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

Nos. 22-506 and 22-535

In The

Supreme Court of the United States

____________________

JOSEPH R. BIDEN, PRESIDENT OF THE UNITED

STATES, ET AL., Petitioners,

v.

STATE OF NEBRASKA, ET AL., Respondents.

____________________

DEPT. OF EDUCATION, ET AL., Petitioners,

v.

MYRA BROWN, ET AL., Respondents.

____________________

On Writs of Certiorari Before Judgment

to the United States Courts of Appeals

for the Eighth and Fifth Circuits

____________________

AMICI CURIAE BRIEF OF FORMER REP.

HOWARD “BUCK” MCKEON, FORMER REP.

JOHN KLINE, FORMER HOUSE SPEAKER

JOHN BOEHNER AND PACIFIC LEGAL

FOUNDATION IN SUPPORT OF

RESPONDENTS

____________________

CALEB KRUCKENBERG

Counsel of Record

MICHAEL A. POON

PACIFIC LEGAL FOUNDATION

3100 Clarendon Blvd., Ste. 1000

Arlington, VA, 22201

Tel: 202.888.6881

CKruckenberg@pacificlegal.org

MPoon@pacificlegal.org

Counsel for Amici Curiae

Pacific Legal Foundation

Former Rep. Howard “Buck”

McKeon

Former Rep. John Kline

Former House Speaker John

Boehner

i

Table of Contents

TABLE OF AUTHORITIES ...................................... iii

IDENTITY AND INTEREST OF AMICUS

CURIAE ...................................................................... 1

INTRODUCTION AND SUMMARY OF

ARGUMENT ............................................................... 5

ARGUMENT ............................................................... 6

I. THIS COURT’S ROLE IS TO SAFEGUARD

CONGRESSIONAL SUPREMACY IN

LAWMAKING ................................................... 6

II. THE PLAIN TEXT OF THE HEROES ACT

OF 2003 DOES NOT EMPOWER THE

DEPARTMENT TO CANCEL STUDENT

LOAN BALANCES............................................ 9

A. Not Every Borrower in America Suffered

Direct Economic Hardship from the

COVID-19 Pandemic .................................. 11

B. Outright Cancellation Is Not a Waiver or

Modification of Existing Requirements..... 12

C. Mass Cancellation of Loans Threatens

the Integrity of Student Assistance

Programs .................................................... 14

D. Mass Loan Cancellation Is Not Necessary

to Alleviate Isolated Financial Harms ...... 16

III. CONTEXT PROVES THAT CONGRESS

NEVER INTENDED TO GRANT THE

SECRETARY THE POWER TO CANCEL

STUDENT LOAN BALANCES ...................... 16

ii

A. The Consensus View Was That the

Original 2001 HEROES Act Did Not

Allow Loan Cancellation ............................ 17

B. The HEROES Act of 2003 Extended

Limited Administrative Relief to More

Servicemembers ......................................... 22

C. The Act’s 2005 Reauthorization Confirmed

Its Intent to Apply Only in Times of War

or Dire Emergencies................................... 26

D. The 2007 Amendment Confirms the Types

of Future Emergencies Contemplated by

Congress ..................................................... 28

E. Subsequent Use Confirms the Limited

Scope Envisioned by Congress .................. 29

CONCLUSION.......................................................... 32

iii

Table of Authorities

Page(s)

Cases

Garrison v. Dept. of Ed.,

No. 22-2886 (7th Cir.) .......................................... 2

Lucia v. SEC,

138 S.Ct. 2044 (2018) .......................................... 1

MCI Telecomms. Corp. v. Am. Tel. & Tel.

