098bb(a)(2)(B)–(E) .......................... 5, 40

20 U.S.C. 1098bb(a)(2)(D) ..................................... 41

20 U.S.C. 1098bb(b)(1) ...................................... 5, 36

20 U.S.C. 1098ee(2)(C) .......................................... 49

20 U.S.C. 1098ee(2)(D) .......................................... 49

20 U.S.C. 1098ee(4) ............................................... 33

Other Federal Statutes:

5 U.S.C. 706(2)(A) ................................................. 50

5 U.S.C. 706(2)(C) ................................................. 29

26 U.S.C. 61(a)(11) ................................................ 23

26 U.S.C. 108(f)(5) ................................................. 23

31 U.S.C. 3711(a)(1) .......................................... 3, 52

State Statutes:

Iowa Code §422.7 .................................................. 23

Kan. Stat. Ann. §79-32,117(a) .............................. 23

Mo. Rev. Stat. §27.060 .................................... 18, 20

Mo. Rev. Stat. §173.360 .................................... 3, 17

Mo. Rev. Stat. §173.385 ........................................ 17

Mo. Rev. Stat. §173.385.1(19) ............................... 21

Mo. Rev. Stat. §173.385.2 ..................................... 21

Mo. Rev. Stat. §173.392.2 ..................................... 21

Mo. Rev. Stat. §173.420 ........................................ 17

Mo. Rev. Stat. §173.445 ........................................ 17

Neb. Rev. Stat. §77-2714.01(1) ............................. 23

S.C. Code §12-6-40 ................................................ 23

Regulations:

31 C.F.R. part 902 ................................................... 3

31 C.F.R. 902.2(a).................................................... 3

34 C.F.R. 30.70(e)(1) ............................................... 3

34 C.F.R. part 674, subpart D ........................ 11, 45

34 C.F.R. 674.53 .................................................... 45

34 C.F.R. 674.55 .................................................... 45

34 C.F.R. 674.57 .................................................... 45

34 C.F.R. 674.59 .................................................... 45

34 C.F.R. 674.61 .................................................... 45

34 C.F.R. 682.402 ............................................ 11, 45

34 C.F.R. 685.212 ............................................ 11, 45

34 C.F.R. 685.220 .................................................... 2

34 C.F.R. 685.221(f) .............................................. 23

Other Authorities

68 Fed. Reg. 69,312

(Dec. 12, 2003) ...........................5, 34–35, 40, 42, 46

72 Fed. Reg. 72,947 (Dec. 26, 2007)........................... 5

74 Fed. Reg. 55,439 (Oct. 23, 2009) ......................... 33

77 Fed. Reg. 59,311 (Sep. 27, 2012) ........................... 5

82 Fed. Reg. 45,465 (Sep. 29, 2017) ........................... 5

84 Fed. Reg. 4,949 (Feb. 15, 2019)........................... 33

85 Fed. Reg. 49,585 (Aug. 8, 2020) ............................ 6

85 Fed. Reg. 79,856 (Dec. 11, 2020)..........6, 34, 40, 42

86 Fed. Reg. 5,008 (Jan. 19, 2021)............................. 6

86 Fed. Reg. 7,037 (Jan. 20, 2021)........................... 33

87 Fed. Reg. 52,943 (Aug. 30, 2022) .......................... 8

87 Fed. Reg. 61,512 (Oct. 12, 2022) ......7–9, 11, 45–46

149 Cong. Rec. H2553–54 (Apr. 1, 2003) ................... 4

149 Cong. Rec. E663 (Apr. 3, 2003) ........................... 4

149 Cong. Rec. S10866 (July 31, 2003) ..................... 4

Akana & Ritter, Expectations of Student Loan

Repayment, Forbearance, and Cancellation,

Fed. Reserve Bank of Phila. (2022),

https://perma.cc/P5FA-ZSEN ............................... 49

Biden, Joe Biden Outlines New Steps to Ease

Economic Burden on Working People,

Medium (Apr. 9, 2020),

https://perma.cc/7SLA-XJ8Z ............................ 7, 48

Biden-Harris Economic Blueprint (Sept. 2022),

https://perma.cc/QFW5-DCAD ............................. 10

Biden Says COVID-19 Pandemic Is “Over” in

U.S., CBS News (Sep. 19, 2022),

https://perma.cc/6ZCB-TL65 ................................ 10

Black’s Law Dictionary (11th ed. 2019) ...... 43, 45–46

xii

Cong. Rsch. Serv., Statutory Basis for Biden

Administration Student Loan Forgiveness

(Sep. 13, 2022) ...................................................... 33

Cong. Rsch. Serv., The Biden Administration

Extends the Pause on Federal Student Loan

Payments (Jan. 27, 2021) ..................................... 34

Dep’t of Educ., Biden Administration Extends

Student Loan Pause until January 31, 2022

(Aug. 6, 2021), https://perma.cc/CUC3-XXZ5 ........ 7

Dep’t of Educ., Biden-Harris Administration

Extends Student Loan Pause through

August 31 (Apr. 6, 2022),

https://perma.cc/5CT7-8MVK................................. 7

Dep’t of Educ., Biden-Harris Administration

Extends Student Loan Pause through May

1, 2022 (Dec. 22, 2021),

https://perma.cc/F47Y-XR9Y .................................. 7

Dep’t of Educ., Delivering on President Trump’s

Promise (Mar. 20, 2020),

https://perma.cc/R7BG-GPSL ................................ 6

Friedman, Biden Was Asked about $10,000 of

Student Loan Cancellation. Here’s What He

Said., Forbes (Jan. 20, 2022),

https://perma.cc/9ASL-PJ92................................... 8

H.R. 2034, 117th Cong. (2021)................................. 32

H.R. 6800, 116th Cong. (2020)............................. 6, 32

H.R. Rep. No. 110-210 (2007) .................................. 31

Letter from Congressional Budget Office to

Members of Congress (Sep. 26, 2022),

https://perma.cc/62FW-M6BQ.......................... 9, 31

xiii

McCausland, What Is Causing Inflation?

Economists Point Fingers at Different

Culprits, NBC (Feb. 16, 2022),

https://perma.cc/35VP-YBJQ ............................... 47

Memorandum from Reed Rubinstein to Betsy

DeVos (Jan. 12, 2021),

https://perma.cc/D94K-A7AV ........................... 6, 33

Missouri Dep’t of Higher Educ. and Workforce

Development, Grants and Scholarships,

https://perma.cc/4GR3-MDLD.............................. 21

MOHELA FY 2022 Financial Statement,

https://perma.cc/2F8G-WWWV ................ 15–16, 21

Nova, Biden Will Call on Congress to Forgive

$10,000 in Student Debt for All Borrowers,

CNBC (Jan. 8, 2021),

https://perma.cc/597N-2MTF ........................... 8, 32

Office of Legal Counsel, U.S. Dep’t of Justice,

Use of the Heroes Act of 2003 to Cancel the

Principal Amounts of Student Loans, 2022

WL 3975075 (Aug. 23, 2022) .......................... 33, 41

S. 2235, 116th Cong. (2019) ..................................... 32

Stratford, Biden Administration Scales Back

Student Debt Relief for Millions Amid Legal

Concerns, Politico (Sep. 29, 2022),

https://perma.cc/24Q2-DV7M ......................... 11, 53

Stratford & Daniels, How Biden Finally Got to

“Yes” on Canceling Student Debt, Politico (Aug.

25, 2022), https://perma.cc/H7X4-5URZ. ......... 7, 31

xiv

Sweet v. Cardona,

No. 19-cv-3674, D. Ct. Doc. 337

(N.D. Cal. Nov. 9, 2022) ................................... 3, 44

Turner, In a Reversal, the Education Dept. Is

Excluding Many from Student Loan Relief,

NPR (Sep. 30, 2022),

https://perma.cc/8S5Z-8VLC ................................ 10

U.S. Gov’t Accountability Office, Federal Student

Aid: Education Needs to Take Steps to Ensure

Eligible Loans Receive Income-Driven

Repayment Forgiveness (2022),

https://perma.cc/4AAY-EE5K......................... 23–24

Weissman, An Extremely Important Statistic

about Student Debt That Has Never Been

Published, Slate (Mar. 24, 2021),

https://perma.cc/XRJ7-5QVL ............................... 52

INTRODUCTION

This case calls on the Court once again to stop the

administration from unlawfully invoking COVID-19

to assert power beyond anything Congress could have

conceived. Previously, the Court stopped CDC’s eviction moratorium. Ala. Ass’n of Realtors v. HHS, 141

S. Ct. 2485, 2490 (2021) (per curiam). Later, it stayed

OSHA’s vaccine-or-test mandate. NFIB v. OSHA, 142

S. Ct. 661, 666–67 (2022) (per curiam). Now, while

President Biden declares the pandemic over, his Secretary of Education and Department of Education cite

COVID-19 to justify the Loan Cancellation Program—an unlawful attempt to eliminate $430 billion

of federal student-loan debt.

Canceling hundreds of billions of dollars in student loans—through a decree that extends to nearly

all borrowers—is a breathtaking assertion of power

and a matter of great economic and political significance. The Higher Education Relief Opportunities for

Students Act of 2003 (HEROES Act), Pub. L. No. 10876, 117 Stat. 904 (Aug. 18, 2003)—which the Secretary has never used to cancel student loans—does not

authorize the Program, much less with the clarity this

Court’s precedent requires.

The Act allows the Secretary to waive or modify

existing provisions when necessary to keep certain

borrowers from being placed in a worse position in

relation to their loans because of a national emergency. But the Program places an estimated 43 million borrowers in a better position by eliminating all

loan balances for 20 million and erasing up to $20,000

for over 20 million more. This vastly exceeds the

Secretary’s authority under the Act, and the Court

should affirm the Eighth Circuit’s decision to enjoin

the Program.

STATEMENT

A. Federal Student Loan Framework

Title IV of the Higher Education Act (HEA) covers

three types of student loans. First, the Perkins Loan

Program allowed schools to issue loans partially

funded by federal money until that program ended in

2017. 20 U.S.C. 1087aa et seq. Second, the Federal

Family Education Loan (FFEL) Program, initiated in

1965, authorized non-federal entities to issue Department-insured loans. Id. 1071 et seq. That program

ended in 2010, id. 1071(d), but some FFEL Loans are

still held by non-federal entities, while the Department has acquired others, J.A. 213–15. Third, Direct

Loans, which first issued in 1994, are federally funded, 20 U.S.C. 1087a et seq., but serviced by nonfederal entities, J.A. 68–93. Borrowers may use the

consolidation process to convert their FFEL Loans

into Direct Loans. 20 U.S.C. 1078-3; id. 1087e(g); 34

C.F.R. 685.220.

Congress has specifically identified when student

loans may be discharged. It has created loan-forgiveness programs for specific groups of borrowers. E.g.,

20 U.S.C. 1078-11 (borrowers serving in areas of national need). Congress also allows loan discharge in a

few unfortunate circumstances, such as when a borrower dies or becomes disabled. E.g., id. 1087. And it

permits discharge of remaining loan principal at the

end of certain repayment plans. E.g., id. 1098e(b)(7).

When these congressionally prescribed cancellations are unavailable, Congress’s charge to the Secretary is clear: “try to collect” the money owed. 31 U.S.C.

