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

Supreme Court briefFeb 1, 2023

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Nos. 22-506, 22-535

IN THE

Supreme Court of the United States

_________________________________________________

JOSEPH R. BIDEN, PRESIDENT OF THE UNITED STATES,

ET AL.,

Petitioners,

NEBRASKA, ET AL.,

Respondents.

____________________________________________________________________________________________________

DEPARTMENT OF EDUCATION, ET AL.,

Petitioners,

MYRA BROWN, ET AL.,

Respondents.

____________________________________________________________________________________________________

On Writs of Certiorari Before Judgment

to the United States Courts of Appeals

for the Eighth and Fifth Circuits

____________________________________________________________________________________________________

BRIEF OF AMICI CURIAE

AMERICANS FOR PROSPERITY FOUNDATION AND

ADVANCING AMERICAN FREEDOM

IN SUPPORT OF RESPONDENTS

————

Michael Pepson

J. Marc Wheat

Counsel of Record

General Counsel

Casey Mattox

ADVANCING AMERICAN

Cynthia Fleming Crawford FREEDOM, INC.

AMERICANS FOR PROSPERITY 801 Pennsylvania Avenue, N.W.,

FOUNDATION

Suite 930

1310 N. Courthouse Road, Washington, D.C. 20004

Ste. 700

(202) 780-4848

Arlington, VA 22201

MWheat@advancingamericanfreedom.com

(571) 329-4529

mpepson@afphq.org

Counsel for Amici Curiae

February 1, 2023

TABLE OF CONTENTS

Table of Authorities ..................................................... iii

Interest of Amici Curiae ............................................... 1

Summary of Argument ................................................. 3

Argument ....................................................................... 4

The Department Must Respect the

Separation of Powers ................................... 4

II.

The Department Has Usurped Congress’s

Exclusive Legislative Power ....................... 9

A. The Major Questions Threshold Inquiry ...... 9

B. The Department’s Mass Student Debt

Cancellation Triggers the Major Questions

Doctrine ......................................................... 10

1. The Department Attempted to Decide

Matters of Great Political Importance .... 10

2. The Mass Student Debt Cancellation Has

Vast Economic Significance ...................... 14

C. The Department’s Blanket Loan Forgiveness

Scheme Fails the Major Questions Doctrine’s

Clear Statement Requirement .................... 17

1. The HEROES Act’s Place in the Overall

Statutory Scheme ....................................... 18

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

Debt Cancellation....................................... 21

3. The Department’s Past Interpretations of

the HEROES Act ........................................ 23

4. Mismatch Between the Mass Student Debt

Cancellation and the Department of

Education’s

Congressionally

Assigned

Mission ........................................................ 25

III.

This Court Should Take Great Care to

Explain to the Public Why the Mass Debt

Cancellation Was Unconstitutional ......... 26

Conclusion..……………………………………………...28

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Ala. Ass’n of Realtors v. HHS,

141 S. Ct. 2485 (2021) .................................. 14, 26

Chevron v. NRDC,

467 U.S. 837 (1984) ...............................................2

Cmty. Fin. Servs. Ass’n of Am. v. Consumer Fin. Prot.

Bureau,

51 F.4th 616 (5th Cir. 2022) ...............................25

Collins v. Yellen Doe,

141 S. Ct. 1761 (2021) .........................................27

Comm. on the Judiciary v. McGahn,

415 F. Supp. 3d 148 (D.D.C. 2019) ..................3, 4

Doe v. Mills,

142 S. Ct. 17 (2021) .............................................23

Federal Election Comm’n v. Cruz,

142 S. Ct. 1638 (2022) ...........................................4

Food & Drug Admin. v. Brown & Williamson

Tobacco Corp.,

529 U.S. 120 (2000) .............................. 5, 6, 17, 21

FTC v. Bunte Brothers, Inc.,

312 U.S. 349 (1941) .............................................23

Gonzales v. Oregon,

546 U.S. 243 (2006) ...............................................9

Gundy v. United States,

139 S. Ct. 2116 (2019) ...........................................6

H. J. Inc. v. Nw. Bell Tel. Co.,

492 U.S. 229 (1989) .............................................22

ICC v. Cincinnati, N. O. & T. P. R. Co.,

167 U.S. 479 (1897) ...............................................7

King v. Burwell,

576 U.S. 473 (2015) .............................................26

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

476 U.S. 355 (1986) ...........................................4, 5

MCI Tele. Corp. v. American Telephone & Telegraph

Co.,

512 U.S. 218 (1994) ...................................... 18, 19

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

142 S. Ct. 661 (2022) .................... 6, 7, 8, 9, 14, 26

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

29 F.3d 655 (D.C. Cir. 1994) .................................5

Spector v. Norwegian Cruise Line Ltd.,

545 U.S. 119 (2005) .............................................20

Terry v. United States,

141 S. Ct. 1858 (2021) .........................................19

Tiger Lily, LLC v. HUD,

5 F.4th 666 (6th Cir. 2021) ............................ 9, 11

United States v. Zubaydah,

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

United States Telecom Assn. v. FCC,

855 F. 3d 381 (D.C. Cir. 2017)................. 5, 10, 14

Util. Air Regulatory Grp. v. EPA,

573 U.S. 302 (2014) .................................. 6, 17, 18

Wayman v. Southard,

23 U.S. (10 Wheat.) 1 (1825) ................................8

West Virginia v. EPA,

142 S. Ct. 2587 (2022)…4, 5, 6, 7, 8, 9, 10, 12, 14,

17, 18, 19, 20, 21, 23, 24

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

531 U.S. 457 (2001) ........................................ 7, 20

Constitution

U.S. Const. Art. I, § 1 .................................. 3, 7, 8, 24

U.S. Const. Art. I, § 9, cl. 7 ........................... 7, 24, 25

Statutes

11 U.S.C. § 523(a)(8) .................................................18

20 U.S.C. § 1087 ........................................................18

20 U.S.C. § 1087e(f) ..................................................19

20 U.S.C. § 1087e(h) .................................................19

20 U.S.C. § 1087e(m)(2)............................................19

20 U.S.C. § 1098aa(b) ...............................................22

20 U.S.C. § 1098aa(b)(5)...........................................22

20 U.S.C. § 1098aa(b)(6)...........................................22

20 U.S.C. § 1098bb(a)(1)...........................................19

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

20 U.S.C. § 1098cc ....................................................19

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

20 U.S.C. § 1098ee(4) ...............................................24

Higher Education Act, 20 U.S.C. 1001 et seq. .........4

Higher Education Relief Opportunities for Students

Act of 2003,

Pub. L. No. 108-76,

117 Stat. 904 (2003)

(codified at 20 U.S.C. §§ 1098aa–1098ee) .........19

Rules

Sup. Ct. Rule 37.3 .......................................................1

Federal Register

68 Fed. Reg. 69,312 (Dec. 12, 2003) ........................24

vii

77 Fed. Reg. 59,311 (Sept. 27, 2012) .......................24

82 Fed. Reg. 45,465 (Sept. 29, 2017) .......................24

87 Fed. Reg. 61,512 (Oct. 12, 2022) .........................19

Other Authorities

147 Cong. Rec. H7155 (Oct. 23, 2001) .....................22

147 Cong. Rec. S13311 (Dec. 14, 2001) ...................22

149 Cong. Rec. H2553-54 (Apr. 1, 2003) .................23

149 Cong. Rec. S10866 (July 31, 2003) ...................22

Annie Nova, Biden Will Call on Congress to Forgive

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

(Jan. 8, 2021),

https://www.cnbc.com/2021/01/08/student-loanforgiveness-could-be-more-likely-but-challengesremain-.html ........................................................13