Co.,

512 U.S. 218 (1994) ........................................... 11

Rapanos v. United States,

547 U.S. 715 (2006) ............................................. 1

Russello v. United States,

464 U.S. 16 (1983) ............................................. 15

Sackett v. EPA,

566 U.S. 120 (2012) ............................................. 1

U.S. Army Corps of Eng’rs v. Hawkes Co.,

Inc.,

136 S.Ct. 1807 (2016) .......................................... 1

Util. Air Regul. Grp. v. EPA,

573 U.S. 302 (2014) ............................................. 6

West Virginia v. EPA,

142 S.Ct. 2587 (2022) ................................5−6, 16

Statutes

20 U.S.C. § 1077 ........................................................ 8

iv

20 U.S.C. § 1078 ...................................................... 13

20 U.S.C. § 1078-12(d)(2) ........................................ 12

20 U.S.C. § 1087 ...................................................... 19

20 U.S.C. § 1087dd(g)(1) ......................................... 12

20 U.S.C. § 1087e(b)(9) ........................................... 13

20 U.S.C. § 1087e(d) ............................................... 11

20 U.S.C. § 1087e(d) ................................................. 8

20 U.S.C. § 1087e(m)(1) .......................................... 12

20 U.S.C. § 1087j(b), ............................................... 12

20 U.S.C. § 1087ee(a) .............................................. 12

20 U.S.C. § 1087e(o) ................................................ 24

20 U.S.C. § 1087j(b)(2) ............................................ 12

20 U.S.C. § 1091 ........................................................ 8

20 U.S.C. § 1098bb .................................................. 12

20 U.S.C. § 1098bb(a)(1) ....................................... 7, 8

20 U.S.C. § 1098bb(a)(2)(A) ..........................7−10, 14

20 U.S.C. § 1098bb(a)(2)(B) ..............................13−14

20 U.S.C. §1098e ....................................................... 8

v

CBO, Pay-As-You-Go Estimate, S. 1793,

Higher Education Relief Opportunities

for Students Act of 2001, Jan. 8, 2002 ........ 20, 24

HEROES Act of 2003, 20 U.S.C. §

1098bb(a)(1) ....................................... 4, 10, 15, 18

Higher Education Technical Amendments of

1991, Pub. L. No. 102-26 (Apr. 9, 1991)............ 17

Pub. L. No. 107-122, 115 Stat. 2386, 2388

(2002) ...........................................................16−17

Pub. L. No. 99-498 (October 17, 1986) ................... 19

Third Higher Education Extension Act of

2006, Pub. L. No. 109-292 ................................. 18

Other Authorities

Chen, Smetters & Paulson, The Biden

Student Loan Forgiveness Plan:

Budgetary Costs and Distributional

Impact, University of Pennsylvania,

Penn Wharton School (Aug. 26, 2022)

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

issues/2022/8/26/biden-student-loanforgiveness ......................................................... 14

34 C.F.R. § 685.209 ................................................... 8

34 C.F.R. § 685.212 (1996)...................................... 19

147 Cong. Rec. 20372 ........................................17−18

147 Cong. Rec. H10891 (Dec. 19, 2001) ................. 20

vi

149 Cong. Rec. H2523-24 (Apr. 1, 2003) ................ 21

151 Cong. Rec. H8111 (Sept. 20, 2005) .................. 25

153 Cong. Rec. H10789 (Sept. 25, 2007) ..........26−27

68 Fed. Reg. 69,312 (Dec. 12, 2003) ....................... 28

77 Fed. Reg. 59,311 (Sept. 27, 2012) ...................... 29

82 Fed. Reg. 48,195 (Oct. 17, 2017) ........................ 29

87 Fed. Reg. 41,878 ................................................. 10

Student Loan Debt Relief Act of 2019, S.

2235, 116th Cong. (2019) .................................. 30

U.S. Dept. of Education, Federal Student

Loan Portfolio,

https://studentaid.gov/datacenter/student/portfolio (last accessed

Jan. 13, 2022)..................................................... 13

H.R.1168.................................................................. 24

H.R.1412............................................ 2, 21, 22, 23, 24

H.R.2132...................................................... 25, 26, 27

H.R.2524...................................................... 21, 23, 24

H.R.3163...................................................... 18, 19, 20

H.R.6800, Sec. 150117 ............................................ 31

Income-Driven Student Loan Forgiveness

Act, H.R.2034, 117th Cong. (2021) ................... 30

vii

Lewis, Kevin M., & Liu, Edward C., The

Biden Administration Extends the Pause

on Federal Student Loan Payments:

Legal Considerations for Congress,

Congressional Research Service,

LSB10568 Version 3 (Jan. 27, 2021),

https://crsreports.congress.gov/product/p

df/LSB/LSB10568 ........................................ 28, 29

Memorandum to Betsy DeVos, Secretary of

Education (Jan. 12, 2021)

https://static.politico.com/d6/ce/3edf6a39

46afa98eb13c210afd7d/ogcmemohealoan

s.pdf .................................................................... 29

“Modify.” Merriam-Webster.com Dictionary,

https://www.merriamwebster.com/dictionary/modify; ........................ 10

Student Debt Relief, White House (Sept. 20,

2022)

https://www.whitehouse.gov/briefingroom/statementsreleases/2022/09/20/fact-sheet-the-bidenharris-administrations-plan-for-studentdebt-relief-could-benefit-tens-of-millionsof-borrowers-in-all-fifty-states .......................... 14

“Waiver,” Merriam-Webster.com Dictionary,

https://www.merriamwebster.com/dictionary/waiver ......................... 11

1

IDENTITY AND INTEREST OF AMICI

CURIAE 1

Founded in 1973, Pacific Legal Foundation is a

nonprofit,

tax-exempt,

California

corporation

established for the purpose of litigating matters

affecting the public interest. PLF provides a voice in

the courts for Americans who believe in limited

constitutional government, private property rights,

and individual freedom.