3711(a)(1). While the Secretary has some power to

“compromise” claims, 20 U.S.C. 1082(a)(6), the Department’s regulations narrowly confine that authority, 34 C.F.R. 30.70(e)(1) (incorporating standards

from 31 C.F.R. part 902); 31 C.F.R. 902.2(a) (allowing

compromise only in limited circumstances). And

though that compromise authority has existed since

1965, see Higher Education Act of 1965, Pub. L. No.

89-329, §432(a)(6), 79 Stat. 1219 (Nov. 8, 1965), the

Department admits that it has historically used that

authority “on an individualized, case-by-case basis.”

Sweet v. Cardona, No. 19-cv-3674, D. Ct. Doc. 337, at

2 (N.D. Cal. Nov. 9, 2022). The Department did not

invoke that power for targeted “group discharges”

until 2019, and even now, that has occurred only a

handful of times for attendees of specific schools engaged in malfeasance. Ibid.

Respondent States participate in the federal student-loan industry. The Higher Education Loan Authority of the State of Missouri (MOHELA) is a state

“public instrumentality” that performs the “essential

public function” of ensuring Missouri students “have

access to student loans.” Mo. Rev. Stat. §173.360. MOHELA services Direct Loans under a contract with

the Department, J.A. 62–64, 68–93, and holds FFEL

Loans that secure its bonds and provide “ongoing revenue streams,” J.A. 64. Another state entity named

the Arkansas Student Loan Authority (ASLA) holds

FFEL Loans that provide the agency “a source of

revenue.” J.A. 133 ¶6. And the Nebraska Investment

Council (NIC), which manages the State’s assets,

invests in FFEL-based student-loan asset-backed securities (SLABS). J.A. 103 ¶¶4–7.

B. The HEROES Act

Congress enacted the HEROES Act to assist

active-duty military in the wake of the 9/11 terrorist

attacks. Pub. L. No. 108-76. This uncontroversial

measure passed by a 421-1 vote in the House, see 149

Cong. Rec. H2553–54 (Apr. 1, 2003)—with the one

“no” vote later clarifying that he “meant to vote ‘yea,’ ”

149 Cong. Rec. E663 (Apr. 3, 2003)—and a unanimous

voice vote in the Senate, 149 Cong. Rec. S10866 (July

31, 2003). Congress’s findings focus on affording relief

to people serving in the “military” for “our nation’s defense.” 20 U.S.C. 1098aa(b)(1)–(6).

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

the student financial assistance programs” when “necessary in connection with a war or other military

operation or national emergency.” 20 U.S.C.

1098bb(a)(1). The waiver or modification must also

“be necessary to ensure that” one of five specific statutory goals is achieved. Id. 1098bb(a)(2). The first is to

ensure that “recipients of student financial assistance

. . . who are affected individuals are not placed in a

worse position financially in relation to that financial

assistance because of their status as affected individuals.” Id. 1098bb(a)(2)(A). The other four goals are to

(1) “minimize[ ]” “administrative requirements” on

“affected individuals” to avoid “defaults,” (2) “modif[y]” various “calculation[s]” for determining financial “need,” (3) excuse withdrawing students from “return[ing]” a grant “overpayment,” and (4) provide

“temporary relief” from requirements “rendered infeasible or unreasonable.” Id. 1098bb(a)(2)(B)–(E).

The Secretary “shall” publish notice in the Federal

1098bb(b)(1).

In December 2003, the Secretary issued the first

set of HEROES Act waivers and modifications. 68

Fed. Reg. 69,312 (Dec. 12, 2003). Those changes were

modest. They provided flexibility when calculating

affected individuals’ needed funds, id. at 69,313–14,

exempted withdrawing students from “repay[ing] an

overpayment of grant funds,” id. at 69,314, relaxed

various paperwork and documentation requirements,

id. at 69,314–18, provided short extensions of borrower notice requirements, id. at 69,315, delayed commencement of loan repayment, id. at 69,315–16, eased

requirements for and restrictions on specific statutory

deferment and forbearance options, id. at 69,316–17,

paused “collection on defaulted loans,” id. at 69,316,

and excused certain disruptions in service or missed

payment for existing loan-cancellation, rehabilitation, and reinstatement programs, id. at 69,316–17.

While the Secretary later extended these waivers

and modifications (with slight changes), e.g., 72 Fed.

Reg. 72,947 (Dec. 26, 2007); 77 Fed. Reg. 59,311 (Sep.

27, 2012); 82 Fed. Reg. 45,465 (Sep. 29, 2017), they

are the only instances in which the Secretary invoked

the Act before COVID-19. None of them discharged

borrowers’ loan principal.

C. COVID-19 and Student Loans

On March 20, 2020, then-Secretary Betsy DeVos,

without specifying her source of authority, announced

a 60-day pause on payments and interest accrual for

Department-held student loans. Dep’t of Educ., Delivering on President Trump’s Promise (Mar. 20, 2020),

https://perma.cc/R7BG-GPSL. A week later, Congress

enacted the Coronavirus Aid, Relief, and Economic

Security Act (CARES Act), which suspended until

September 30, 2020, all payments due, interest

accrual, and collection for Direct Loans and FFEL

Loans held by the Department. Pub. L. No. 116-136,

§3513, 134 Stat. 281 (Mar. 27, 2020). Later in 2020,

Congress considered—but rejected—a COVID-relief

bill that would have canceled up to $10,000 in

student-loan debt. H.R. 6800, 116th Cong. §150117

(2020).

After the CARES Act payment pause expired, President Trump directed Secretary DeVos “to continue

the temporary cessation of payments and the waiver

of all interest on student loans held by the Department . . . until December 31, 2020.” 85 Fed. Reg.

49,585, 49,585 (Aug. 8, 2020). In December 2020,

Secretary DeVos published the first COVID-related

HEROES Act notice in the Federal Register. 85 Fed.

Reg. 79,856 (Dec. 11, 2020). That notice “modif[ied]

the terms of the [payment pause] benefits provided

under . . . the CARES Act such that they will continue

to be provided to borrowers until December 31, 2020.”

Id. at 79,863. A subsequent HEROES Act notice extended that deadline until January 31, 2021. 86 Fed.

Reg. 5,008, 5,008 (Jan. 19, 2021). Meanwhile, the

Department’s Office of General Counsel concluded

that the HEROES Act does not authorize “mass cancellation . . . of student loan principal balances.” Memorandum from Reed Rubinstein to Betsy DeVos at 6

(Jan. 12, 2021), https://perma.cc/D94K-A7AV (Rubinstein Memo).

President Biden’s administration repeatedly extended the payment pause through various press releases but did not publish a HEROES Act notice until

October 2022. E.g., Dep’t of Educ., Biden Administration Extends Student Loan Pause until January

31, 2022 (Aug. 6, 2021), https://perma.cc/CUC3-XXZ5

(“announc[ing] a final extension of the pause” and “a

definitive end date”); Dep’t of Educ., Biden-Harris Administration Extends Student Loan Pause through

May 1, 2022 (Dec. 22, 2021), https://perma.cc/F47YXR9Y; Dep’t of Educ., Biden-Harris Administration

Extends Student Loan Pause through August 31 (Apr.

6, 2022), https://perma.cc/5CT7-8MVK (“the economy

continues to improve and COVID cases continue to

decline”); 87 Fed. Reg. 61,512, 61,513–14 (Oct. 12,

2022) (extending the CARES Act’s “Suspension of

Payments”).

D. The Loan Cancellation Program

Just weeks after the CARES Act passed, thencandidate Biden said that Congress’s “next recovery

package will need to” include “an immediate cancellation of a minimum of $10,000 of student debt per

person.” Biden, Joe Biden Outlines New Steps to Ease

Economic Burden on Working People, Medium (Apr.

9, 2020), https://perma.cc/7SLA-XJ8Z (Biden, Medium). Going further, he “propose[d] to forgive all

undergraduate tuition-related federal student debt

from . . . public colleges and universities for debtholders earning up to $125,000.” Ibid.

Months later, “Biden entered the presidency

deeply skeptical of the idea” that “he had the authority” to unilaterally “writ[e] off large chunks of student loan debt.” Stratford & Daniels, How Biden

Finally Got to “Yes” on Canceling Student Debt, Politico (Aug. 25, 2022), https://perma.cc/H7X4-5URZ. So

he reiterated his request for “Congress to

immediately cancel $10,000 in student debt per

borrower.” Nova, Biden Will Call on Congress to

Forgive $10,000 in Student Debt for All Borrowers,

CNBC (Jan. 8, 2021), https://perma.cc/597N-2MTF.

For the first year of his presidency, Biden was “consistent that Congress”—not the Department—“should

cancel student loans.” Friedman, Biden Was Asked

about $10,000 of Student Loan Cancellation. Here’s

What He Said., Forbes (Jan. 20, 2022),

https://perma.cc/9ASL-PJ92. But when Congress did

not act, and with the midterm election quickly approaching, the President took matters into his own

hands.

On August 24, 2022, the President and the Department announced the Program through government

websites and press briefings. J.A. 117–31, 195–207.

Administration officials explained that “the President

promised to provide targeted student debt relief”

“[d]uring the [presidential] campaign” and was now

“following through.” J.A. 117–18. In an accompanying

memorandum, the Department “formally rescinded”

its prior position that the HEROES Act does not

authorize the Secretary to cancel student-loan principal. 87 Fed. Reg. 52,943, 52,945 (Aug. 30, 2022).

The Program applies to Department-held Direct,

FFEL, and Perkins Loans. 87 Fed. Reg. at 61,514. To

be eligible, borrowers must have “an Adjusted Gross

Income (AGI) below $125,000 for an individual

taxpayer or below $250,000 for borrowers filing

jointly . . . in either the 2020 or 2021 Federal tax

year.” Ibid. These income cutoffs include almost all

borrowers because approximately 95 percent of households earn less than $250,000 annually. J.A. 112–

13, 119. The Department will cancel up to $20,000 for

eligible borrowers who received a Pell grant and

$10,000 for those who did not. 87 Fed. Reg. at 61,514.

The Department’s administrative documents do

not discuss the Program’s cost, but the Congressional

Budget Office estimates that the Program will eliminate $430 billion of the outstanding $1.6 trillion in

federal student-loan debt. Letter from Congressional

Budget Office to Members of Congress 3 (Sep. 26,

2022), https://perma.cc/62FW-M6BQ (CBO Letter).

Another analysis projects the Program will cost up to

$519 billion over ten years. J.A. 108. The Department

announced that roughly 43 million borrowers will be

eligible for the Program, and 20 million “will have

their debt completely canceled.” J.A. 119.

The Department’s August 24 Rationale Memo

tries to justify the Program. J.A. 232–55. It speculates

that borrowers face a risk of “delinquency and default” because the payment pause is ending and current “[e]conomic conditions” are difficult. J.A. 233–39.

While maintaining that COVID-19 caused the current

economic conditions, the Department’s analysis admits that “other factors (such as Russia’s invasion of

Ukraine)” have “contributed” to those economic conditions, including the “rise of inflation.” J.A. 238.

Without considering any option except loan cancellation, the memo concludes that reducing principal

balances would decrease most eligible borrowers’

monthly payments by a few hundred dollars, which,

in turn, would reduce their likelihood of default. J.A.