Brett M. Kavanaugh,

Our Anchor for 225 Years and Counting: The

Enduring Significance of the Precise Text of the

Constitution,

89 Notre Dame L. Rev. 1907 (2014) ..................27

Br. of the U.S. House of Representatives,

Trump v. Sierra Club,

No. 19A60 (U.S., filed July 19, 2019) ................25

viii

Christopher H. Schroeder, Asst. Attorney General,

U.S. Dept. of Justice, Office of Legal Counsel, Use

of the HEROES Act of 2003 to Cancel the

Principal Amounts of Student Loans, Mem. Op.

for the General Counsel, Dept. of Education, 46

Op. O.L.C. ___, Slip Op. (Aug. 23, 2022) .... 15, 22

Committee for a Responsible Federal Budget, Debt

Cancellation is Too Costly,

CBO Confirms (Sept. 26, 2022),

https://www.crfb.org/press-releases/debtcancellation-too-costly-cbo-confirms ..................16

Committee for a Responsible Federal Budget, New

Student Debt Changes Will Cost Half a Trillion

Dollars (Aug. 24, 2022),

https://www.crfb.org/blogs/new-student-debtchanges-will-cost-half-trillion-dollars ...............16

Committee for a Responsible Federal Budget,

Student Debt Cancellation is Not Financially

Justified (Oct. 11, 2022),

https://www.crfb.org/blogs/student-debtcancellation-not-financially-justified .................20

Congressional Research Service, Federal Student

Loan Forgiveness and Loan Repayment Programs

(Nov. 20, 2018) .....................................................19

Congressional Research Service, Statutory Basis for

Biden Administration Student Loan Forgiveness

(Sept. 13, 2022) ................................. 20, 21, 23, 24

David Lerman, Cardona Defends Student Loan Plan

as One-Time Covid-19 Remedy: Education

Secretary’s Appearance is Part of Push to Sell

Democratic Policies Ahead of Midterms, Roll Call

(Sept. 7, 2022) ......................................................11

Debt Cancellation Accountability Act of 2022,

S. 4483 (117th Cong.) ..........................................12

E. Gellhorn & P. Verkuil,

Controlling Chevron-Based Delegations,

20 Cardozo L. Rev. 989 (1999) .........................4, 5

Fact Sheet: President Biden Announces Student

Loan Relief for Borrowers Who Need It Most

(Aug. 24, 2022).............................................. 13, 14

FACT SHEET: The Biden-Harris Administration’s

Plan for Student Debt Relief Could Benefit Tens

of Millions of Borrowers in All Fifty States, White

House (Sept. 20, 2022) ........................................15

Fairness for Responsible Borrowers Act,

H.R. 8496 (117th Cong.) .....................................13

Federalist No. 47 (Madison) ......................................4

Federalist No. 48 (Madison) ....................................25

Frontline Healthcare Worker Student Loan

Assistance Act of 2020,

H.R.8393 (116th Cong.) ......................................12

Income-Driven Student Loan Forgiveness Act,

H.R. 2034 (117th Cong.) .....................................12

Joint Consolidation Loan Separation Act, S. 1098

(117th Cong.) .......................................................12

Letter from Phillip Swagel, Director, Congressional

Budget Office, to Congress (Sept. 26, 2022),

https://www.cbo.gov/system/files/2022-09/58494Student-Loans.pdf ........................................ 15, 16

Michael Stratford and Eugene Daniels, How Biden

Finally Got to ‘Yes’ on Canceling Student Debt

(Aug. 25, 2022),

https://www.politico.com/news/2022/08/25/bidencanceling-student-debt-00053826 ............... 11, 13

National Taxpayers Union Foundation, Cost of

Student Debt Cancelation Could Average $2,000

Per Taxpayer (Aug. 23, 2022),

https://www.ntu.org/foundation/detail/cost-ofstudent-debt-cancelation-could-average-2000-pertaxpayer ...............................................................16

Neil Gorsuch et al.,

A Republic, If You Can Keep It (2019) ...............27

Press Release, Transcript of Pelosi Weekly Press

Conference Today (July 28, 2021),

https://web.archive.org/web/20210728234206/http

s://www.speaker.gov/newsroom/72821-2 ...........13

S. Dudley, Milestones in the Evolution of the

Administrative State (Nov. 2020) ........................7

Second Chance at Public Service Loan Forgiveness

Act, S. 4581 (117th Cong.) ..................................12

Sen. Chuck Grassley & Sen. Rob Portman, Biden’s

Student Loan Debt Transfer Is An Abuse of

Executive Power, Washington Examiner (Sept. 8,

2022),

https://www.washingtonexaminer.com/restoringamerica/fairness-justice/bidens-student-loan-debttransfer-is-an-abuse-of-executive-power ...........12

Strengthening and Improving Public Service Loan

Forgiveness Act of 2022,

H.R. 8330 (117th Cong.) .....................................12

Student Loan Debt Relief Act of 2019,

H.R. S. 2235 (116th Cong.) .................................12

Student Loan Debt Relief Act of 2019,

H.R. 3887 (116th Cong.) .....................................12

Student Loan Accountability Act,

H.R. 8102 (117th Cong.) .....................................13

Student Loan Accountability Act,

S. 4253 (117th Cong.) ..........................................13

Student Loan Relief Act,

H.R. 8514 (116th Cong.) .....................................12

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

H.R. 2142, H.R. 3508, H.R. 3539, H.R. 5809, H.R.