PLF is the most experienced public-interest

legal organization defending the constitutional

principle of separation of powers in the area of

administrative law. PLF’s attorneys have participated

as lead counsel in several cases involving the role of

the Judicial Branch as an independent check on the

Executive and Legislative branches under the

Constitution’s Separation of Powers. See U.S. Army

Corps of Eng’rs v. Hawkes Co., Inc., 136 S.Ct. 1807

(2016) (judicial review of agency interpretation of

Clean Water Act); Sackett v. EPA, 566 U.S. 120 (2012)

(same); Rapanos v. United States, 547 U.S. 715 (2006)

(agency regulations defining “waters of the United

States”). It also regularly participates in this Court as

amici. See, e.g., Lucia v. SEC, 138 S.Ct. 2044 (2018)

(SEC administrative-law judge is “officer of the

United States” under the Appointments Clause). PLF

also challenged the policy under review here in an

original action, which is pending in the Seventh

1 Pursuant to Rule 37.6, Amici Curiae affirm that no counsel for

any party authored this brief in whole or in part, and no counsel

or party made a monetary contribution intended to fund the

preparation or submission of this brief. No person other than

Amici Curiae, its members, or its counsel made a monetary

contribution to its preparation or submission.

2

Circuit Court of Appeals. See Garrison v. Dept. of Ed.,

No. 22-2886 (7th Cir.).

Former Rep. Howard “Buck” McKeon served for

22 years as a Member of the U.S. House of

Representatives from 1993 to 2015. During that time,

Rep. McKeon served on the House Education and the

Workforce Committee (formerly the Education and

Labor Committee). He served as Chairman of that

committee’s Subcommittee on 21st Century

Competitiveness, which had jurisdiction over the

Higher Education Act during the 107th Congress, and

as the Chairman of the full committee from January

3, 2006, to January 3, 2007.

Rep. McKeon was the original author of H.R.

3086, The Higher Education Relief Opportunities for

Students (HEROES) Act of 2001. That bill, which

provided the Secretary of Education with specific

waiver authority to respond to national emergencies,

passed the House on October 23, 2001, by a vote of

415-0. A revised, nearly identical bill (S. 1793) was

introduced in the Senate on December 12, 2001,

passed the Senate by unanimous consent on

December 14, 2001, passed the House by voice vote on

December 20, 2001, and was signed into the law by the

President on January 15, 2002 (P.L. 107-122). The

HEROES Act of 2001 served as the precursor to the

HEROES Act of 2003.

Rep. McKeon intended for the HEROES Act of

2001 to serve as a limited measure in direct response

to the September 11th tragedy. It was meant, as its

text reflected, to provide emergency administrative

relief for those men and women who put themselves

in harm’s way in service of our country.

3

Congressman John Kline served from 2003 to

2017 as a Member of Congress, representing

Minnesota’s 2nd Congressional District. During his

tenure, he served on the House Education and the

Workforce Committee, including his last 6 years in

Congress as Chairman of that committee.

Prior to his Congressional service, Mr. Kline

proudly served for more than 25 years in the U.S.

Marine Corps. A decorated Marine, he served on

active duty from 1969 to 1994. A helicopter pilot, he is

a veteran of operations in both Vietnam and Somalia.

Mr. Kline flew helicopters, including “Marine One,” as

a pilot in Marine Helicopter Squadron One, and he

served as Marine Corps Aide to both Presidents

Jimmy Carter and Ronald Reagan.

During his time in Congress, Mr. Kline

spearheaded numerous legislative efforts, including

authoring H.R.1412, the Higher Education Relief

Opportunities for Students (HEROES) Act of 2003.

During the War on Terror, thousands of servicemembers were called into active duty, often risking

loss of assistance as a result of their service. As

someone familiar with the needs of servicemen and

women actively involved in military conflict while also

a fiscal conservative, Mr. Kline knew any legislation

needed to balance the needs of servicemembers and

American taxpayers. For this reason, the HEROES

Act was drafted to ensure that servicemembers would

not face administrative difficulties related to their

post-secondary education while serving in defense of

our Nation but stopped short of offering loan

forgiveness. The legislative intent was to grant the

Secretary of Education the authority to address the

4

specific needs of each student whose education is

interrupted when they are called to service.

Former House Speaker John Boehner chaired

the House Committee on Education and the

Workforce from 2001 to 2006, served as House

Majority Leader and Minority Leader from 2006 to

2011, and led the House from January 2011 to October

2015. During this time, he navigated some of the most

difficult legislative challenges of the modern era.

Born and raised in Cincinnati with eleven

siblings, Mr. Boehner spent years running a small

business in the packaging and plastics industry. After

witnessing the challenges businesses encounter with

government, he gradually entered the political arena,

driven by a desire to make government less intrusive

and more accountable to the people it serves. He

represented the people of Ohio’s 8th Congressional

District in the House for nearly 25 years, leading the

reform-minded “Gang of Seven” in the early 1990s

that closed the scandal-ridden House Bank and forced

a series of institutional changes in Congress,

including measures requiring the House to be subject

to annual independent audits of its financial records.

Mr. Boehner became chairman of the House

Committee on Education and the Workforce in 2001.