240–44. The Secretary officially approved the Program at 9:25 a.m. the day he received the memo. J.A.

257–59.

Meanwhile, the Government has been undermining what the Department said in the Rationale Memo.

As to the COVID-19 justification, the President declared “[t]he pandemic . . . over” in September 2022.

Biden Says COVID-19 Pandemic Is “Over” in U.S.,

CBS News (Sep. 19, 2022), https://perma.cc/6ZCBTL65. And as to the current economic conditions, the

White House announced that “household finances are

stronger than pre-pandemic.” Biden-Harris Economic

Blueprint 29 (Sep. 2022), https://perma.cc/QFW5DCAD (emphasis added).

The Program’s details initially appeared only on

the Department’s website. J.A. 195–207. The website

told “borrowers with privately held federal student

loans,” including FFEL Loans, that they could receive

the Program’s benefits “by consolidating . . . into the

Direct Loan program.” J.A. 201. This incentivized

borrowers to consolidate those loans. See J.A. 133

¶¶6–7. On September 29, 2022—the day this suit

began, but after the complaint was filed—the Department edited its website to state that borrowers with

non-federally held FFEL Loans can no longer become

eligible “by consolidating,” but that those who “applied to consolidate” before that date remain “eligible.”

J.A. 215. Compare D. Ct. Doc. 1 (suit filed at 9:54 a.m.

Central), with Turner, In a Reversal, the Education

Dept. Is Excluding Many from Student Loan Relief,

NPR (Sep. 30, 2022), https://perma.cc/8S5Z-8VLC

(suggesting the Department’s website changed

around 11:39 a.m. Eastern). The Department has

never explained this change, but reports indicate that

the agency sought to avoid judicial review because

entities holding and investing in FFEL Loans were

“widely seen . . . inside . . . the administration[ ] as

presenting the greatest legal risk” to the Program.

Stratford, Biden Administration Scales Back Student

Debt Relief for Millions Amid Legal Concerns, Politico

(Sep. 29, 2022), https://perma.cc/24Q2-DV7M.

A few weeks later, on October 12, 2022, the

HEROES Act notice detailing the Program was published in the Federal Register. 87 Fed. Reg. at 61,512.

It states that “the Secretary modifies the provisions

of: 20 U.S.C. 1087, which applies to the Direct Loan

Program under 20 U.S.C. 1087a and 1087e; 20 U.S.C.

1087dd(g); and 34 CFR part 674, subpart D, and 34

CFR 682.402 and 685.212.” Id. at 61,514. The Secretary modified—but did not waive—those provisions,

all of which address the discharge or cancellation of

loans, by rewriting them to create a new loan-cancellation program. See ibid.

E. Proceedings Below

The day they filed suit, the States moved for a preliminary injunction, arguing that the Secretary exceeded his authority by approving the Program and

that the Program is arbitrary and capricious under

the Administrative Procedure Act (APA). J.A. 1–44.

The district court denied the States’ motion and dismissed the case for lack of standing. J.A. 135–51.

The Eighth Circuit enjoined the Program pending

appeal. J.A. 160–67. Starting with standing, the court

observed that “MOHELA obtains revenue from the

accounts it services,” its revenue “will decrease if a

substantial portion of its accounts are no longer active,” and this will produce an “unanticipated financial downturn.” J.A. 164. The court also detailed the

close relationship between Missouri and MOHELA:

(1) Missouri’s legislature created MOHELA; (2) MOHELA’s board consists exclusively of individuals

chosen by the governor and officials from other state

agencies; and (3) state law requires MOHELA to contribute to the Lewis and Clark Discovery Fund (LCD

Fund) in the State Treasury. J.A. 163. It “may well

be,” the court reasoned, that MOHELA is “an arm of

the State of Missouri.” J.A. 163–64 (collecting cases).

Regardless, the Program’s negative “financial impact

on MOHELA . . . threatens to independently impact

Missouri” by preventing or delaying MOHELA from

satisfying its obligation to pay money to the State

Treasury. J.A. 164.

The Eighth Circuit then explained that the States

raised “substantial questions of law” and “the equities

strongly favor an injunction considering the [Program’s] irreversible impact.” J.A. 165. Limiting the

injunction’s scope would fail to provide “complete relief” because MOHELA services millions of studentloan accounts nationwide. J.A. 165–66.

SUMMARY OF ARGUMENT

I. The States have standing to challenge the Program. First, the Program will inflict substantial financial losses on MOHELA, and those losses injure

Missouri. MOHELA is a state-created and state-controlled public entity that performs essential public

functions for the State. As such, MOHELA is part of

Missouri, and the State has standing to challenge

actions that impair MOHELA’s finances. In addition,

MOHELA’s financial losses harm Missouri by threatening to reduce, delay, or otherwise hinder MOHELA’s financial contributions to the State Treasury and

the State’s financial-aid programs.

Second, Nebraska, Iowa, Kansas, and South Carolina have standing because the Program threatens

the direct loss of income from taxing student-loan discharges. The States are set to begin taxing those

discharges after 2025, and many student loans will be

discharged at that time. But the Program will reduce

the number and amount of those loans now, which

will inevitably decrease the States’ future tax revenue. That establishes standing.

Third, when this suit began, Arkansas, Missouri,

and Nebraska were suffering financial harm because

the Program prompted borrowers to consolidate nonfederally held FFEL Loans into Direct Loans. This

widespread consolidation reduces the revenue that

Arkansas’s ASLA earns from its FFEL Loans, deprives MOHELA of FFEL Loans that generate interest

income and secure bonds, and undermines Nebraska’s investments in FFEL-based SLABS. The

Government wants to ignore those harms because the

Department removed the consolidation pathway to

access the Program after this suit began. But that

raises a mootness issue—not a standing question—

and the Government has not met its heavy burden to

show that it will not reopen the consolidation pathway.

II. On the merits, the Program exceeds the Secretary’s authority under the HEROES Act. To begin,

this is a major-questions case. Discharging almost a

half-trillion dollars owed to the Department is, as the

Government admitted below, undoubtedly a matter of

economic and political significance. And the Secretary’s unprecedented reading of the HEROES Act

claims breathtaking and transformative power beyond his institutional role and expertise. In short, the

Secretary’s asserted cancellation power is the type of

major question that courts presume Congress reserves for itself. That this case involves a governmentbenefit program is no cause to discard the majorquestions doctrine because the doctrine’s separationof-powers underpinnings apply equally in this context

as in others.

The Government has not shown colorable—let

alone clear—congressional authorization for the Program. The HEROES Act permits the Secretary to

keep borrowers from a “worse position” by maintaining the status quo. It does not allow the Secretary to

put nearly every borrower in a better position by

reducing or eliminating their principal balances. The

Act also limits the Secretary to “waiving or modifying”

statutory or regulatory provisions. Yet here, the

Secretary’s HEROES Act notice does not purport to

“waive” the cited provisions, and his decision to

rewrite those provisions to create a new loan-cancellation program goes way beyond “modifying” them. Nor

did the Secretary sufficiently connect the Program to

the COVID-19 emergency. His tenuous attempt to do

so is a pretext masking his true purpose—to fulfill the

President’s campaign promise on student-loan forgiveness. The Program’s broad scope also demonstrates its unlawfulness. It includes all but the top five

percent of earners, and the Secretary’s unpublished,

self-reported data confirm that most eligible borrowers do not expect to need the relief given. This

complete failure to tailor the Program exceeds the

Secretary’s authority.

III. The Program is also arbitrary and capricious.

The Secretary did not consider any alternatives to

help borrowers besides mass loan cancellation. Nor

did he assess the States’ legitimate reliance interests.

Also glaring is the Secretary’s failure to explain the

abrupt shift in the consolidation pathway to eligibility. All these failures violate the APA.

ARGUMENT

I. The States have standing.

“[T]he presence of one party with standing is

sufficient” for Article III. Rumsfeld v. FAIR, 547 U.S.

47, 52 n.2 (2006). Standing requires “(1) an injury in

fact, (2) a sufficient causal connection,” and “(3) a likelihood that the injury will be redressed by a favorable

decision.” Susan B. Anthony List v. Driehaus, 573

U.S. 149, 157–58 (2014) (cleaned up). The States satisfy these elements for three groups of injuries: (1) financial harms to Missouri through MOHELA; (2) lost

revenue from taxing student-loan discharges; and

(3) financial injuries from the consolidation of FFEL

Loans into Direct Loans.

A. The impending financial harm to MOHELA will injure Missouri.

The Government does not seriously dispute that

the Program will inflict great financial harm on MOHELA. Nor could it. Last fiscal year, MOHELA

earned $88.9 million—roughly 77.5 percent of its

operating revenue—from servicing 5.2 million Direct

Loan accounts. MOHELA FY 2022 Financial State-

ment at 4, 23, https://perma.cc/2F8G-WWWV (MOHELA Financial Statement). This revenue depends

on how many accounts MOHELA services—the more

accounts, the more it earns. J.A. 71–72. But the Department estimates that the Program will completely

eliminate the debt of nearly half of all borrowers. J.A.

118–19. Because many of those borrowers have multiple accounts, see J.A. 94–101, the Program threatens at least half of the Direct Loan accounts MOHELA services—and likely more. That jeopardizes

nearly 40 percent of MOHELA’s total operating revenue—or $44 million annually. See MOHELA Financial Statement, supra, at 4, 23.

These financial losses establish Missouri’s standing for two reasons: (1) MOHELA is a Missouricreated and -controlled public instrumentality, so its

harms are harms to the State; and (2) MOHELA’s

losses jeopardize its financial contributions to Missouri.

1. Missouri has standing because MOHELA is a

public instrumentality of the State. “Governmentcreated and -controlled corporations are” often “part

of the Government itself.” Lebron v. Nat’l R.R. Passenger Corp., 513 U.S. 374, 397 (1995). Such corporations exist when the Government (1) “creates [the]

corporation by special law,” (2) “for the furtherance of

governmental objectives,” and (3) “retains for itself

permanent authority to appoint a majority of the

directors.” Id. at 399. It matters not if those entities

lack “sovereign immunity,” id. at 392, or possess “the

authority to-sue-and-be-sued,” Keifer & Keifer v.

Reconstruction Fin. Corp., 306 U.S. 381, 390 (1939).

“[T]he practical reality of [government] control and

supervision prevails” over corporate labels. Dep’t of

Transp. v. Ass’n of Am. Railroads, 575 U.S. 43, 55

(2015).

Applying those factors, MOHELA is part of Missouri’s government. First, the legislature created MOHELA by special law. Mo. Rev. Stat. §173.360. Second, Missouri declares that “the exercise by [MOHELA] of the powers conferred” on it, which include

ensuring access to loans for Missouri students, is “the

performance of an essential public function.” Ibid.

Third, the governor appoints five of MOHELA’s seven

members; the remaining two are officials of other

state entities; and all seven are “remov[able] by the

governor” for cause. Ibid.

Other considerations underscore Missouri’s control over MOHELA. The State established MOHELA’s powers, see id. §173.385, and in doing so controls

MOHELA by limiting it to only those powers. Missouri also “assigned” MOHELA to its Department of

Higher Education and Workforce Development and

requires annual reports of MOHELA’s finances. Id.