7698, S. 1098 (Oct. 11, 2022),

https://www.whitehouse.gov/briefingroom/legislation/2022/10/11/bills-signed-h-r-91-hr-92-h-r-2142-h-r-3508-h-r-3539-h-r-5809-h-r7698-s-1098/ .........................................................12

xii

University of Pennsylvania Wharton School of

Business, Forgiving Student Loans: Budgetary

Costs and Distributional Impact (August 23,

2022),

https://budgetmodel.wharton.upenn.edu/issues/20

22/8/23/forgiving-student-loans .........................16

University of Pennsylvania Wharton School of

Business, The Biden Student Loan Forgiveness

Plan: Budgetary Costs and Distributional Impact

(Aug. 26, 2022),

https://budgetmodel.wharton.upenn.edu/issues/20

22/8/26/biden-student-loan-forgiveness ............17

U.S. Dept. of Ed., About ED,

https://www2.ed.gov/about/landing.jhtml .........25

U.S. Dept. of Ed., Biden-Harris Administration

Continues Fight for Student Debt Relief for

Millions of Borrowers, Extends Student Loan

Repayment Pause (Nov. 22, 2022) .............. 15, 16

William Galston, Do Americans Support President

Biden’s Student Loan Plan?,

Brookings (Sept. 6, 2022),

https://www.brookings.edu/blog/fixgov/2022/09/06/

do-americans-support-president-bidens-studentloan-plan/ .............................................................11

BRIEF OF AMICI CURIAE

IN SUPPORT OF RESPONDENTS

Under Supreme

respectfully submit

Respondents.1

Court Rule 37.3, amici

this brief in support of

INTEREST OF AMICUS CURIAE

Americans for Prosperity Foundation (“AFPF”) is

a 501(c)(3) nonprofit organization committed to

educating and training Americans to be courageous

advocates for the ideas, principles, and policies of a

free and open society. Some of those key ideas include

the separation of powers and constitutionally limited

government. As part of this mission, AFPF appears as

amicus curiae before state and federal courts.

AFPF has a particular interest in this case because

of the critical separation of powers issues that

underlie it, which present a familiar question: which

branch of government is responsible for making law

and how? It is not this Court’s role to set public policy.

Nor is it the job of unelected federal bureaucrats or

the Executive acting alone. Instead, the Constitution

tasks the democratically elected, politically

accountable branches—Congress and the President—

with resolving important policy questions through the

1 No counsel for a party authored this brief in whole or in part

and no person other than amici made any monetary

contributions intended to fund the preparation or submission of

this brief.

deliberately arduous processes of bicameralism and

presentment.

More broadly, AFPF recognizes that the

encroachment of the Executive on Congress’s Article I

powers here will, if allowed to stand, have

implications far beyond the facts of this case. The

current Administration and future Administrations of

either party might be encouraged to sidestep the

People’s elected representatives in Congress. And the

same Executive power claimed here might be used to

suspend or modify tax enforcement, alter other loan

obligations, or otherwise arrogate to the President

Congress’s power of the purse. AFPF writes here to

urge this Court to protect our constitutional Republic

and system of representative self-government against

this danger by enforcing the Constitution’s separation

of powers and rejecting Petitioners’ unconstitutional

overreach.

Advancing American Freedom (AAF) is a nonprofit

organization that promotes and defends policies that

elevate traditional American values, including the

uniquely American idea that all men are created

equal and endowed by their Creator with unalienable

rights to life, liberty, and the pursuit of happiness.

This case is important to AAF because it presents to

this Court the opportunity to overrule Chevron v.

NRDC, 467 U.S. 837 (1984), which for too long has

permitted the confusion of powers of the several

branches of the Federal government. The genius of

the Constitution is its structure, dividing power

against itself into three coequal branches and thereby

protecting the liberties of its citizens from usurpers of

delegated and limited governmental power.

SUMMARY OF ARGUMENT

The wisdom and fairness of granting blanket

student loan cancellation to tens of millions of

borrowers at a cost of hundreds of billions of dollars is

not before the Court. Instead, this case is about whom

the Constitution empowers to make that decision—

one of vast political and economic importance—and by

what process. At the federal level, the answer is

Congress, through duly enacted legislation, subject to

constitutional constraints on federal power.

Our system of government relies on the consent of

the governed, memorialized in the Constitution. Our

Constitution exclusively tasks the People’s elected

representatives with answering major policy

questions through legislation that survives

bicameralism and presentment, a deliberately

difficult process designed to ensure such laws reflect

broad political consensus.

Toward this end, the Constitution flatly prohibits

Congress from delegating legislative power to other

entities: “All legislative Powers herein granted shall

be vested in a Congress of the United States[.]” U.S.

Const. Art. I, § 1 (emphasis added). “The Constitution

did not create a President in the King’s image but

envisioned an executive regularly checked and

balanced by other authorities.” United States v.

Zubaydah, 142 S. Ct. 959, 992 (2022) (Gorsuch, J.,

joined by Sotomayor, J., dissenting). Indeed, “it is a

core tenet of this Nation’s founding that the powers of

a monarch must be split between the branches of the

government to prevent tyranny.” Comm. on the

Judiciary v. McGahn, 415 F. Supp. 3d 148, 154

(D.D.C. 2019) (Jackson, J.); see Federalist No. 47

(Madison). And a fortiori unelected people are not

allowed to make law in this country through

administrative edict, as the Department sought to do

here. For “the Constitution does not authorize

agencies to use pen-and-phone regulations as

substitutes for laws passed by the people’s

representatives.” West Virginia v. EPA, 142 S. Ct.

2587, 2626 (2022) (Gorsuch, J., concurring).

The Department’s sweeping assertion of power to

unilaterally rewrite the Higher Education Act

(“HEA”), 20 U.S.C. 1001 et seq.—based on the

President’s dubious claim of a “national emergency”—

flies in the face of these basic principles. It is not only

unconstitutional but profoundly antidemocratic.

For these reasons, this Court should reject

Petitioners’ efforts to revive the unconstitutional

mass debt cancellation.

ARGUMENT

THE DEPARTMENT MUST

SEPARATION OF POWERS.

RESPECT

THE

The Department is a creature of statute, which

possesses only those powers Congress chooses to

confer upon it. See Federal Election Comm’n v. Cruz,

142 S. Ct. 1638, 1649 (2022); La. Pub. Serv. Com v.

Fed. Commc’ns Comm’n, 476 U.S. 355, 374 (1986).

After all, “[a]gencies have only those powers given to

them by Congress, and ‘enabling legislation’ is

generally not an ‘open book to which the agency [may]

add pages and change the plot line.’” West Virginia v.

EPA, 142 S. Ct. at 2609 (quoting E. Gellhorn & P.

Verkuil, Controlling Chevron-Based Delegations, 20

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

Department bears the affirmative burden to establish

statutory authorization for its actions. West Virginia

v. EPA, 142 S. Ct. at 2609 (“We presume that

‘Congress intends to make major policy decisions

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

United States Telecom Assn. v. FCC, 855 F. 3d 381,

419 (D.C. Cir. 2017) (Kavanaugh, J., dissenting from

denial of rehearing en banc)); La. Pub. Serv. Com, 476

U.S. at 374. And “[r]egardless of how serious the

problem an administrative agency seeks to address, .

. . it may not exercise its authority in a manner that

is inconsistent with the administrative structure that

Congress enacted into law.” Food & Drug Admin. v.

Brown & Williamson Tobacco Corp., 529 U.S. 120, 125

(2000) (cleaned up). Congress need not expressly

negate an agency’s claimed powers; “[w]ere courts to

presume a delegation of power absent an express

withholding of such power, agencies would enjoy

virtually limitless hegemony, a result plainly out of

keeping with . . . the Constitution[.]” Ry. Labor

Executives’ Assn’s v. Nat’l Mediation Bd., 29 F.3d 655,

671 (D.C. Cir. 1994) (en banc).