As chairman, he developed a reputation for bringing

Republicans and Democrats together and solving big

legislative puzzles on topics like education policy and

pension reform. Mr. Boehner took the gavel as

Speaker of the House in January 2011, dedicating his

speakership to addressing the drivers of the nation’s

debt.

5

Speaker Boehner was instrumental in the

passage of each version of the HEROES Act, and in

achieving the bipartisan goal that no servicemember

should be put in a worse position with regard to their

student loans because of their service to their country.

Speaker Boehner, however, worked hard to ensure

that this aim was tempered by fiscal responsibility

and the need to ensure that any administrative relief

be budget neutral.

This case is about the Department of

Education’s effort to implement a radical change in

the entire framework governing federal student loans

despite the statutory scheme that Congress enacted.

The decisions under review correctly recognized the

Department’s

overreach

and

the

profound

consequences for constitutional order. But to the

extent that there is any doubt about what Congress

intended when it granted the Secretary of Education

limited authority to relax certain administrative

burdens under the HEROES Act of 2003, amici write

separately to make clear that Congress never intended

anything like the loan cancellation effort underway

here.

INTRODUCTION AND SUMMARY OF

ARGUMENT

Student debt cancellation is among the most

contentious and hotly-debated proposals in the nation

today. And although Congress has erected certain

pathways for loan forgiveness, such as the Public

Service Loan Forgiveness program, some call for the

government to cancel loan principals more broadly.

Nevertheless, Congress has declined to do so.

6

Dissatisfied with Congress’s response, the

President announced in August that Secretary of

Education Miguel Cardona and the Department of

Education will unilaterally cancel up to $20,000 in

loan principal for each of 40 million borrowers at a cost

of over $500 billion.

The claimed basis for the cancellation is the

HEROES Act of 2003, 20 U.S.C. § 1098bb(a)(1), a

statute enacted in 2003 during the Iraq war to provide

relief to servicemembers and their families. But never

before has the Act been used to unilaterally cancel

debts en masse, much less at a cost of half a trillion

dollars. Amici Rep. McKeon, Rep. Kline, and Speaker

Boehner know perhaps better anyone why the

Department’s justification is wholly at odds with the

Act’s text, the context in which it was passed, and

what has always been understood to be the limits of

the Act’s reach. Rep. McKeon was the original author

of the Act’s 2001 precursor, while Rep. Kline authored

the 2003 HEROES Act, and Speaker Boehner helped

guide each iteration of the Act as Chair of the House

Education and the Workforce Committee. As they

know, firsthand, Congress did not, and surely could

not, have ever expected the Act to be misused and

distorted by the Department in the policy now before

this Court.

ARGUMENT

I.

THIS COURT’S ROLE IS TO

SAFEGUARD CONGRESSIONAL

SUPREMACY IN LAWMAKING

Whenever this Court reviews the propriety of

administrative action it starts with a simple inquiry—

“whether Congress in fact meant to confer the power

7

the agency has asserted.” West Virginia v. EPA, 142

S.Ct. 2587, 2608 (2022). This Court uses its “common

sense as to the manner in which Congress would have

been likely to delegate such power to the agency at

issue,” and asks whether it was likely “that Congress

had actually done so.” Id. at 2609 (cleaned up).

Thus, “there are extraordinary 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” to an administrative agency.

Id. at 2608 (cleaned up). The Court does not assume

that Congress has assigned to the Executive Branch

questions of “vast economic and political significance”

without a “clear statement” to that effect. Id. at 2605.

This is particularly so “[w]hen an agency claims to

discover in a long-extant statute an unheralded power

to regulate a significant portion of the American

economy.” Util. Air Regul. Grp. v. EPA, 573 U.S. 302,

324 (2014).

But aside from just the breadth of the action

under review, this Court also carefully examines what

Congress would have expected from the statutes it

enacted. For “controversial” policies, particularly

those that Congress “considered and rejected” before,

it seems much less likely that Congress meant to

covertly grant an agency the sweeping authority it has

declined to exercise. West Virginia, 142 S.Ct. at 2610,

2614. “Radical or fundamental change” in the

understanding of a statute are suspect—a statute is

not an “open book to which the agency may add pages

and change the plot line.” Id.

8

While these rules of construction make sense as

an interpretive matter, they serve a much more

important constitutional role. “When Congress seems

slow to solve problems, it may be only natural that

those in the Executive Branch might seek to take

matters into their own hands. But the Constitution

does not authorize agencies to use pen-and-phone

regulations as substitutes for laws passed by the

people’s representatives.” Id. at 2626 (Gorsuch, J.,

concurring). The “major questions doctrine” “helps

safeguard that foundational constitutional promise.”

Id.

As Respondents’ point out, there is little doubt

that the Department’s loan cancellation policy raises

a host of red flags warranting skeptical review. See

Brief of State of Nebraska, et al., at II.A (“This is a

major questions case.”). As Members of Congress

intimately involved in enacting the legislation at

issue, amici write to provide context concerning the

Act’s passage and stress the implications of the

Department’s policy for the separation of powers.