§173.445. Additionally, the State preserved its authority “over assets of” MOHELA, id. §173.420, and may

“abolish” MOHELA at its pleasure, see Cas. Reciprocal Exch. v. Missouri Emps. Mut. Ins. Co., 956 S.W.2d

249, 255 (Mo. 1997) (en banc). And though not essential, MOHELA qualifies as a “public entity” entitled

to sovereign immunity from tort claims under state

law. See id. at 254 (discussing sovereign-immunity

factors); Todd v. Curators of Univ. of Missouri, 147

S.W.2d 1063, 1064 (Mo. 1941) (immunity for entity

that “may sue and be sued”).

Because MOHELA is a Missouri-created and -controlled entity, the State may sue in its name to vindicate harms to MOHELA. Indeed, Missouri law

authorizes its Attorney General to sue “in the name

and on the behalf of the state . . . to protect the rights

and interests of the state.” Mo. Rev. Stat. §27.060.

Caselaw involving federally created corporations

supports Missouri’s standing. It is “well settled” that

“when the United States acts through the agency of a

wholly owned corporation, it may sue in its own name

for the protection of its interest, without the joinder of

the corporation.” Ins. Co. of N. Am. v. United States,

159 F.2d 699, 702 (4th Cir. 1947) (collecting cases). In

Cherry Cotton Mills v. United States, 327 U.S. 536,

539 (1946), for example, when a private company sued

the Government for a tax refund, the Court allowed

the Government to counterclaim based on the interests of the federally created Reconstruction Finance

Corporation (without joining the corporation as a

party) because Congress created the corporation to

achieve “Governmental purposes.” Similarly, Erickson v. United States, 264 U.S. 246, 248–49 (1924),

held that the Government’s lawsuit over a contract

dispute between the federally created Spruce Corporation and a third party was “a suit brought by the

United States” regardless of whether the corporation

“join[ed] in the suit.” See also Lebron, 513 U.S. at

395–96 (discussing other cases treating governmentcreated corporations as “part of the Government”).

That the entity in each of these cases took a corporate

form did not “make it something other than what it

actually is, an agency selected by Government to

accomplish purely Governmental purposes.” Cherry

Cotton Mills, 327 U.S. at 539.

Precedent involving States is no different. For instance, Arkansas v. Texas, 346 U.S. 368, 370–71

(1953), held that “any injury” to the University of Arkansas was “an injury to Arkansas” because the legislature “created” the university, the governor “appointed” its board, the university “report[ed]” its finances to the State, and the university is “ ‘a body politic

and corporate’ with power to issue bonds” (even

though those bonds did “not pledge the credit of the

State”). See also Florida v. Anderson, 91 U.S. 667,

675–76 (1875) (Florida’s interest in a state-created

entity controlled by state officials “is sufficiently

direct to give [the State] standing”); cf. Missouri v.

Illinois, 180 U.S. 208, 242 (1901) (Illinois was

correctly “made a party” for the actions of a sanitary

district that was “a public corporation . . . within the

control of the state”). For similar reasons, Missouri

has standing here.

The Government’s argument ignores all that precedent, relying instead on general principles of “corporate separateness.” Br. 28–29. The Government’s

primary case—First National City Bank v. Banco

Para El Comercio Exterior de Cuba, 462 U.S. 611,

623–27 (1983) (Bancec)—involved foreign government corporations, recognized that corporate separateness often gives way when the corporation is

controlled by another, id. at 629, and distinguished

prior cases addressing “the legal status” of domestic

“government instrumentalities” because they involved “contexts” not “relevant” there, id. at 623 n.12. By

its own terms, then, Bancec did not displace the caselaw discussed above.

The Government emphasizes that MOHELA has a

measure of separation—mainly “financial separation”—from Missouri. Br. 29. But the Government

overplays this. As explained above, MOHELA is controlled by the State because its members are chosen

by the governor or are officials of other state entities;

the State gave MOHELA all its powers and can dissolve MOHELA and take its assets; and MOHELA

annually reports its finances to the State. Also, as

discussed below, MOHELA owes money to the State

and helps fund the State’s financial-aid programs.

More importantly, quibbling about the degree of financial separation is beside the point because government-created and -controlled corporations are part of

the government even if they are “distinct . . . financially.” Lebron, 513 U.S. at 394–95. Nor is it relevant

whether MOHELA was “involved with the decision of

the Missouri Attorney General’s Office” to file this

suit. Br. 29. The Attorney General alone decides whether to sue to protect the “interests of the state.” Mo.

Rev. Stat. §27.060.

2. Missouri also has standing because MOHELA’s

financial losses jeopardize its monetary contributions

to the State. Allegations of future injury establish

standing if “there is a substantial risk that the harm

will occur.” Dep’t of Com. v. New York, 139 S. Ct. 2551,

2565 (2019) (citation omitted). When the harm is financial, a plaintiff need only show “a sufficient likelihood of economic injury,” Clinton v. City of New York,

524 U.S. 417, 432 (1998), which exists when the challenged action “might entail some future loss,” Ass’n of

Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S.

150, 152 (1970). Missouri satisfies that standard.

MOHELA transfers money to Missouri in two

ways. First, MOHELA has given $245 million—and

still owes $105 million—to the State’s LCD Fund, see

MOHELA Financial Statement, supra, at 20; Mo.

Rev. Stat. §173.385.2, which supports “capital projects” at Missouri’s “public colleges and universities,”

Mo. Rev. Stat. §173.392.2. Second, Missouri has authorized MOHELA to provide student financial aid, id.

§173.385.1(19), and MOHELA has done so by contributing, at the governor’s request, nearly $100 million

over the last 12 years to the State’s scholarship and

grant programs, see J.A. 62; MOHELA Financial

Statement, supra, at 10; Missouri Dep’t of Higher

Educ. and Workforce Development, Grants and Scholarships, https://perma.cc/4GR3-MDLD (listing the

State’s programs).

The Program’s adverse “financial impact on MOHELA,” as the Eighth Circuit held, “threatens to independently impact Missouri” by preventing or delaying

MOHELA’s contributions to “the LCD Fund.” J.A.

164. The same is true of MOHELA’s regular funding

for Missouri’s student-aid programs. By hindering

MOHELA’s contributions to the State, the Program

risks financial injury to Missouri. See Franchise Tax

Bd. of Cal. v. Alcan Aluminum Ltd., 493 U.S. 331, 336

(1990) (owners of subsidiaries “have Article III standing to challenge the taxes that their . . . subsidiaries

are required to pay” because higher taxes on the subsidiaries “threaten[ ] to cause actual financial injury”

to the owners); Hunt v. Wash. State Apple Advert.

Comm’n, 432 U.S. 333, 345 (1977) (state agency has

standing when harm to the industry that pays assessments to the agency “could reduce the amount” it receives).

The Government objects that this argument relies

on “[g]uesswork about how the plan will affect

MOHELA and how MOHELA will react.” Br. 28. Not

so. As explained, the Program jeopardizes at least half

of MOHELA’s operating revenue. See pp. 15–16, supra. Such a massive loss will reduce, delay, or stop

MOHELA’s contributions to Missouri. Indeed, MOHELA affirms that “[a]ny available funds above its

operating needs and reasonable reserves are devoted

. . . to student financial aid.” C.A. Docket Entry

Attachment at 1 (Nov. 1, 2022) (emphasis added).

Crippling MOHELA’s operating revenue will

necessarily shrink its “available funds” to contribute

to the State’s “student financial aid.” This “predictable effect” on MOHELA’s contributions to the State

goes beyond “mere speculation.” Dep’t of Com., 139 S.

Ct. at 2566.

The Government also argues that accepting this

standing theory would allow “banks [to] sue anyone

who causes financial harm to their borrowers.” Br. 27.

Yet unlike a bank’s arms-length relationship with

borrowers, Missouri created MOHELA, selects its

members, tasked it with performing essential functions for the State, and directed it to return funds to

the State. This case is thus akin to an entity challenging financial harm inflicted on a corporation that it

controls and receives money from, which satisfies Article III. See Alcan, 493 U.S. at 336. Those situations

are not comparable to a bank’s relationship with its

borrowers. Missouri is also dissimilar from a bank because of its quasi-sovereign interest in ensuring that

Missouri students and universities have adequate

funding for education. See Alfred L. Snapp & Son,

Inc. v. Puerto Rico, 458 U.S. 592, 607 (1982) (State

has “quasi-sovereign interest” in the “well-being—

both physical and economic—of its residents”).

B. The States are facing direct harm to specific tax revenues.

Nebraska, Iowa, Kansas, and South Carolina have

standing because they will suffer a “direct injury in

the form of a loss of specific tax revenues.” Wyoming

v. Oklahoma, 502 U.S. 437, 448 (1992). Those States

use federal adjusted gross income (AGI) to calculate

state taxable income. Neb. Rev. Stat. §77-2714.01(1);

Iowa Code §422.7; Kan. Stat. Ann. §79-32,117(a); S.C.

Code §12-6-40. Normally, federal AGI includes

student-loan discharge. 26 U.S.C. 61(a)(11). But the

American Rescue Plan Act of 2021 (ARPA) temporarily excludes those discharges from federal AGI until

January 1, 2026. Pub. L. No. 117-2, §9675, 135 Stat.

4 (Mar. 11, 2021) (26 U.S.C. 108(f)(5)). The Program

harms the States by immediately causing $430 billion

in non-taxable loan discharges that will reduce the

amount of future discharges for the States to tax.

The States have shown “a substantial risk that the

harm will occur.” Dep’t of Com., 139 S. Ct. at 2565 (citation omitted). Billions of dollars in student-loan

principal are set to be discharged after 2025. Some of

that will come from the Department’s Income-Driven

Repayment (IDR) plans, which cancel outstanding

principal after borrowers make payments for 20 or 25

years. See 34 C.F.R. 685.221(f). Between 2026 and

2030, 1.2 million IDR loans will cross the 20- or 25year threshold and become potentially eligible for forgiveness. U.S. Gov’t Accountability Office, Federal

Student Aid: Education Needs to Take Steps to Ensure

Eligible Loans Receive Income-Driven Repayment

Forgiveness 16 fig.3 (2022), https://perma.cc/4AAYEE5K. Those 1.2 million loans collectively amount to

billions of dollars. See id. at 10. But the Program will

erase or reduce most of those loans now, J.A. 118–19,

242–43, and thus prevent the States from taxing

them.

The direct and specific nature of this tax harm is

akin to Wyoming. There, Wyoming had standing because the challenged Oklahoma law caused “a direct

injury in the form of a loss of specific tax revenues”—

a severance tax on extracted coal. Wyoming, 502 U.S.

at 448 (emphases added). The States here similarly

present a direct harm to specific tax revenues—

income tax on student-loan discharges.

The Wyoming Court distinguished cases where

States challenge actions that allegedly injure their

“economy,” which, in turn, “cause[ ] a decline in general tax revenues.” Ibid. (emphasis added). That describes Florida v. Mellon, 273 U.S. 12, 17–18 (1927),

which the Government cites, see Br. 23. Florida speculated that a federal inheritance tax would prompt

taxpayers to take independent action—“withdraw[ing] property from the state”—which might result in

less overall property to tax. Florida, 273 U.S. at 17–

18. Such an “indirect” effect on Florida’s general tax

revenues did not establish standing. Id. at 18. Here,

however, the States challenge the loss of particular

tax revenue that the Program directly causes. The

Government is thus wrong to claim that recognizing

the States’ tax injury would give every State “standing to challenge almost any federal policy.” Br. 24. It

would give States no more standing than Wyoming

allows.