As this Court reaffirmed just last year, under the

major questions doctrine, “cases in which the ‘history

and the breadth of the authority that [the agency] has

asserted,’ and the ‘economic and political significance’

of that assertion, provide a ‘reason to hesitate before

concluding that Congress’ meant to confer such

authority.”2 West Virginia v. EPA, 142 S. Ct. at 2608

(quoting Brown & Williamson, 529 U.S. at 159–60). In

those cases, “both separation of powers principles and

a practical understanding of legislative intent make

[courts] ‘reluctant to read into ambiguous statutory

text’ the delegation claimed to be lurking there. . . .

[S]omething more than a merely plausible textual

basis for the agency action is necessary. The agency

instead must point to ‘clear congressional

authorization’ for the power it claims.” Id. at 2609

(quoting Util. Air Regulatory Grp. v. EPA, 573 U.S.

302, 324 (2014)).

The major questions doctrine “refers to an

identifiable body of law that has developed over a

series of significant cases all addressing a particular

and recurring problem: agencies asserting highly

consequential power beyond what Congress could

reasonably be understood to have granted.” 3 West

2 As here, “[a]t stake” in these cases are “basic questions about

self-government, equality, fair notice, federalism, and the

separation of powers.” West Virginia v. EPA, 142 S. Ct. at 2620

(Gorsuch, J., concurring).

3 The major questions doctrine appears to have emerged in the

wake of the judicially created “intelligible principle” regime as an

alternative to enforcing Article I’s Vesting Clause. See Gundy v.

United States, 139 S. Ct. 2116, 2141 (2019) (Gorsuch, J.,

dissenting) (“When one legal doctrine becomes unavailable to do

its intended work, the hydraulic pressures of our constitutional

system sometimes shift the responsibility to different

doctrines.”); see also Nat’l Fed’n of Indep. Bus. v. DOL, OSHA,

142 S. Ct. 661, 669 (2022) (Gorsuch, J., concurring) (“Whichever

the doctrine, the point is the same.”). But “the Constitution does

Virginia v. EPA, 142 S. Ct. at 2609. “If administrative

agencies seek to regulate the daily lives and liberties

of millions of Americans, the doctrine says, they must

at least be able to trace that power to a clear grant of

authority from Congress.” NFIB v. OSHA, 142 S. Ct.

at 668 (Gorsuch, J., concurring).

“Like many parallel clear-statement rules in our

law, this one operates to protect foundational

constitutional guarantees.”4 West Virginia v. EPA,

142 S. Ct. at 2616 (Gorsuch, J., concurring).

not speak of ‘intelligible principles.’ Rather, it speaks in much

simpler terms: ‘All legislative Powers herein granted shall be

vested in a Congress.’” Whitman v. Am. Trucking Ass’ns, 531 U.S.

457, 487 (2001) (Thomas, J., concurring) (citations omitted). If

this Court were to jettison the extraconstitutional “intelligible

principle” test, instead returning to the Constitution’s original

public meaning and rigorously enforcing Article I’s bar against

Congress delegating its legislative power to other entities, see

U.S. Const. Art. I, § 1; see also U.S. Const. Art. I, § 9, cl. 7, the

major questions doctrine may well have less of a role to play in

guarding against violations of Article I’s Vesting Clause and

other separation of powers violations. This Court should do so.

4 “Some version of this clear-statement rule can be traced to at

least 1897, when this Court confronted a case involving the

Interstate Commerce Commission, the federal government’s

‘first modern regulatory agency.’” West Virginia v. EPA, 142 S.

Ct. at 2619 (Gorsuch, J., concurring) (quoting S. Dudley,

Milestones in the Evolution of the Administrative State, 3 (Nov.

2020)). In that case this Court rejected the ICC’s claimed

legislative power to set tariff rates for common carriers—“a

power of supreme delicacy and importance”—reasoning that “if

Congress had intended to grant such a power . . . it cannot be

doubted that it would have used language open to no

misconstruction, but clear and direct.” ICC v. Cincinnati, N.O. &

T.P.R. Co., 167 U.S. 479, 505 (1897).

Specifically, it “protect[s] the Constitution’s

separation of powers.” Id. at 2617 (Gorsuch, J.,

concurring). It does this by “guarding against

unintentional, oblique, or otherwise unlikely

delegations of the legislative power,” NFIB v. OSHA,

142 S. Ct. at 669 (Gorsuch, J., concurring), the

Constitution exclusively vests in Congress alone, see

West Virginia v. EPA, 142 S. Ct. at 2619 (Gorsuch, J.,

concurring) (“Much as constitutional rules about

retroactive legislation and sovereign immunity have

their corollary clear-statement rules, Article I’s

Vesting Clause has its own: the major questions

doctrine.”); see also U.S. Const. Art. I, § 1. Cf.

Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 42–43

(1825). This doctrine “is vital because the framers

believed that a republic—a thing of the people—would

be more likely to enact just laws than a regime

administered by a ruling class of largely

unaccountable ‘ministers.’” West Virginia v. EPA, 142

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

omitted).

Application of these principles to the Department’s

mass student loan cancellation confirms that it is

plainly ultra vires; indeed, “a complete usurpation of

congressional

authorization

implicating

the

separation of powers required by the Constitution.” 5

J.A. 295.

5 If it were otherwise, the statute would violate Article I’s bar

against delegation of Congress’s legislative power. See J.A. 296.

Cf. NFIB v. OSHA, 142 S. Ct. at 669 (Gorsuch, J., concurring)

II.

THE DEPARTMENT HAS USURPED CONGRESS’S

EXCLUSIVE LEGISLATIVE POWER.

A. The Major Questions Threshold Inquiry.

Whether an agency action implicates the major

questions doctrine is a threshold inquiry. See, e.g.,

West Virginia v. EPA, 142 S. Ct. at 2607–10; see id. at

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

have usually applied the doctrine as a clear-statement

rule, and the Court today confirms that is the proper

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

concurring) (noting “antecedent question whether the

agency’s challenged action implicates a major

question.”).

As Justice Gorsuch observed, this Court’s “cases

supply a good deal of guidance about when an agency

action involves a major question for which clear

congressional authority is required.” Id. at 2620

(Gorsuch, J., concurring). As particularly relevant

here, the “Court has indicated that the doctrine

applies when an agency claims the power to resolve a

matter of great ‘political significance’ or end an

‘earnest and profound debate across the country.’” Id.

(Gorsuch, J., concurring) (quoting NFIB v. OSHA, 142

S. Ct. at 665 (internal quotation marks omitted);

Gonzales v. Oregon, 546 U.S. 243, 267 (2006)). It “has

[also] said that an agency must point to clear

congressional authorization when it seeks to regulate

(“[I]f the statutory subsection the agency cites really did endow

OSHA with the power it asserts, that law would likely constitute

an unconstitutional delegation of legislative authority.”); Tiger

Lily, LLC v. HUD, 5 F.4th 666, 672 (6th Cir. 2021).

a significant portion of the American economy or

require billions of dollars in spending by private

persons or entities.” Id. at 2621 (Gorsuch, J.,

concurring) (cleaned up).