Congress never imagined that the HEROES Act

would be used as the Department has attempted. The

Act is a simple, but profoundly important, effort to

relax administrative burdens for borrowers, primarily

servicemembers, who find themselves in the middle of

military actions or directly burdened by profound

emergencies. It was not an unlimited grant of

authority for the Secretary of Education to

fundamentally remake the higher education system in

his own image.

9

II.

THE PLAIN TEXT OF THE HEROES

ACT OF 2003 DOES NOT EMPOWER

THE DEPARTMENT TO CANCEL

STUDENT LOAN BALANCES

To understand what Congress intended, we

must begin, as always, with the text. Under the Act,

“[t]he Secretary of Education ... may waive or modify

any statutory or regulatory provision applicable to ...

student financial assistance programs ... as the

Secretary deems necessary in connection with a war

or other military operation or national emergency to

provide ... waivers or modifications.” 20 U.S.C. §

1098bb(a)(1)−(2)(A). The waivers or modifications

must “be necessary to ensure that ... recipients of

student financial assistance ... who are affected

individuals are not placed in a worse place financially

in relation to that financial assistance because of their

status as affected individuals[.]” Id. They are also

permitted for “affected individuals who are recipients

of student financial assistance are minimized, to the

extent possible without impairing the integrity of the

student financial assistance programs[.]” Id.

An “affected individual” includes “an individual

who ... resides or is employed in an area that is

declared a disaster area by any Federal, State, or local

official in connection with a national emergency” and

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.” Id. § 1098ee(2).

To put this in context, the Higher Education

Act (HEA) allows eligible students at participating

schools to borrow money directly from the

10

Department. 20 U.S.C. §§ 1077, 1091. It also

establishes certain programs to help borrowers repay

their loans. Under income-driven repayment (IDR)

programs, for example, borrowers contribute a portion

of their income toward their loans. 20 U.S.C. §§

1087e(d), 1098e. At the end of a set period, the

remaining balance is forgiven. 34 C.F.R. § 685.209.

Similarly, under the public-service loan forgiveness

(PSLF) program, borrowers who make 120 payments

while working in qualifying public-interest positions

are eligible to have their balances forgiven. Id. §

1087e(m).

The Department now seeks to cancel $10,000 of

federal student loan debt for every borrower who, in

either 2020 or 2021, earned less than $125,000 (or

$250,000 for those married filing jointly or heads of

households). The amount canceled would increase to

$20,000 for eligible borrowers who had received Pell

Grants. And to justify that action, the Department

looks only to the HEROES Act’s modification and

waiver provision.

The Department’s proposal obviously violates

at least four key limits in the Act. First, a blanket

forgiveness policy that applies to every borrower

below the income threshold is not limited to affected

individuals who suffered “direct economic hardship as

a direct result” of the pandemic. Second, the outright

cancellation of a loan balance is not the same as an

authorized “waiver” or “modif[ication]” of loan

regulations. Third, the purported waivers violate the

statutory directive that they not “impair[] the

integrity of the student financial assistance

programs.” Fourth, outright cancellation is hardly

“necessary” to mitigate the harms associated with the

11

pandemic, particularly since no relevant borrower has

been required to make a single payment since it

began.

A. Not Every Borrower in America

Suffered Direct Economic Hardship

from the COVID-19 Pandemic

The Secretary may provide waivers only to

individuals who would otherwise be (1) “in a worse

position financially” (2) “in relation to their financial

assistance” (3) “because of their status as affected

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

Department’s debt cancellation far exceeds these

limits.

First, cancellation will be available to those

who are in a better financial position, such as those

whose wealth or income have increased since 2020

when the COVID-19 pandemic started. Because the

cancellation program’s sole substantive criterion is an

income of less than $125,000 in either 2020 or 2021 (or

$250,000 for households), those whose income has

increased from 2019 to 2020 to 2021 will be eligible for

cancellation. This flies in the face of the statutory

requirement that the waiver be only for “affected

individuals” who are “in a worse position financially”

because of the pandemic. See id.

Second, no borrower will be worse off “in

relation to their financial assistance.” See id. That’s

because repayments and interest accrual have been

paused “since March 2020.” 87 Fed. Reg. 41,878,

41,884 (July 13, 2022). Additionally, participants in

PSLF and IDR continue to earn credit toward the

payments necessary to obtain forgiveness under those

programs, despite making no payments. Once again,

12

the policy broadly acts as though the opposite were

true.

B. Outright Cancellation Is Not a Waiver

or Modification of Existing

Requirements

Recall that the Act lets the Secretary “waive or

modify”

relevant

“statutory

or

regulatory

provision[s].” 20 U.S.C. § 1098bb(a)(1). But the

“waiver” or “modification” of regulatory requirements

is not the same as wholesale cancellation of a loan

balance.