Moreover, the likelihood of the injury in this case

exceeds that of prospective economic injuries accepted

in other cases. In Clinton, federal action left groups

on “[un]equal footing with their competitors,” 524

U.S. at 427, thus “inflict[ing] a sufficient likelihood of

economic injury to establish standing,” id. at 432. And

in Association of Data Processing Service Organizations, businesses alleged that agency action allowing

new competitors “might entail some future loss of

profits.” 397 U.S. at 152. In both cases, it was unclear

whether the plaintiffs would suffer actual economic

harm. But here, the injury is near certain. Barring a

change in the law, the States will resume taxing

student-loan discharges, and the number and amount

of the taxable discharges will be less because of the

Program. Article III requires no more.

Nor is this a self-inflicted injury. Contra Br. 22–

23. Such injuries describe situations when plaintiffs

respond to defendants’ allegedly unlawful conduct by

inflicting harm on themselves. In Clapper v. Amnesty

International USA, 568 U.S. 398, 415 (2013), the

plaintiffs took “costly and burdensome measures” in

reaction to suspected government surveillance. Similarly, in Pennsylvania v. New Jersey, 426 U.S. 660,

664 (1976) (per curiam), the States’ harms were “selfinflicted” because they voluntarily incurred a cost—

tax credits to offset taxes their citizens paid to other

States—in response to other States’ actions. See also

FEC v. Cruz, 142 S. Ct. 1638, 1647 (2022) (describing

Pennsylvania as involving States’ “independent response to taxes levied”). Yet here, the legal framework

causing the States’ harm existed before the Program.

That harm is not self-inflicted.

Even if the States could respond by changing their

tax laws, that would not erase their injury. States

have a sovereign right “to create . . . a legal code.”

Alfred L. Snapp, 458 U.S. at 601. Forcing States to

exercise that power by upending their preferred system for calculating state taxable income is itself an

injury, and “the possibility that a plaintiff could avoid

[one] injury by incurring [another] does not negate

standing.” Texas v. United States, 809 F.3d 134, 156–

57 (5th Cir. 2015), aff’d by an equally divided court,

579 U.S. 547 (2016); see also Cruz, 142 S. Ct. at 1647

(finding standing even though plaintiffs “chose to subject themselves to [the challenged] provisions”). That

is why many circuits have declined to “treat[ ] the

availability of changing state law as a bar to standing.” Texas, 809 F.3d at 157; accord California v.

Azar, 911 F.3d 558, 574 (9th Cir. 2018).

C. The Program prompted broad loan consolidation causing injury to the States.

When this suit began, the Program was injuring

Arkansas, Missouri, and Nebraska by causing the

widespread consolidation of non-federally held FFEL

Loans into Direct Loans. Those three States’ injuries,

each of which is slightly different, are all cognizable.

First, Arkansas’s ASLA held $100 million in FFEL

Loans before the Program existed. J.A. 133 ¶6. In the

first 35 days after the Program was announced, consolidation eliminated $5 to $6 million of those loans.

J.A. 133 ¶7. Because ASLA’s administrative fee is

based on the amount of its FFEL Loans, the Program

has reduced ASLA’s revenue, J.A. 133 ¶8, and inflicted injury, see Hunt, 432 U.S. at 345 (“reduc[ing]

the amount of [a state agency’s] assessments” harms

the agency).

Second, MOHELA also holds FFEL Loans, which

it uses to secure bonds and provide a source of interest

income. J.A. 64–65. Diminishing those FFEL Loans

inflicts an “actual financial injury” by “reducing the

return on [MOHELA’s] investments.” Alcan, 493 U.S.

at 336.

Third, Nebraska invests tens of millions in FFELsecured SLABS. J.A. 103 ¶¶4–7. Consolidating FFEL

Loans raises repayment rates, which returns the

SLABS’s principal and ends the interest income early.

See J.A. 57 (“incentive for FFEL[ ] Loan borrowers to

consolidate” risks raising “repayment rates” and “increasing monthly distributions of principal”); J.A. 58–

59 (FFEL-backed securities are undermined when

“prepayments” of FFEL Loans increase because they

“are consolidated under the Direct Loan Program”);

J.A. 103 ¶8. This, too, is an injury in fact. Alcan, 493

U.S. at 336.

For all those consolidation-based injuries, causation is satisfied. See Dep’t of Com., 139 S. Ct. at 2565–

66. The Program caused the injuries because it explicitly advised borrowers with privately held FFEL

Loans that they could receive the Program’s benefits

“by consolidating . . . into the Direct Loan program.”

J.A. 201. Telling borrowers that they can erase up to

$20,000 of student loans through consolidation is an

irresistible incentive, as demonstrated by ASLA

losing about six percent of its FFEL Loans in just 35

days. J.A. 133 ¶¶6–7. The States’ “theory of standing

thus does not rest on mere speculation about the

decisions of third parties; it relies instead on the

[demonstrated] effect of Government action on the

decisions of third parties.” Dep’t of Com., 139 S. Ct. at

2566. The Government’s preferred precedent—Simon

v. Eastern Kentucky Welfare Rights Organization, 426

U.S. 26, 42–43 (1976)—is nothing like this case because Simon lacked evidence showing a link between

the challenged action and the harm.

The final standing factor—redressability—was

also satisfied “when the suit was filed.” Davis v. FEC,

554 U.S. 724, 734 (2008) (“[T]he standing inquiry

remains focused on . . . when the suit was filed.”).

Setting aside or enjoining the Program at that time

would have eliminated the compelling incentive to

consolidate and stopped the consolidation injuries.

The Government dismisses those consolidation

harms because of a change the Department implemented after this suit began. Br. 25. The day the

States sued but after the complaint was filed, the

Department updated its website to say that borrowers

with privately held FFEL Loans could no longer become eligible for the Program through consolidation.

J.A. 215. Though the Government says that it decided

to make this change “before the States sued,” Br. 25,

what matters is when reviewable agency action

occurred, Biden v. Texas, 142 S. Ct. 2528, 2544–45

(2022), and that happened—at the earliest—when the

website changed after suit was filed.

“It is the doctrine of mootness, not standing, that

addresses whether an intervening circumstance has

deprived the plaintiff of a personal stake in the

outcome of the lawsuit.” West Virginia v. EPA, 142 S.

Ct. 2587, 2607 (2022) (cleaned up). “[V]oluntary cessation does not moot a case unless it is absolutely clear

that the allegedly wrongful behavior could not reasonably be expected to recur.” Ibid. (cleaned up). Here,

the Secretary cannot satisfy that “heavy” burden,

ibid., because the change is an obvious attempt “to

insulate [his] decision from [judicial] review,” Knox v.

SEIU, Local 1000, 567 U.S. 298, 307 (2012), and the

Department continues to express its desire “to provide

relief to borrowers” with non-federally held FFEL

Loans, J.A. 216.

These consolidation injuries allow the States to

challenge both the Program’s initial inclusion of the

consolidation pathway and the Program’s debt discharge. These inextricably intertwined features of the

Program—both of which existed when the suit

began—cannot be separated because consolidation’s

enticement hinged on the promise of debt discharge.

Litigants have standing to challenge the various

aspects of “the one Government action that causes

their harm.” Cruz, 142 S. Ct. at 1650.

II. The Program exceeds the Secretary’s authority.

The Court should “hold unlawful and set aside” the

Program because it exceeds the Secretary’s “statutory

. . . authority.” 5 U.S.C. 706(2)(C). The major-questions doctrine applies because the Secretary’s claimed

power to cancel loan principal for virtually all borrowers is a matter of immense economic and political

significance, a novel use of a 20-year-old statute, and

a breathtaking and transformative assertion of power

beyond the Secretary’s institutional and policy expertise. This “counsels skepticism” toward the Secretary’s action, and he has failed to establish “clear”—

or even plausible—“congressional authorization” for

the Program. West Virginia, 142 S. Ct. at 2614.

A. This is a major-questions case.

Analysis of an agency’s statutory authority “must

be ‘shaped, at least in some measure, by 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 FDA v.

Brown & Williamson Tobacco Corp., 529 U.S. 120,

159 (2000)). Major-questions cases are those “in which

the history and the breadth of the authority that the

agency has asserted, and the economic and political

significance of that assertion, provide a reason to

hesitate before concluding that Congress meant to

confer such authority.” Ibid. (cleaned up).

The major-questions doctrine is a constitutionally

based clear-statement canon rooted in “both separation of powers principles and a practical understanding of legislative intent.” Id. at 2609. The Court “presume[s] that Congress intends to make major policy

decisions itself, not leave those decisions to agencies.”

Ibid. (cleaned up). And the Court exercises “common

sense as to the manner in which Congress is likely to

delegate a policy decision of . . . economic and political

magnitude.” Brown & Williamson, 529 U.S. at 133.

Clear-statement rules “ensure Congress does not,

by broad or general language, legislate on a sensitive

topic inadvertently or without due deliberation.”

Spector v. Norwegian Cruise Line Ltd., 545 U.S. 119,

139 (2005) (plurality opinion). They “operate[ ] as a

vital check on expansive and aggressive assertions of

executive authority.” U.S. Telecom Ass’n v. FCC, 855

F.3d 381, 417 (D.C. Cir. 2017) (Kavanaugh, J., dissenting from denial of rehearing en banc).

1. The key major-questions factors are

present here.

As the Government conceded below, see D. Ct. Doc.

27, at 41, the claimed authority to cancel loan principal for virtually all borrowers is a matter of great

“economic and political significance.” West Virginia,

142 S. Ct. at 2608. This one use of that power erases

$430 billion owed to the Government, see CBO Letter,

supra, at 3, and costs taxpayers more than a halftrillion dollars over ten years, J.A. 108. See Ala. Ass’n

of Realtors, 141 S. Ct. at 2489 (applying the doctrine

when the economic effect was $50 billion). To put that

in perspective, a 2007 House Report projected that the

Public Service Loan Forgiveness program and forgiveness for borrowers working in areas of national need

would collectively cost $2.6 billion over ten years. H.R.

Rep. No. 110-210, at 69–72 (2007); see College Cost

Reduction and Access Act, Pub. L. No. 110-84, §401,

121 Stat. 784 (Sep. 27, 2007) (20 U.S.C. 1087e(m));

Higher Education Opportunity Act, Pub. L. No. 110315, §430, 122 Stat. 3078 (Aug. 14, 2008) (20 U.S.C.

1078-11). The Program dwarfs that by orders of magnitude. A half-trillion-dollar agency action is no

“everyday exercise of federal power.” NFIB, 142 S. Ct.

at 665 (citation omitted).

The political significance is likewise undeniable.