B. The Department’s Mass Student Debt

Cancellation

Triggers

the

Major

Questions Doctrine.

Here, everything about the Department’s mass

student debt forgiveness program implicates the

major questions doctrine, as demonstrated by “the

amount of money involved for regulated and affected

parties, the overall impact on the economy, the

number of people affected, and the degree of

congressional and public attention to the issue.”6 See

United States Telecomms. Ass’n, 855 F.3d at 422–23

(Kavanaugh, J., dissenting from denial of rehearing

en banc) (listing generally relevant factors to major

question inquiry); see also J.A. 291 (“[B]ecause the . . .

[mass debt cancellation] is an agency action of vast

economic and political significance, the majorquestions doctrine applies.”).

1. The Department Attempted to Decide

Matters of Great Political Importance.

To begin with, student loan debt—and what, if

anything, to do about it—is an issue of great political

significance and the subject of a robust national

6 Petitioners appear to agree that this is a case of economic and

political significance. See J.A. 290 & n.18.

debate.7 See, e.g., Michael Stratford and Eugene

Daniels, How Biden Finally Got to ‘Yes’ on Canceling

Student Debt, Politico (Aug. 25, 2022) (reporting

“[s]tudent loans were regularly in the top five issues

in the correspondence that the White House received

from Americans each week”)8; see also David Lerman,

Cardona Defends Student Loan Plan as One-Time

Covid-19 Remedy: Education Secretary’s Appearance

is Part of Push to Sell Democratic Policies Ahead of

Midterms, Roll Call (Sept. 7, 2022).9 Indeed, according

to Brookings as of early September, “[t]wo thirds [of

voters] say that student loan debt is a serious

problem[.] . . . The two [then-]most recent polls . . . put

support” for the President’s mass debt cancellation

“among registered voters at 51 percent and 52

percent[.]” William Galston, Do Americans Support

President Biden’s Student Loan Plan?, Brookings

(Sept. 6, 2022).10

Student loan debt is plainly of great interest to

Congress. See Letter from 94 Members of Congress to

Speaker Pelosi, 1 (Aug. 26, 2022) (explaining the

President’s

“student

loan

giveaway

7 Cf. Tiger Lily, 5 F.4th at 675 (Thapar, J., concurring) (“As is

often true, there are two sides to today’s story. . . . While

landlords and tenants likely disagree on much, there is one thing

both deserve: for their problems to be resolved by their elected

representatives.”).

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

9 https://rollcall.com/2022/09/07/cardona-defends-student-loanplan-as-one-time-covid-19-remedy/

10 https://www.brookings.edu/blog/fixgov/2022/09/06/doamericans-support-president-bidens-student-loan-plan

unconstitutional and illegal”)11; Sen. Chuck Grassley

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

Transfer Is An Abuse of Executive Power, Washington

Examiner (Sept. 8, 2022).12 Tellingly, “Congress has

considered and rejected bills authorizing something

akin to the agency’s proposed course of action.” West

Virginia v. EPA, 142 S. Ct. at 2621 (Gorsuch, J.,

concurring) (cleaned up); see, e.g., Student Loan Debt

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

Relief Act, H.R. 8514 (116th Cong.); Frontline

Healthcare Worker Student Loan Assistance Act,

H.R. 8393 (116th Cong.); Student Loan Debt Relief

Act of 2019, H.R. 3887 (116th Cong.). Indeed, at the

time of the Department’s mass debt cancellation

Congress was then considering legislation relating to

student loan forgiveness.13 See, e.g., Income-Driven

Student Loan Forgiveness Act, H.R. 2034 (117th

Cong.); Second Chance at Public Service Loan

Forgiveness Act, S. 4581 (117th Cong.); Strengthening

and Improving Public Service Loan Forgiveness Act of

2022, H.R. 8330 (117th Cong.); Debt Cancellation

Accountability Act of 2022, S. 4483 (117th Cong.);

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

f9f772e10000

12 https://www.washingtonexaminer.com/restoringamerica/fairness-justice/bidens-student-loan-debt-transfer-isan-abuse-of-executive-power

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

law the Joint Consolidation Loan Separation Act, S. 1098 (117th

Cong.). See The White House, Bills Signed: H.R. 91, H.R. 92, H.R.

2142, H.R. 3508, H.R. 3539, H.R. 5809, H.R. 7698, S. 1098 (Oct.

11,

2022),

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

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

Cong.); Student Loan Accountability Act, S. 4253

(117th Cong.); Fairness for Responsible Borrowers

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

This is unsurprising given that no statute

authorizes the Executive to cancel student debt en

masse. Until recently, this fact was uncontroversial.

Even the then-Speaker of the House, who supports

student loan cancelation, acknowledged as much:

“People think that the President of the United States

has the power for debt forgiveness. He does not. . . .

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

of Congress.” Press Release, Transcript of Pelosi

Weekly Press Conference Today (July 28, 2021).14 The

President also “entered the presidency deeply

skeptical of the idea of writing off large chunks of

student loan debt. He questioned publicly whether he

had the authority to do it[.]”15 Accordingly, the

President asked Congress to pass legislation forgiving

$10,000 in student debt for all borrowers.16

It was only after Congress declined to pass the

legislation he wanted that the President changed his

tune, specifically directing the Department to

unilaterally pursue mass student loan cancellation.

See Fact Sheet: President Biden Announces Student

14https://web.archive.org/web/20210728234206/https://www.spe

aker.gov/newsroom/72821-2

15 Stratford & Daniels, supra.

See Annie Nova, Biden Will Call on Congress to Forgive

$10,000 in Student Debt for All Borrowers, CNBC (Jan. 8, 2021),

https://www.cnbc.com/2021/01/08/student-loan-forgivenesscould-be-more-likely-but-challenges-remain-.html.

Loan Relief for Borrowers Who Need It Most (Aug. 24,

2022). “The President’s intervention only underscores

the enormous significance of” these issues. United

States Telecomms. Ass’n, 855 F.3d at 424 (Kavanaugh,

J., dissenting from denial of rehearing en banc); see

West Virginia v. EPA, 142 S. Ct. at 2622 (Gorsuch, J.,

concurring).

This holds particularly true given the curious

timing of the President’s actions: the cusp of the

midterm elections, an occasion for candidates to seek

public support for their preferred policy solutions in

advance of the next Congress. This further shows that

the President is (again) “attempting to work [a]round

the legislative process to resolve for [himself] . . . a

question of great political significance,” another

telltale sign of a major question. West Virginia v. EPA,

142 S. Ct. at 2621 (Gorsuch, J., concurring) (cleaned

up); see, e.g., NFIB v. OSHA, 142 S. Ct. 661 (per

curiam) (rejecting unlawful OSHA vaccine mandate);

Ala. Ass’n of Realtors v. HHS, 141 S. Ct. 2485 (2021)

(per curiam) (rejecting unlawful CDC eviction

moratorium).