Waivers or modifications would normally be

understood to simply alter or relax existing

requirements. Every English speaker likely

understands that to modify something is to “make

minor changes” in it. “Modify.” Merriam-Webster.com

Dictionary, https://www.merriamwebster.com/dictionary/modify;

see

also

MCI

Telecomms. Corp. v. Am. Tel. & Tel. Co., 512 U.S. 218,

225 (1994) (“modify” in federal statute “has a

connotation of increment or limitation”). Waivers go a

bit further, but rather than rewrite the rules, they

simply let certain requirements slide. See

“Waiver,” Merriam-Webster.com Dictionary,

https://www.merriam-webster.com/dictionary/waiver

(“the act of intentionally relinquishing or abandoning

a known right, claim, or privilege”).

There are many administrative and technical

requirements for federal student loan borrowers that

appear

readily

amenable

to

waivers

and

modifications. For instance, the Secretary is tasked

with designing different types of repayment plans,

each with unique characteristics and terms. See 20

13

U.S.C. § 1087e(d). Likewise, the Secretary is supposed

to establish certain fiscal controls for lending

institutions. See id. at § 1087e(k). It makes sense for

the HEROES Act to relax some of these requirements

when a borrower is serving his or her country while

deployed in the armed forces, or even ease the

administrative controls of a lender when its offices are

flooded in the wake of a hurricane.

What doesn’t follow, however, is that these

waivers or modifications could result in the outright

cancellation of loan balances. After all, when Congress

has ordered loan balances to be wiped out, it has used

specific language such as “discharge,” “repayment,”

“forgiveness,” and “cancellation.” These terms have

established meanings. “Discharge” describes what

happens when the Secretary releases “the borrower’s

liability on the loan” for specific reasons. See 20 U.S.C.

§ 1087dd(g)(1). Similarly, “repayment,” occurs when

the Secretary “discharge[s] the borrower’s liability on

the loan by repaying the amount owed on the loan,”

such as when the borrower dies or when they are

employed in certain professions. See 20 U.S.C. §§

1078-12(d)(2); 1087(a)(1). Whereas the terms

“forgiveness” and “cancellation” refer to what happens

when a borrower makes an affirmative showing that

he or she has completed certain requirements

allowing the ongoing obligation to be written off. A

borrower “seeks forgiveness” of the loan based on

completing certain requirements. See 20 U.S.C. §

1087j(b)(2). Once forgiveness is given, the loan is

“cancelled.” See 20 U.S.C. §§ 1087e(m)(1), 1087j(b),

1087ee(a). If Congress really meant for the HEROES

Act to confer this type of authority on the Secretary, it

would have said so.

14

Buttressing this understanding is the

temporary nature of the HEROES Act’s provisions.

The waivers or modifications are supposed to be in

“response to military contingencies and national

emergencies,” which suggests that they are time

limited. See 20 U.S.C. § 1098bb (title). But the

Department’s proposal is a permanent solution to a

temporary problem—it is a wholesale cancellation of

the balances going forward.

C. Mass Cancellation of Loans Threatens

the Integrity of Student Assistance

Programs

Of course, one thing Congress clearly said was

that the Secretary’s waiver authority extends only to

the extent he can do so “without impairing the

integrity of the student financial assistance

programs[.]” 20 U.S.C. § 1098bb(a)(2)(B).

In 2022, tens of millions of borrowers owed

approximately $1.6 trillion in federal student loan

debt. U.S. Dept. of Education, Federal Student Loan

Portfolio, https://studentaid.gov/datacenter/student/portfolio, (last accessed Jan. 13, 2022).

And those are loans, which are designed to be paid

back by borrowers with interest. This is money owed

to the American taxpayers at large. If they are not

paid back, then it threatens the basic solvency of the

federal student loan programs.

This reality is reflected in the statutory

structure. Unsurprisingly, the HEA requires

repayment under set terms, with identified interest

rates. See 20 U.S.C. §§ 1078 (Direct Stafford Loans),

1078-2 (Direct PLUS Loans); 1078-3 (Direct

Consolidation Loans); 1078-8 (Direct Unsubsidized

15

Stafford Loans); 1087e (loans made after June 30,

2010). For instance, the HEA limits the kind of

“repayment incentives” the Secretary can give to

borrowers for making timely payments, with loans

disbursed before 2012 being limited to those

incentives that “are cost neutral,” and incentives

being banned outright for new loans. 20 U.S.C. §

1087e(b)(9).

But the Department’s proposal would cast aside

that careful structure and wipe out approximately a

third of borrowers’ financial obligations to taxpayers.