Student-loan cancellation is a matter of “earnest and

profound debate.” Gonzales v. Oregon, 546 U.S. 243,

267 (2006). The issue is “regularly in the top five

issues in the correspondence that the White House

receive[s] from Americans each week.” Stratford &

Daniels, supra. The President has also acknowledged

the political importance by calling on Congress to cancel student debt. Nova, supra. Yet Congress has

“conspicuously and repeatedly declined to enact” student-loan discharge bills, West Virginia, 142 S. Ct. at

2610, including one COVID-relief bill that would have

canceled $10,000 for certain borrowers, e.g., H.R.

2034, 117th Cong. (2021); H.R. 6800, 116th Cong.

§150117(h) (2020); S. 2235, 116th Cong. (2019). Instead, Congress chose in the CARES Act to grant

limited forgiveness by canceling Direct Loans only

“for a recipient” who “withdraws” from school “as a

result of” COVID-19. Pub. L. No. 116-136, §3508(c).

Now, the Department is “attempting to work around

the legislative process to resolve for itself a question

of great political significance.” West Virginia, 142 S.

Ct. at 2621 (Gorsuch, J., concurring) (cleaned up).

Through the Secretary’s broad reading of the

HEROES Act, he claims “a breathtaking amount of

authority.” Ala. Ass’n of Realtors, 141 S. Ct. at 2489.

He asserts power to cancel student debt, of any

amount, for any borrower, originating from any kind

of federal student loan (Direct, FFEL, or Perkins),

even a decade after a war, military operation, or

national emergency begins. See J.A. 293; 20 U.S.C.

1098bb(a)(1) (applying to “any” loan program under

“title IV” of the HEA). Under his view, the Secretary

could erase all $1.6 trillion in outstanding loans,

including those held by non-federal entities, if he

thinks it warranted after the exigencies of an emergency have subsided. Courts rightly greet such assertions of “extravagant statutory power” with skepticism. West Virginia, 142 S. Ct. at 2609.

While the Government says that the HEROES Act

“applies only in a limited set of circumstances,” Br. 50,

any “national emergency declared by the President”

triggers it, 20 U.S.C. 1098ee(4). Presidents routinely

declare such emergencies over all sorts of matters.

E.g., 84 Fed. Reg. 4,949, 4,949 (Feb. 15, 2019) (“national emergency . . . at the southern border”); 74 Fed.

Reg. 55,439, 55,439 (Oct. 23, 2009) (“H1N1 influenza

pandemic”). So if future Presidents announce national emergencies about any far-reaching issue—such as

climate change, inflation, gun control, or general

economic conditions, cf. 86 Fed. Reg. 7,037, 7,037

(Jan. 20, 2021) (directing action “to confront the

climate crisis”), the Secretary could erase hundreds of

billions of dollars more in loans.

This broad assertion of power is also “unheralded.”

West Virginia, 142 S. Ct. at 2610. Until now, the

Secretary has not “relied on the HEROES Act” during

its 20-year history for the “mass cancellation . . . of

student loan principal balances.” Rubinstein Memo,

supra, at 6. The Congressional Research Service

agrees that “[c]ategorical cancellation . . . reflects a

use of [the Secretary’s] HEROES Act authority that is

unlike past invocations.” Cong. Rsch. Serv., Statutory

Basis for Biden Administration Student Loan Forgiveness 1 (Sep. 13, 2022). Even the current administration’s Office of Legal Counsel (OLC) suggests that

“the direct cancellation of the principal balances of

student loans would be a new application of the

statute.” Office of Legal Counsel, U.S. Dep’t of Justice,

Use of the Heroes Act of 2003 to Cancel the Principal

Amounts of Student Loans, 2022 WL 3975075, at *12

(Aug. 23, 2022) (OLC Op.). “It is telling” that the Sec-

retary “has never before adopted” a new loan-forgiveness program under the HEROES Act. NFIB, 142 S.

Ct. at 666.

The Government denies that the Secretary asserts

novel authority, citing the COVID-19 payment pause

as a comparator. Br. 51. But the legality of that action

presents “unresolved questions regarding the Secretary’s authority,” Cong. Rsch. Serv., The Biden

Administration Extends the Pause on Federal Student

Loan Payments 2–4 (Jan. 27, 2021), “never addressed

by a court,” West Virginia, 142 S. Ct. at 2610. Regardless, the payment pause is no analogue. It never discharged loan principal; its purpose and direct effect

were to maintain borrower status quo; it originated

during extreme exigencies at the outset of the pandemic; it cost a fraction of the Program; and Congress

has at least partially approved it through the CARES

Act, see Pub. L. No. 116-136, §3513. Even if the Government could identify instances where the pause’s

indirect effect reduces a borrower’s total payments

over the life of a loan, “there is an obvious difference”

between directly erasing loan principal and an action

“that may end up causing an incidental” reduction in

total payments. West Virginia, 142 S. Ct. at 2613 n.4.

The Program is not “just business as usual.” Ibid.

This novel power is also a “transformative expansion” of the Secretary’s authority. Util. Air Regul.

Grp. v. EPA, 573 U.S. 302, 324 (2014) (UARG). Prior

uses of the Act maintained borrower status quo, 85

Fed. Reg. at 79,863, relaxed various paperwork and

documentation requirements, 68 Fed. Reg. at 69,314–

18, provided short extensions of borrower notice re-

quirements, id. at 69,315, and waived specific eligibility requirements for existing loan-forgiveness programs, id. at 69,317. The power exercised here is different in kind. The Secretary is no longer just administering loan-forgiveness programs; he is creating

them. And he is not merely preserving the status quo

for borrowers but elevating them far beyond their preemergency position.

The Secretary’s broad cancellation authority likewise moves the Department outside its legitimate institutional role and “policy expertise.” West Virginia,

142 S. Ct. at 2612. The agency is not equipped to “balanc[e] the many vital considerations of national policy

implicated” when establishing a half-trillion-dollar

loan-forgiveness program, including its impact on the

national debt and funding levels for other federal programs. Ibid. That balancing is a task for Congress.

Additionally, this invocation of the HEROES Act required the Secretary to speculate that COVID-19 is

the main cause of the nation’s “current economic

conditions.” J.A. 235–39 (capitalization omitted). Yet

the Department has “no comparative expertise” in

macroeconomics or the causes of national economic

trends. West Virginia, 142 S. Ct. at 2613 (quoting

Kisor v. Wilkie, 139 S. Ct. 2400, 2417 (2019)). By

proffering a justification based on such analysis, the

Secretary assumed a role beyond what Congress could

have intended.

The Secretary’s asserted cancellation authority is

also “ ‘incompatible’ with ‘the substance of Congress’

regulatory scheme.’ ” UARG, 573 U.S. at 322 (quoting

Brown & Williamson, 529 U.S. at 156). The HEA

establishes specific classes of borrowers eligible for

loan discharge and narrow circumstances when discharge is permitted. The Secretary’s reading of the

HEROES Act overrides those choices by authorizing

him to craft new loan-cancellation programs whenever the President declares a national emergency—

and even after he says the emergency is over. In

addition, the HEA’s “negotiated rulemaking” requirements recognize that Congress generally values

notice, comment, and collaboration when the Department regulates on matters of student financial assistance. 20 U.S.C. 1098a(b)(2). It is implausible that

Congress authorized the Secretary to engage in one of

the Department’s most costly actions ever—a halftrillion-dollar loan-cancellation program—without

any rulemaking procedures. Id. 1098bb(b)(1).

2. The Government’s efforts to avoid the

major-questions doctrine lack merit.

The Government dismisses the major-questions

doctrine because this case involves “a government

benefit program.” Br. 48. But as discussed, the doctrine rests on “separation of powers principles and a

practical understanding of legislative intent” that

“presume[s] . . . Congress intends to make major

policy decisions itself.” West Virginia, 142 S. Ct. at

2609. Those principles apply regardless of whether an

agency is regulating private actors or administering a

congressionally created benefit program. In both

contexts, “an agency literally has no power to act . . .

unless and until Congress confers power upon it.” La.

Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 374 (1986).

So what matters is not whether the agency is regulating private parties or administering benefits, but

whether it is exercising the type of power that courts

would expect Congress to clearly delegate.

Unlike the Government’s narrow view, the Court

has recognized that major-questions cases “arise[ ]

from all corners of the administrative state.” West

Virginia, 142 S. Ct. at 2608. Notably, King v. Burwell,

576 U.S. 473, 485–86 (2015), applied the doctrine to a

government-benefit program—a federal tax-credit

program under the Affordable Care Act—because

those tax credits “involv[ed] billions of dollars in

spending each year,” “affect[ed] . . . millions of

people,” and presented a question of deep “economic

and political significance.” For the same reasons, the

doctrine applies here.

The Government next argues that extending benefits to citizens does not “encroach[ ] into the lives of

individuals and the affairs of entities.” Br. 49 (quotation mark omitted). Yet the Secretary’s asserted cancellation power—which applies to any loan under title

IV of the HEA—reaches beyond Department-held

loans. Accordingly, that claim of authority infringes

the rights of those who hold and invest in nonfederally held loans, those who service any federal

student loans, and countless others “involved in

student financial assistance programs.” 20 U.S.C.

1098a(a)(1). More broadly, many federal benefit programs—including grants to college students, SNAP

food benefits, and social security—affect the daily

lives of tens of millions of people. It is baseless to

suggest that the major-questions doctrine plays no

role in those contexts.

The Government also argues that the ARPA provision making “student-loan discharges . . . tax-free”

until 2025 “anticipated” that the Secretary would use

the HEROES Act to cancel debt. Br. 52–53 (discussing

Pub. L. No. 117-2, §9675). It did no such thing. Wholly

apart from the HEROES Act, existing IDR programs—and other congressionally created loanforgiveness programs—guarantee the ongoing discharge of student-loan debt under that ARPA

provision. See pp. 23–24, supra. Thus, ARPA says

nothing about what Congress thinks of the HEROES

Act. Even if it did, “the views of one Congress as to the

construction of a statute adopted many years before

by another Congress have very little, if any, significance.” United States v. Sw. Cable Co., 392 U.S. 157,

170 (1968) (cleaned up).

Finally, the Government’s reliance on Biden v.

Missouri, 142 S. Ct. 647, 652–53 (2022) (per curiam),

which affirmed CMS’s COVID-19 vaccine mandate, is

misplaced. Because CMS’s “longstanding practice” is

to impose infection-control measures, and because

vaccine requirements are “a common feature” of the

healthcare industry, the Court held that the vaccine

mandate was a “straightforward and predictable” use

of CMS’s power. Ibid. But using the HEROES Act to

cancel loan principal has never been the Secretary’s

practice. Nor is it straightforward or predictable to

invoke a statute designed to keep borrowers from a

“worse position,” 20 U.S.C. 1098bb(a)(2)(A), and use it

to put them in a decidedly better position by canceling

their debt.

B. The Secretary lacks colorable—let alone

clear—congressional authorization.

The major-questions rule requires the Secretary to

demonstrate “clear congressional authorization” for

the Program. West Virginia, 142 S. Ct. at 2609. A

“plausible” or “colorable textual basis” will not do.

Ibid. The HEROES Act fails to provide even plausible

support for the Program.