2. The Mass Student Debt Cancellation Has

Vast Economic Significance.

In addition, mass student debt cancellation is

plainly of vast economic significance. See also J.A. 161

(“Whatever the eventual outcome of this case, it will

affect the finances of millions of Americans with

student loan debt as well as those Americans who pay

taxes to finance the government and indeed everyone

who is affected by such far reaching fiscal decisions.”).

To put this in perspective, OLC itself found that “[a]s

of the end of the second quarter of 2022, about 43.0

million borrowers had loans under the three federal

student loan programs, and their debts collectively

amounted

approximately

$1.62

trillion.”

Christopher H. Schroeder, Asst. Attorney General,

U.S. Dept. of Justice, Office of Legal Counsel, Use of

the HEROES Act of 2003 to Cancel the Principal

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

Counsel, Dept. of Education, 46 Op. O.L.C. ___, Slip

Op. at 2 (Aug. 23, 2022) (“OLC Memo”) (citation

omitted)17; accord Letter from Phillip Swagel,

Director, Congressional Budget Office, to Congress, 3

(Sept.

26,

2022)

(“CBO

Letter”),

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

Biden-Harris Administration’s Plan for Student Debt

Relief Could Benefit Tens of Millions of Borrowers in

All Fifty States, White House (Sept. 20, 2022) (“The

Biden-Harris Administration expects that over 40

million borrowers are eligible for its student debt

relief plan, and nearly 20 million borrowers could see

their entire remaining balance discharged.”). 18

In terms of cost, “CBO estimates that the cost of

student loans will increase by about an additional

17 Oddly, given West Virginia v. EPA’s obvious relevance to this

case, the OLC Memo—issued August 23, 2022—does not cite or

mention it, even though that decision was released almost two

months earlier on June 30, 2022.

18 According to the Department, as of November 22, 2022, “over

26 million people have provided the Department with the

necessary information to be considered for debt relief, and 16

million borrowers have been approved.” U.S. Dept. of Ed., Biden-

$400 billion in present value as a result of the

action[.]” CBO Letter at 1.19 According to the National

Taxpayers Union Foundation, this could cost, on

average, $2,000 per taxpayer.20 The Committee for a

Responsible Federal Budget previously estimated

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

between $440 billion and $600 billion over the next

ten years[.]”21 And a Wharton analysis found that

“depending on future details of the actual IDR

program and concomitant behavioral changes, the

Harris Administration Continues Fight for Student Debt Relief

for Millions of Borrowers, Extends Student Loan Repayment

Pause (Nov. 22, 2022).

19 The University of Pennsylvania Wharton School of Business

“estimate[d] that a one-time maximum debt forgiveness of

$10,000 per borrower will cost around $300 billion for borrowers

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

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

https://budgetmodel.wharton.upenn.edu/issues/2022/8/23/forgivi

ng-student-loans.

20 NTUF, Cost of Student Debt Cancelation Could Average $2,000

Per

Taxpayer

(Aug.

23,

2022),

https://www.ntu.org/foundation/detail/cost-of-student-debtcancelation-could-average-2000-per-taxpayer.

21 CRFB, New Student Debt Changes Will Cost Half a Trillion

Dollars (Aug. 24, 2022), https://www.crfb.org/blogs/new-studentdebt-changes-will-cost-half-trillion-dollars; see also CRFB, Debt

Cancellation is Too Costly, CBO Confirms (Sept. 24, 2022),

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

IDR program could add another $450 billion or more,

thereby raising total plan costs to over $1 trillion.” 22

C. The

Department’s

Blanket

Loan

Forgiveness Scheme Fails the Major

Questions Doctrine’s Clear Statement

Requirement.

Against this backdrop, the Executive’s “claim to

extravagant statutory power over the national

economy” should be greeted skeptically. Util. Air

Regulatory Grp., 573 U.S. at 324. And where, as here,

the major questions doctrine applies, “a colorable

textual basis” is not enough to justify the agency’s

assertion of power. See West Virginia v. EPA, 142 S.

Ct. at 2609. Instead, “[a]t this point, the question

becomes what qualifies as a clear congressional

statement authorizing an agency’s action.” Id. at 2622

(Gorsuch, J., concurring). “First, courts must look to

the legislative provisions on which the agency seeks

to rely ‘with a view to their place in the overall

statutory scheme.’” Id. (Gorsuch, J., concurring)

(quoting Brown & Williamson, 529 U.S. at 133).

“Second, courts may examine the age and focus of the

statute the agency invokes in relation to the problem

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

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

past interpretations of the relevant statute.” Id.

(Gorsuch, J., concurring). “Fourth, skepticism may be

merited when there is a mismatch between an

22 The Biden Student Loan Forgiveness Plan: Budgetary Costs

and

Distributional

Impact

(Aug.

26,

2022),

https://budgetmodel.wharton.upenn.edu/issues/2022/8/26/bidenstudent-loan-forgiveness.

agency’s challenged action and its congressionally

assigned mission and expertise.” Id. (Gorsuch, J.,

concurring). The Department’s mass student loan

cancellation independently fails all four of these tests.

See also J.A. 294 (concluding “the Department lacks

‘clear congressional authorization’ for the Program

under the HEROES Act”).

1. The HEROES Act’s Place in the Overall

Statutory Scheme.

Congress does not “typically use oblique or

elliptical language to empower an agency to make a

‘radical or fundamental change’ to a statutory

scheme.” West Virginia v. EPA, 142 S. Ct. at 2609

(quoting MCI Tele. Corp. v. American Telephone &

Telegraph Co., 512 U.S. 218, 229 (1994)). If Congress

wanted to grant the Department unfettered (and

unconstitutional) legislative power to mass cancel

student debt, it would have clearly said so. See Util.

Air Regulatory Grp., 134 S. Ct. at 2444. It did not,

instead saying the opposite.

The student loan statutory structure Congress has

enacted makes clear that Congress generally expects

borrowers to pay back their federally funded loans.

For example, as a general matter, student loans are

not dischargeable in bankruptcy. See 11 U.S.C. §

523(a)(8). And when Congress has wanted to

authorize student loan relief, it has done so explicitly

through targeted statutes narrowly authorizing relief

to discreet subsets of borrowers under limited

circumstances. See, e.g., 20 U.S.C. §§ 1087 (repayment

by the Secretary of loans of bankrupt, deceased, or

disabled borrowers; treatment of borrowers attending

schools that fail to provide a refund, attending closed

schools, or falsely certified as eligible to borrow),

1087e(f) (deferment), 1087e(h) (borrower defenses),

1087e(m)(2) (loan cancellation amount), 1098cc

(tuition refunds or credits for members of Armed

Forces). See generally Congressional Research

Service, Federal Student Loan Forgiveness and Loan

Repayment Programs (Nov. 20, 2018) (discussing

statutorily authorized programs). None of those

provisions apply here.