The Department estimates that approximately 40

million borrowers will be eligible for cancellation. See

FACT SHEET: The Biden-Harris Administration’s

Plan for Student Debt Relief, White House (Sept. 20,

2022) https://www.whitehouse.gov/briefingroom/statements-releases/2022/09/20/fact-sheet-thebiden-harris-administrations-plan-for-student-debtrelief-could-benefit-tens-of-millions-of-borrowers-inall-fifty-states. An independent study estimated that,

altogether, this one-time cancellation will cost

approximately $519 billion. Chen, Smetters &

Paulson, The Biden Student Loan Forgiveness Plan:

Budgetary Costs and Distributional Impact,

University of Pennsylvania, Penn Wharton School

(Aug. 26, 2022) https://budgetmodel.wharton.upenn.e

du/issues/2022/8/26/biden-student-loan-forgiveness.

With its proposal to simply write off more than

$500 billion in debts to the American public, the

Department seems intent to destroy student financial

assistance programs at large. But the HEROES Act

specifically foreclosed this result. See 20 U.S.C. §

1098bb(a)(2)(B).

16

D. Mass Loan Cancellation Is Not

Necessary to Alleviate Isolated

Financial Harms

Under § 1098bb(a)(2)(A), waivers are permitted

only if “necessary” to ensure affected individuals are

not placed in a worse position with respect to their

federal loans because of their status as affected

individuals. As discussed, by suspending repayment

and interest accrual, the Department has placed

borrowers in the same position now as before the

pandemic with respect to their federal loans.

Debt cancellation is clearly unnecessary to

achieve the statutory goal under § 1098bb(a)(2)(A).

This “necessary” requirement is meant to place real

limits on the Secretary’s discretion, as demonstrated

by contrast with the broader “as the Secretary deems

necessary” language just one paragraph earlier, see id.

§ 1098bb(a)(1) (emphasis added).

The Department’s disregard for necessity is

most obvious in their plan to refund loan payments to

borrowers who have finished paying off their loans

and reimpose debt in the refunded amount—just so

they can cancel that debt and give those onceborrowers a windfall. Nothing could suggest this is

necessary to protect these individuals from being

worse off with respect to their student loans. They do

not even currently have such loans.

III.

CONTEXT PROVES THAT CONGRESS

NEVER INTENDED TO GRANT THE

SECRETARY THE POWER TO

CANCEL STUDENT LOAN BALANCES

17

While the plain text of the Act answers the

question before this Court, the history, context, and

subsequent use of the Act provides key insight into

what Congress has always understood to be the scope

of the statute. Prior to the Department’s proposal, no

Member of Congress thought that the Act allowed

cancellation of student loan balances. Indeed, the

unbroken consensus for the past 20 years was that the

Act could not be used in this fashion. Recasting the

HEROES Act from a statute permitting limited

modifications to one that can sweep away debt for 40

million people and effectively spend more than $500

billion “effects a fundamental revision of the statute,

changing it from one sort of scheme ... into an entirely

different kind.” West Virginia, 142 S.Ct. at 2596.

A. The Consensus View Was That the

Original 2001 HEROES Act Did Not

Allow Loan Cancellation

A few months after the September 11, 2001,

terrorist attacks, Rep. McKeon introduced, and

Congress passed, the first Higher Education Relief

Opportunities for Students Act. It “provided the

Secretary of Education with specific waiver authority

to respond to conditions in the national emergency

declared by the President on September 14, 2001,” “or

subsequent national emergencies declared by the

President by reason of terrorist attacks.” Pub. L. No.

107-122, 115 Stat. 2386, 2388 (2002).

Like its successor, the Act authorized the

Secretary to “waive or modify any statutory or

regulatory provision applicable to” student loan

programs “as may be necessary to ensure that”

“affected individuals”—those who “suffered direct

18

economic hardship as a direct result” of the

emergency—were “not placed in a worse position

financially in relation to those loans” because of the

emergency. Id. at 2386, 2388. The Act also limited the

waivers to those that could ease “administrative”

burdens “without impairing the integrity of the

student loan programs.” Id.

The scope of the 2001 Act was more limited

than future versions in key respects. Like the current

Act, the 2001 version applied as “necessary in

connection with” a “national emergency.” Id. However,

a relevant “national emergency,” was either the

September 11th attacks “or subsequent national

emergencies declared by the President by reason of

terrorist attacks.” Id. And the Act was set to expire on

September 30, 2003. Id.

Every speech made on the House floor

concerning the Act’s initial introduction in October

2001 recognized its intent to provide solely

administrative benefits to servicemembers, without

threatening the solvency of student loan programs

more broadly. Rep. McKeon introduced the bill as an

effort “to relieve administrative requirements” for

servicemembers who “will be put in the difficult

position of having to make student loan payments

while on active duty.” 147 Cong. Rec. (Bound) 20372

(Oct. 23, 2001). As he said, “Under the bipartisan

HEROES bill, the Education Secretary can grant

waivers so that reservists leaving their jobs and

families may be relieved from making student loan

payments, for a time; victims’ families may be relieved

from receiving collection calls from lenders, and

consecutive service requirements for loan forgiveness

programs may be considered uninterrupted. The

19

waiver authority is similar to that provided to the

Secretary during the Desert Shield and Desert Storm

operations in 1991.” Id. (emphasis added). 2

Several members highlighted what the Act did

not do—forgive a single loan balance. Indeed, this was

a point of contention.