The Act permits the Secretary to (1) “waive or

modify any statutory or regulatory provision applicable to the student financial assistance programs”

when (2) “necessary in connection with a . . . national

emergency” and (3) “necessary to ensure that recipients of student financial assistance . . . who are

affected individuals are not placed in a worse position

financially in relation to that financial assistance

because of their status as affected individuals.” 20

U.S.C. 1098bb(a)(1)–(2)(A). This text does not authorize the Program for four reasons. First, keeping

borrowers from a “worse position” does not permit the

mass discharge of loan principal because that puts

those borrowers in a better position. Second, the

Program does not “waive or modify” the “statutory or

regulatory provision[s]” the Secretary invokes. Third,

the Secretary provides only a tenuous and pretextual

“connection” to a “national emergency.” Fourth, the

Program’s broad scope vastly exceeds the Secretary’s

power.

1. Keeping borrowers from a “worse position” does not permit the mass discharge of loan principal.

The HEROES Act permits action “necessary to

ensure” that affected individuals “are not placed in a

worse position financially in relation to [their]

financial assistance.” 20 U.S.C. 1098bb(a)(2)(A). The

Secretary may do that through measures that main-

tain the status quo. These include delaying commencement of loan repayment, 68 Fed. Reg. at 69,315–16,

pausing “collection on defaulted loans,” id. at 69,316,

easing requirements for or restrictions on temporary

deferment and forbearance options, id. at 69,316–17,

and pausing ongoing payment obligations, 85 Fed.

Reg. at 79,863. The Program goes much further. It

creates a new loan-discharge program for nearly all

borrowers that places them in a far better position by

eliminating or reducing their loan principal. That

exceeds the statutory authorization.

The other statutory bases for invoking the HEROES Act confirm this. See Ala. Ass’n of Realtors, 141

S. Ct. at 2488 (construing the meaning of one sentence

by consulting the powers in the next sentence);

UARG, 573 U.S. at 320 (“words of a statute must be

read in their context”). Besides keeping borrowers

from a “worse position,” the Act permits actions that

(1) “minimize[ ]” “administrative requirements” on

or unreasonable.” 20 U.S.C. 1098bb(a)(2)(B)–(E).

That the “worse position” provision is set among such

modest goals demonstrates that Congress did not give

the Secretary power to cancel loan principal en masse.

Plus, the Government’s broad reading of the “worse

position” clause would render superfluous some of the

others, see Mackey v. Lanier Collection Agency &

Serv., Inc., 486 U.S. 825, 837 (1988) (canon against

surplusage), particularly the provision allowing adjustments to “administrative requirements” to avoid

“defaults,” 20 U.S.C. 1098bb(a)(2)(B).

Most telling is the provision allowing affected individuals who withdraw from school to keep a grant

“overpayment.” Id. 1098bb(a)(2)(D). This limited congressional authorization for specific students (withdrawing students) to retain certain aid otherwise

owed to the Department (grant overpayments)

strongly suggests that this is the only situation where

the HEROES Act authorizes the Secretary to excuse

the repayment of funds owed. “It would be anomalous

for Congress to have so painstakingly described the

[Secretary’s] limited authority” to excuse the return

of funds owed, “but to have given him, just by

implication, authority to declare” over 40 million borrowers exempt from paying $430 billion owed to the

Government. Gonzales, 546 U.S. at 262.

Even the OLC opinion that attempts to justify the

Program illustrates why it exceeds the Secretary’s

authority. The opinion says that the Secretary must

“put loan recipients back into the financial position

they would be in were it not for the national emergency.” OLC Op., 2022 WL 3975075, at *14. The Program does not do that. The Department estimated

that for 20 million borrowers, the Program will wipe

away all their loan balances. J.A. 242–43. And the

“median debt” for another 23 million will “fall[ ] from

$29,400 to $13,600.” J.A. 243. That does not maintain

or restore the status quo ante. It’s a windfall.

The Government says the Program does not place

borrowers in a “better position” because “reducing

the[ir] principal” will “reduc[e] their monthly

payments” and those lower monthly payments might

“ameliorate the ‘risk that delinquency and default

rates will rise above pre-pandemic levels.’ ” Br. 43

(quoting J.A. 242). That blinks reality. Borrowers

whose principal balances decrease by up to $20,000

are in a much better position. The Secretary has other

tools, such as payment pauses and repayment extensions, to address his concerns over delinquency and

default. Canceling principal for nearly all borrowers

is not one of the available options.

The Government’s multistep argument—that it is

(1) erasing principal (2) to reduce monthly payments

(3) to decrease delinquency and default—further

establishes that the Secretary’s actions are unprecedented. Past uses of the HEROES Act have directly

prevented borrowers from being placed in a “worse

position financially in relation to [their] financial

assistance.” 20 U.S.C. 1098bb(a)(2)(A). Pausing payments and interest accrual ensures that principal balances do not increase because of interest capitalization. 85 Fed. Reg. at 79,863. And waiving consecutivework requirements for existing loan-cancellation programs guarantees that borrowers do not lose their

place in those programs. 68 Fed. Reg. at 69,317. But

erasing principal to reduce monthly payments in

hopes that some of the tens of millions of eligible borrowers with remaining balances might not default “relates . . . far more indirectly” to protecting borrowers’

loan status. Ala. Ass’n of Realtors, 141 S. Ct. at 2488.

Such a “downstream connection . . . is markedly different” than what the Secretary has done in the past,

ibid., and thus confirms that he is exceeding his authority.

The Government also claims that the agency has

“substantial discretion” because the Secretary need

only “deem” his action “necessary” or show it “may be

necessary” to achieve the statutory goal. Br. 36–37.

Alabama Association of Realtors is instructive on this

point. The statute there similarly authorized the relevant official to take actions that “in his judgment are

necessary” or “in his judgment may be necessary.”

Ala. Ass’n of Realtors, 141 S. Ct. at 2487; see Deem,

Black’s Law Dictionary (11th ed. 2019) (“deem” means

to “judge”). Despite that text, the Court did not defer

to the CDC but rather invalidated its eviction moratorium because it exceeded the agency’s authority.

Ala. Ass’n of Realtors, 141 S. Ct. at 2488–89. The

Court should do the same here because the mass discharge of debt for virtually all borrowers—like the

eviction moratorium—is not the kind of power Congress bestowed.

Nor does Webster v. Doe, 486 U.S. 592, 600 (1988),

see Br. 36–37, help the Government. The statute in

Webster empowered the CIA Director to terminate

employees when he “deem[s] such termination necessary or advisable in the interests of the United

States.” 486 U.S. at 594 (emphasis added). That

language “exudes deference” to an agency, id. at 600,

in a way that “deems necessary” does not.

The Government further contends that “there is

nothing surprising” about this use of the HEROES

Act because the Secretary has recently used his “compromise” authority in 20 U.S.C. 1082(a)(6) for a handful of targeted class-wide loan discharges benefitting

attendees of certain corrupt schools. Br. 54–55. But

the Department elsewhere admits that it has historically used this Section 1082(a)(6) “authority to compromise student loan debts on an individualized, caseby-case basis.” Sweet, supra, D. Ct. Doc. 337, at 2.

Though that compromise authority was part of the

original HEA in 1965, see Pub. L. No. 89-329,

§432(a)(6), the Department did not use it for group

discharges until 2019—long after the HEROES Act

was adopted—and the handful of class-wide discharges under that provision have benefitted only attendees of specific schools, Sweet, supra, D. Ct. Doc. 337,

at 2. This recent and targeted group-discharge

practice under a different statute says nothing about

the HEROES Act. If anything, the absence of

Secretary-imposed class-wide discharges when the

HEROES Act passed confirms that Congress did not

contemplate anything like the Program.

The Government repeatedly says that the Secretary needs to discharge loans if he hopes to “quickly”

assist borrowers during a national emergency. Br. 6,

39, 44, 55. But the word “quickly” does not describe an

agency announcing a loan-cancellation program twoand-a-half years after an emergency began. If acting

swiftly is the purpose, the Secretary has other tools at

his disposal, as past uses of the Act illustrate. Debt

cancellation must await congressional action.

2. The Program does not waive or modify

the cited statutory and regulatory

provisions.

The Act authorizes the Secretary to “waive or modify any statutory or regulatory provision.” 20 U.S.C.

1098bb(a)(1). The Program does not stay within those

parameters.

The four sets of provisions cited in the Secretary’s

HEROES Act notice, see 87 Fed. Reg. at 61,514, address the discharge or cancellation of different types of

federal loans:

First, 20 U.S.C. 1087 and 34 C.F.R. 682.402 direct

the Secretary to discharge FFEL Loans when students die or are disabled, 20 U.S.C. 1087(a), borrowers file for certain bankruptcy relief, id. 1087(b),

school closures keep students from completing programs, id. 1087(c), schools falsely certify borrower eligibility, ibid., or schools fail to refund loan proceeds

owed to students, ibid.

Second, 20 U.S.C. 1087dd(g) orders the Secretary

to cancel Direct Loans when school closures prevent

borrowers from completing their programs.

Third, 34 C.F.R. 685.212 outlines other situations

when the Secretary discharges Direct Loans, including for the reasons listed in 20 U.S.C. 1087 and

various types of public service.

Fourth, 34 C.F.R. part 674, subpart D addresses

the circumstances in which Perkins Loans are cancelled. Those reasons include death or disability, 34

C.F.R. 674.61, service in law enforcement, correctional facilities, or the military, id. 674.57, 674.59, and

work as a teacher, id. 674.53, 674.55.

The Secretary claimed to “modif[y]” those provisions by announcing a new cancellation program. 87

Fed. Reg. at 61,514. But “modify” “means to change

moderately or in a minor fashion.” MCI Telecomms.

Corp. v. AT&T, 512 U.S. 218, 225 (1994) (citing

dictionaries); accord Modify, Black’s Law Dictionary

(11th ed. 2019) (“to make small changes”). Rewriting

statutes and regulations to add a new cancellation

program—with unique eligibility requirements and

discharge amounts—“is effectively the introduction of

a whole new regime” of loan cancellation. MCI, 512

U.S. at 234. It exceeds what the word “modify” permits.

The Secretary’s HEROES Act notice does not purport to “waive” those provisions. See 87 Fed. Reg. at

61,514. That makes sense because “waiving” a provision refers to an “agency’s discretionary decision to refrain from enforcing an existing statutory requirement.” Waiver, Black’s Law Dictionary (11th ed.

2019). To illustrate, the Secretary has “waiv[ed] the

requirements” that “periods of service” for loan forgiveness “be uninterrupted and/or consecutive, if the

reason for the interruption” is a national emergency.

68 Fed. Reg. at 69,317. The Program looks nothing

like that. The Secretary is not excusing compliance

with an eligibility requirement in existing loandischarge provisions. Rather, he is crafting a new cancellation program.

On the Government’s telling, the Secretary appropriately “eliminate[d] or reduce[d] the requirements . . . that establish . . . discharge eligibility.” Br.

38. But in fact, he ignored those requirements, preferring instead to construct a new discharge program.

Because that is neither a waiver nor a modification,

the HEROES Act does not allow it.

In essence, the Secretary is trying to waive or

modify the amount of debt itself. Congress knows how

to give the Secretary power to “waive the amounts

that students” owe. 20 U.S.C. 1091b(b)(2)(D)–(E). But

the HEROES Act does not use that language. Rather,

the Act authorizes the Secretary to “waive” or “modify” a “statutory or regulatory provision.” Because the

Secretary did not comply with those requirements, he

exceeded his authority.