Recognizing this, the Department bases its newlyclaimed power to cancel broad swaths of student loans

on an obscure, “rarely invoked statutory provision,”

cf. West Virginia v. EPA, 142 S. Ct. at 2624 (Gorsuch,

J., concurring), of the Higher Education Relief

Opportunities for Students Act of 2003, Pub. L. No.

108-76, 117 Stat. 904 (2003) (codified at 20 U.S.C. §§

1098aa–1098ee) (“HEROES Act of 2003” or “HEROES

Act”). See 87 Fed. Reg. 61,512, 61,514 (Oct. 12, 2022)

(relying on 20 U.S.C. § 1098bb(a)(1) to justify mass

debt cancellation). The provision authorizes the

Secretary to “waive or modify any statutory or

regulatory provision applicable to the student

financial assistance programs under Title IV of the

Act as the Secretary deems necessary in connection

with a war or other military operation or national

emergency to provide the waivers or modifications

authorized by paragraph (2).”23 20 U.S.C. §

1098bb(a)(1) (emphasis added). As relevant here, the

23 “To ‘modify’ means ‘to change moderately.’” Terry v. United

States, 141 S. Ct. 1858, 1863 (2021) (quoting MCI Telecomms.

Corp., 512 U.S. at 225).

Secretary is authorized to do this “as may be

necessary to ensure that—recipients of student

financial assistance under title IV of the Act who are

affected individuals are not placed in a worse position

financially in relation to that financial assistance

because of their status as affected individuals[.]” 24 20

U.S.C. § 1098bb(a)(2)(A) (emphasis added).

Nothing in that provision purports to authorize, let

alone clearly authorize, the Department to

unilaterally reimagine student loan law to cancel

hundreds of billions of dollars of debt, even if the

President declares an “emergency.” See Spector v.

Norwegian Cruise Line Ltd., 545 U.S. 119, 139 (2005)

(plurality) (suggesting “broad or general language”

insufficient to find clear statement); see also West

Virginia v. EPA, 142 S. Ct. at 2609 (“Extraordinary

grants of regulatory authority are rarely

accomplished through ‘modest words,’ ‘vague terms,”

or “subtle device[s].’” (quoting Whitman, 531 U.S. at

468). As the Congressional Research Service has

explained: “The HEROES Act lacks express reference

to ‘cancellation,’ ‘discharge,’ ‘forgiveness,’ or similar

terms that Congress has used in portions of statutes,

such as the Public Service Loan Forgiveness program,

that allow or require ED to ‘cancel’ student loan

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

individual who . . . suffered direct economic hardship as a direct

result of a war or other military operation or national emergency,

as determined by the Secretary.” 20 U.S.C. § 1098ee(2)(D)

(emphasis added); see also CRFB, Student Debt Cancellation is

Not

Financially

Justified

(Oct.

11,

2022),

https://www.crfb.org/blogs/student-debt-cancellation-notfinancially-justified.

balances.” Congressional Research Service, Statutory

Basis for Biden Administration Student Loan

Forgiveness, 4 (Sept. 13, 2022).

Indeed, simple “common sense as to the manner in

which Congress is likely to delegate a policy decision

of such economic and political magnitude,” Brown &

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

forgiveness suggests Congress did not do so here.

Congress could not have intended to grant unfettered

power to erase hundreds of billions of dollars in

student debt for millions of borrowers, a topic of

intense debate with immense economic consequences,

to the Department “in so cryptic a fashion.” Id. at 160.

2. Age and Focus of the Act in Relation to

Mass Debt Cancellation.

“Of course, sometimes old statutes may be written

in ways that apply to new and previously

unanticipated situations. But an agency’s attempt to

deploy an old statute focused on one problem to solve

a new and different problem may also be a warning

sign that it is acting without clear congressional

authority.” West Virginia v. EPA, 142 S. Ct. at 2623

(Gorsuch, J., concurring) (citation omitted). So too

here.

The HEROES Act of 2003 was passed in the wake

of the 9/11 terrorist attacks for the benefit of

servicemembers in circumstances involving military

mobilizations. The Act’s findings make plain its focus:

protecting servicemembers.25 See 20 U.S.C. §

1098aa(b). Cf. H. J. Inc. v. Nw. Bell Tel. Co., 492 U.S.

229, 255 (1989) (Scalia, J., dissenting) (finding “the

prologue of the statute, which describes a relatively

narrow focus” relevant to interpreting the word

‘pattern’ in the phrase ‘pattern of racketeering

activity’” (citing Statement of Findings and Purpose,

The Organized Crime Control Act of 1970, Pub. L. 91452, 84 Stat. 922–923)). As the Act recognized: “The

men and women of the United States military put

their lives on hold, leave their families, jobs, and

postsecondary education in order to serve their

country and do so with distinction.” 20 U.S.C. §

1098aa(b)(5); see also id. § 1098aa(b)(6) (“There is no

more important cause for this Congress than to

support the members of the United States military

and provide assistance with their transition into and

out of active duty and active service.”).

Unsurprisingly, given this context, only a single

member of the House voted against it, and it passed

the Senate without amendment by unanimous

consent.26 See 149 Cong. Rec. S10866 (July 31, 2003);

25 As OLC has explained: “The precursor of the HEROES Act of

2003 was the Higher Education Relief Opportunities for

Students Act of 2001. Enacted a few months after the terrorist

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

the Secretary of Education with specific waiver authority to

respond to conditions in the national emergency declared by the

President on September 14, 2001.’” OLC Memo, Slip Op. 3

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

26 Its precursor, the Higher Education Relief Opportunities for

Students Act of 2001, likewise passed by unanimous voice vote

in both the House and the Senate. See 147 Cong. Rec. H7155

(Oct. 23, 2001); 147 Cong. Rec. S13311 (Dec. 14, 2001).

149 Cong. Rec. H2553–54 (Apr. 1, 2003); see also

Statutory Basis for Biden Administration Student

Loan Forgiveness, supra, 4. There was no suggestion

this bill would authorize the President and Secretary

to reimagine this country’s student loan system and

mass-cancel student loan debt for all borrowers

making less than an arbitrary threshold amount of

money.

3. The Department’s Past Interpretations

of the HEROES Act.

The Department’s prior interpretations of the

HEROES Act further underscore the extent of its

overreach. As this Court explained in West Virginia v.

EPA, “as Justice Frankfurter has noted, ‘just as

established practice may shed light on the extent of

power conveyed by general statutory language, so the

want of assertion of power by those who presumably

would be alert to exercise it, is equally significant in

determining whether such power was actually

conferred.’” 142 S. Ct. at 2610 (quoting FTC v. Bunte

Brothers, Inc., 312 U.S. 349, 352 (1941)). That

resonates here.

Until now, the Department has never suggested

the HEROES Act grants the Secretary plenary power

to reimagine student loan law whenever the President

deigns to declare an emergency,27 arrogating to itself

27 It bears reminding that “[i]f human nature and history teach

anything, it is that civil liberties face grave risks when

governments proclaim indefinite states of emergency.” Doe v.