3. The Program rests on a tenuous and

pretextual connection to a national

emergency.

The Act requires a direct connection to a national

emergency. It does so by demanding, first, that the

Secretary’s action be “necessary in connection with a

. . . national emergency,” 20 U.S.C. 1098bb(a)(1), and

second, that borrowers face “a worse position financially in relation to [their] financial assistance because of” the emergency, id. 1098bb(a)(2)(A) (emphasis added). The Program—which the Department was

implementing when the President declared the emergency over—does not satisfy those requirements.

The Secretary justifies the Program mainly by

citing “current economic conditions.” J.A. 235–39

(capitalization omitted). But those conditions are not

solely—or even primarily—attributable to COVID-19.

They are influenced by myriad factors, including

global demand for products, geopolitical events,

federal legislation, and Federal Reserve policies. See

McCausland, What Is Causing Inflation? Economists

Point Fingers at Different Culprits, NBC (Feb. 16,

2022), https://perma.cc/35VP-YBJQ. Even the Secretary admits that the cause of these economic conditions includes “other factors (such as Russia’s invasion of Ukraine).” J.A. 238. The Secretary’s “indiscriminate approach” to economic conditions—reminiscent of OSHA’s invalid vaccine-or-test mandate—

“fails to account for [the] crucial distinction” between

economic risk from COVID-19 and economic “risk

more generally.” NFIB, 142 S. Ct. at 666.

The Secretary also says that the Program is needed because the payment pause is ending. J.A. 234–35.

If the Secretary means that stopping payment pauses

inherently prompts more defaults, then the Department—not COVID-19—caused the problem. Or if the

Secretary thinks that resuming payments is concerning only because broader economic conditions are

challenging, the end of the payment pause adds little

to the analysis. Either way, the link between the

Program and the pandemic is tenuous.

It is no surprise that the Program’s connection to

COVID-19 is weak. That rationale was a pretext for

the President to fulfill his campaign promise once

Congress declined his request to forgive student debt.

The evidence of pretext is compelling: the President

has long supported student-loan forgiveness, Biden,

Medium, supra; the Secretary did not consider any

relief options other than loan discharge, see pp. 50–

51, infra; and the Program, which reaches all borrowers with incomes outside the top five percent of

households, is not tailored to individuals financially

harmed by the pandemic, see pp. 49–50, infra.

Make no mistake, the President is trying to address what he views as systemic failings in federal

student-loan programs. In the administration’s press

briefing, officials complained that college costs have

“nearly tripled” in 40 years and that student loans

often impose a “lifelong burden” keeping borrowers

from “a middle-class life.” J.A. 117–18. Material that

the Secretary cites, see J.A. 236 n.4, 241 n.19, con-

firms that “chronic repayment struggles are not primarily the result of pandemic-related transitory financial shocks but are more systemic in nature.”

Akana & Ritter, Expectations of Student Loan Repayment, Forbearance, and Cancellation, Fed. Reserve

Bank of Phila. 2 (2022), https://perma.cc/P5FA-ZSEN

(emphasis added). Any perceived student-loans problem is thus not a COVID-19 crisis, and agencies

cannot issue decrees directed at one concern under

the guise of addressing a different emergency. If the

Department succeeds here, “declarations of emergencies [will] never end,” and “our Constitution’s separation of powers . . . [will] amount to little.” NFIB, 142

S. Ct. at 670 (Gorsuch, J., concurring).

4. The Program’s broad scope exceeds the

Secretary’s authority.

The Program’s vast scope also exceeds the Secretary’s authority. For starters, the Secretary has not

limited the Program to “affected individuals.” 20

U.S.C. 1098bb(a)(2)(A). Even if affected individuals

include every borrower in the country under the

theory that all States have been “declared a disaster

area,” id. 1098ee(2)(C), the agency records never explain why the Program includes borrowers overseas.

Contrary to what the Government says, nowhere did

the Secretary “ ‘determine[ ]’ that . . . borrowers living

and working abroad . . . have suffered ‘direct economic

hardship’ due to the pandemic.” Br. 35 (quoting 20

U.S.C. 1098ee(2)(D)).

Nor has the Department targeted “affected individuals” at risk of facing “a worse position financially in

relation to” their loans “because of” COVID-19. 20

U.S.C. 1098bb(a)(2)(A). Many eligible borrowers—

such as those whose earnings have increased substantially since the pandemic’s onset—face no such

peril. Even the Secretary’s unpublished, self-reported

data show that most borrowers earning any income

whatsoever do not “expect to experience difficulty

repaying loans.” J.A. 247–48 & fig.3. When the Secretary’s own evidence says the Program is unnecessary for most eligible borrowers, he has gone too far.

The Government argues that the phrase “may be

necessary to ensure,” 20 U.S.C. 1098bb(a)(2), permits

the Secretary to craft an “overinclusi[ve]” policy. Br.

43–44. Yet broad overinclusiveness cannot be squared

with the word “necessary.” In this context, “necessary” must at least mean “important.” Ayestas v.

Davis, 138 S. Ct. 1080, 1093 (2018). This requires the

Secretary to show that the Program is important to

ensure included borrowers do not experience delinquency or default because of COVID-19. But including

all borrowers except the top five percent of earners,

regardless of how the pandemic affected them financially, does not come close to satisfying that standard.

III. The Program is arbitrary and capricious.

The Program is also “arbitrary” and “capricious”

and should be “set aside” for five reasons. 5 U.S.C.

706(2)(A).

First, the Secretary did not consider any alternatives to the Program. “[W]hen an agency rescinds a

prior policy its reasoned analysis must consider the

alternatives that are within the ambit of the existing

policy.” DHS v. Regents of the Univ. of Cal., 140 S. Ct.

1891, 1913 (2020) (cleaned up). The Secretary determined that he should decrease borrowers’ monthly

payments to limit delinquencies and defaults. J.A.

240–44. But he jumped right to debt discharge and

did not evaluate any other option—such as extending

repayment periods—that would minimize the risk of

delinquency and default or reduce borrowers’ monthly

payments. That failure “renders [the] decision arbitrary and capricious.” Regents, 140 S. Ct. at 1913.

The Government insists that the Secretary did

“consider[ ] . . . the availability of ‘other options to reduce monthly payments.’ ” Br. 58–59. But he did not

consider what he might do to reduce monthly payments; rather, the Rationale Memo simply observed

that “borrowers have other options to reduce monthly

payments, like income-driven repayment (IDR)

plans.” J.A. 241 (emphasis added). Nor did the Secretary determine that “loan discharges would reduce

delinquency and default risks beyond what could be

accomplished through efforts to increase enrollment

in IDR.” Br. 60 (cleaned up). The Rationale Memo

never compared loan discharge against other options.

The Government’s post hac assertion that it considered alternatives “is not a substitute” for actually

considering them. Getty v. Fed. Sav. & Loan Ins.

Corp., 805 F.2d 1050, 1055 (D.C. Cir. 1986).

Second, because the Department was “not writing

on a blank slate, it was required to assess whether

there were reliance interests, determine whether they

were significant, and weigh any such interests

against competing policy concerns.” Regents, 140 S.

Ct. at 1915 (cleaned up). Nothing in the agency materials suggests the Department considered a single reliance interest.

The Government accepts that it ignored the

States’ reliance interests but asserts that those interests are not “cognizable” or “serious.” Br. 60. Yet the

HEA itself recognizes the vital interests of the “groups

involved in student financial assistance programs,”

including the States’ roles as “lenders,” secondarymarket participants, and “loan servicers.” 20 U.S.C.

1098a(a)(1). Tens of billions of dollars pass through

the federal student-loan industry each year. Weissman, An Extremely Important Statistic about Student

Debt That Has Never Been Published, Slate (Mar. 24,

2021), https://perma.cc/XRJ7-5QVL. It is specious to

suggest that the interests of those industry participants are not serious. Besides, contesting “the strength of [the] reliance interests” does not excuse the

agency’s failure to consider them “in the first instance.” Regents, 140 S. Ct. at 1913–14.

Third, the Secretary “failed to consider [other] important aspect[s] of the problem.” Motor Vehicle Mfrs.

Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co.,

463 U.S. 29, 43 (1983). In particular, he did not assess

the costs of the Program or mention the Department’s

general duty to recover on debt owed. See 31 U.S.C.

3711(a)(1). By focusing exclusively on the interest of

borrowers, he showed no concern for any countervailing considerations.

Fourth, the Secretary failed to “reasonably explain[ ]” his arbitrary distinction between borrowers

who applied to consolidate non-federally held FFEL

Loans before September 29 and those who did not.

State Farm, 463 U.S. at 52. Although the Government

never attempts to explain this, it was apparently an

attempt to avoid legal challenges to the Program. See

Stratford, supra. Evading judicial review is not a

“factor[ ]” Congress “intended [the Secretary] to

consider.” State Farm, 463 U.S. at 43.

Fifth, for all the reasons discussed above, see pp.

47–49, supra, the Secretary’s reliance on COVID-19

as justification for the Program is “pretextual,” and

thus his action is unlawful. Dep’t of Com., 139 S. Ct.

at 2573–76.

CONCLUSION

The Court should affirm the Eighth Circuit’s injunction and reverse the district court’s judgment.

Respectfully submitted,

ANDREW BAILEY

MICHAEL T. HILGERS

MICHAEL E. TALENT

JAMES A. CAMPBELL

Deputy Solicitor General

Solicitor General

Counsel of Record

Attorney General of

Missouri

MISSOURI ATTORNEY

GENERAL’S OFFICE

Post Office Box 899

Jefferson City, MO 65102

(314) 340-4869

michael.talent@ago.mo.gov

Attorney General of

Nebraska

CHRISTIAN EDMONDS

Assistant Solicitor

General

OFFICE OF THE NEBRASKA

ATTORNEY GENERAL

2115 State Capitol

Lincoln, NE 68509

(402) 471-2682

jim.campbell@nebraska.gov

TIM GRIFFIN

Attorney General of

Arkansas

NICHOLAS J. BRONNI

Solicitor General

DYLAN L. JACOBS

Deputy Solicitor General

OFFICE OF THE ARKANSAS

ATTORNEY GENERAL

323 Center Street, Suite

200

Little Rock, AR 72201

(501) 682-2007

dylan.jacobs@arkansasag.gov

BRENNA BIRD

Attorney General of Iowa

SAMUEL P. LANGHOLZ

Deputy Attorney General

OFFICE OF THE IOWA

ATTORNEY GENERAL

1305 E. Walnut Street

Des Moines, Iowa 50319

(515) 281-5164

sam.langholz@ag.iowa.gov

KRIS KOBACH

ALAN WILSON

DWIGHT CARSWELL

J. EMORY SMITH, JR.

OFFICE OF THE KANSAS

ATTORNEY GENERAL

120 SW 10th Avenue,

2nd Floor

Topeka, KS 66612

(785) 296-2215

OFFICE OF THE ATTORNEY

GENERAL OF SOUTH

CAROLINA

Post Office Box 11549

Columbia, SC 29211

803-734-3680

Attorney General of

Kansas

Deputy Solicitor General

dwight.carswell@ag.ks.gov

JANUARY 2023

Attorney General of

South Carolina

Deputy Solicitor General

ESmith@scag.gov

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.