Mills, 142 S. Ct. 17, 21 (2021) (Gorsuch, J., dissenting from

denial of application for injunctive relief).

not only Congress’s exclusive legislative power, see

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

purse,28 U.S. Const. Art. I, § 9, cl. 7. Instead, the

Department more modestly used its HEROES Act

waiver-and-modification authority to tweak the

margins of loan cancellation programs authorized by

other statutes.29 “[T]here is no original, longstanding,

and consistent interpretation meriting judicial

respect.” West Virginia v. EPA, 142 S. Ct. at 2624

(Gorsuch, J., concurring). Nor did the Department

claim blanket loan cancellation powers during the

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

Act the power to pause payments. As the

Congressional Research Service recently explained:

“Categorical cancellation appears poised

substantially reshape ED’s federal student loan

portfolio. The action reflects a use of ED’s HEROES

Act authority that is unlike past invocations. For the

first time, ED plans to use this authority to directly

and permanently discharge a portion of borrowers’

student loan debt.” Statutory Basis for Biden

Administration Student Loan Forgiveness, supra, 1.

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

a national emergency declared by the President of the United

States.” 20 U.S.C. § 1098ee(4).

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

borrowers who are affected individuals in this category, the

Secretary is waiving the requirements that apply to the various

loan cancellations that such periods of service be uninterrupted

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

the borrower’s status as an affected individual.”); 77 Fed. Reg.

59,311, 59,316 (Sept. 27, 2012) (similar); 82 Fed. Reg. 45,465,

45,470 (Sept. 29, 2017) (similar).

4. Mismatch Between the Mass Student

Debt Cancellation and the Department

Education’s

Congressionally

Assigned Mission.

Bolstering the conclusion that the Department is

seeking to arrogate to itself Congress’s legislative

power is the mismatch between the Department’s

actual mission and the apparent goals of the mass

student debt cancellation. The Department has no

expertise in fiscal policy. Nor does the Department

have authority to handle appropriations—a task the

Constitution exclusively reserves to Congress. 30 U.S.

Const. Art. I, § 9, cl. 7; see also Cmty. Fin. Servs. Ass’n

of Am. v. Consumer Fin. Prot. Bureau, 51 F.4th 616,

636 (5th Cir. 2022) (“The Framers . . . believed that

vesting Congress with control over fiscal matters was

the best means of ensuring transparency and

accountability to the people.” (citing Federalist No. 48

(Madison)). Instead, its “mission is to promote student

achievement

and

preparation

for

global

competitiveness by fostering educational excellence

and ensuring equal access.” 31 The Department’s mass

student loan cancellation has nothing to do with that.

“This power over the purse is an essential element of the

checks and balances built into our Constitution—even the

monarchs of England learned long ago that they could not spend

funds over the opposition of Parliament.” Br. of the U.S. House

of Representatives at 1, Trump v. Sierra Club, No. 19A60 (U.S.,

filed July 19, 2019).

U.S.

Dept.

Ed.,

About

ED,

https://www2.ed.gov/about/landing.jhtml.

Just as the CDC lacked the power to reimagine

landlord-tenant law, see Ala. Ass’n of Realtors, 141 S.

Ct. at 2489; OSHA lacked the power to mandate

vaccinations, see NFIB v. OSHA, 142 S. Ct. at 665

(“The Act empowers the Secretary to set workplace

safety standards, not broad public health measures.”);

and the IRS lacked power to make national health

policy, see King v. Burwell, 576 U.S. 473, 486 (2015),

the Department lacks the power to make policy

outside the scope of its mission.

III.

THIS COURT SHOULD TAKE GREAT CARE TO

EXPLAIN TO THE PUBLIC WHY THE MASS DEBT

CANCELLATION WAS UNCONSTITUTIONAL.

Amici respectfully submit that given the broad

public interest in and economic stakes of the

Administration’s mass debt cancellation, the Court

should take great pains in clearly articulating to the

American People in nontechnical terms how and why

the Administration’s actions violated the law—and

why this type of Executive overreach threatens the

rule of law, democracy, and the Republic. Cf. J.A. 297.

By the government’s estimation, this case directly

affects forty million borrowers—approximately

twenty-six million of whom have already applied for

the debt cancellation, about sixteen million of whom

have been approved. Plainly, for many this litigation

is of great interest. And for those who have questions

about the lawfulness of the Department’s actions, this

Court is better positioned than other actors to provide

clarity on that subject, as well as how our

constitutional Republic is supposed to function. Amici

believe it is important for this Court to do so here,

explaining in clear terms that in this country the ends

do not justify the means and that this case is not about

the wisdom of mass debt cancellation but rather

protecting the processes the Constitution sets forth to

ensure that the People’s elected representatives play

their proper role in making policy decisions of vast

economic and political importance. 32

To be sure, “[t]he separation of powers and its role

in protecting individual liberty and the rule of law can

sound pretty abstract.” Neil Gorsuch et al., A

Republic, If You Can Keep It, 41 (2019). “After all, the

value of the separation of powers isn’t always as

obvious as the value of other sorts of constitutional

protections.” Id. at 45. But it bears reminding that

“[t]he primary protection of individual liberty in our

constitutional system comes from the separation of

powers in the Constitution: the separation of the

power to legislate from the power to enforce from the

power to adjudicate.” Brett M. Kavanaugh, Our

Anchor for 225 Years and Counting: The Enduring

Significance of the Precise Text of the Constitution, 89

Notre Dame L. Rev. 1907, 1915 (2014); see also Collins

v. Yellen, 141 S. Ct. 1761, 1780 (2021) (“[T]he

separation of powers is designed to preserve the

liberty of all the people.”).

More broadly, amici respectfully suggest that this Court

should outline, in plain terms, why our constitutional Republic

and system of representative self-government—and honoring the

Constitution’s system of checks and balances and the rule of

law—is preferable to alternative systems of government lacking

these features, as well as the consequences of abandoning the

Constitution in favor of the ends-justify-the-means approach to

governance that is on full display in this case.

The Administration’s usurpation of Congress’s

legislative and appropriations powers flies in the face

of these protections. See also J.A. 263. If allowed to

stand, it would set a dangerous precedent. See also

J.A. 296–297. The Court must not allow this to

happen and should make plain to the American

People—whatever one thinks about the wisdom and

fairness of the President’s mass debt cancellation—

the Administration’s actions could not be allowed to

stand.

CONCLUSION

This

Court

should

reject

unconstitutional actions on the merits.

Petitioners’

Respectfully submitted,

Michael Pepson

Counsel of Record

Casey Mattox

Cynthia Fleming Crawford

AMERICANS FOR PROSPERITY FOUNDATION

1310 N. Courthouse Road, Ste. 700

Arlington, VA 22201

(571) 329-4529

mpepson@afphq.org

J. Marc Wheat

General Counsel

ADVANCING AMERICAN FREEDOM, INC.

801 Pennsylvania Avenue, N.W., Suite 930

Washington, D.C. 20004

(202) 780-4848

MWheat@advancingamericanfreedom.com

Counsel for Amici Curiae

February 1, 2023

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.