Rep. Carolyn McCarthy explained that under

the Act, “The Secretary may relax repayment

obligations for our active-duty Armed Forces, provide

a period of time victims and their families may reduce

or delay monthly student loan payments, and assist

institutions

and

lenders

with

reporting

requirements.” Id. Calling it a “good bill,” she argued

that Congress was “missing a good opportunity” to

vote on another bill to “provide[] spouses with

desperately needed financial relief,” but such

“language was not included” in the HEROES Act. Id.

at 20372−73. That bill, H.R.3163, September 11

Surviving Spouse Student Loan Relief Act, proposed

“cancellation of student loan indebtedness for

spouses” of “an individual who served as a policeman,

fireman, other safety or rescue personnel or as a

member of the Armed Forces, or any other individual,

who died (or dies) or became (or becomes)

permanently and totally disabled due to injuries

suffered in the terrorist attack on September 11,

2001.” This proposed “cancellation” relied on

2 This was an apparent reference to the Higher Education

Technical Amendments of 1991, Pub. L. No. 102-26 (Apr. 9,

1991). The 1991 Act contained a provision allowing the Secretary

to “waive or modify” student financial aid rules for active duty

personnel, and listed examples of relevant modifications, such as

how the borrowers demonstrated their income. See id. at Sec. 4.

20

provisions of the HEA that were later amended to

incorporate other cancellation programs. Id. 3

Rep. Bill Roemer also explicitly recognized this

point of contrast. Under the HEROES Act, “we do not

forgive the widow or widower’s loan, or have direct

loan forgiveness in this legislation.” Id. at 20374. Like

Rep. McCarthy, he described the lack of cancellation

as “one shortcoming in this legislation.” Id. He closed

by urging Congress to “include in this legislation that

direct loan forgiveness.” Id.

Rep. Jerrold Nadler echoed the same

sentiment. He “wished the bill was broader than it is,”

because “[c]urrent law forgives the loans of the victims

who were killed,” 4 “[b]ut if a victim is killed, a police

officer, a firefighter, an innocent civilian who works in

the World Trade Center, their spouse, their family is

left with any loans that they may have taken out; but

the income with which to pay those loans is

substantially, maybe totally substantially diminished,

maybe totally eliminated.” Id. at 20375. The HEROES

Act “does not … exercise the same loan forgiveness for

the spouses of people who died in this terrorist

attack.” Id.

3 Years later, the Third Higher Education Extension Act of 2006,

Pub. L. No. 109-292, adopted loan forgiveness for those surviving

spouses as a part of the HEA. Notably, such forgiveness requires

a borrower to submit an application demonstrating entitlement

to the forgiveness, and the provision did not alter the HEROES

Act in any way.

4 Certain federal loan balances have been discharged for

borrowers upon death since at least 1986. See 20 U.S.C. § 1087

(1986); Pub. L. No. 99–498, § 437 (October 17, 1986); 34 C.F.R.

§ 685.212 (1996).

21

Because the Act didn’t provide a path for any

type of loan forgiveness, it was not immediately

passed. Instead, after further negotiations, and action

by the Senate, it was amended slightly to “make[]

clear that those individuals called to active duty in the

National Guard in response to the national emergency

called by the President would be included in those

individuals eligible to participate in the regulatory

relief provided by the Secretary of Education.” 147

Cong. Rec. H10891 (Dec. 19, 2001) (Rep. McKeon). It

did not address loan forgiveness, though. Rep. George

Miller expressed his frustration, saying, “I find it

ironic that we are doing this piece of legislation, but

we are not going to do the previous legislation under

discussion to help these families who have been

devastated by these attacks.” Id. at H10892. 5

The Act was passed unanimously, with no

cancellation provision. Instead, the final language

made clear that any action had to preserve the

integrity of the student financial assistance

framework. Thus, there was no doubt in the minds of

the members of the 107th Congress—the HEROES

Act could not possibly extend to outright cancellation

of loan balances. Those lawmakers, including the

5 Somewhat ironically, Rep. Miller has filed an amicus brief with

this Court, claiming that this legislative history supports the

current cancellation policy. See Brief of Former Rep. George

Miller, Biden v. Nebraska, Nos. 22-506 & 535 (Jan. 11, 2023).

Rep. Miller’s brief, however, omits entirely the discussion of the

forgiveness legislation that Rep. Miller seemed to champion, and

which he believed was so needed to make up for the lack of

forgiveness mechanisms in the HEROES Act. See id.

22

undersigned, surely did not intend to allow the

Department to do just that. 6

B. The HEROES Act of 2003 Extended

Limited Administrative Relief to More

Servicemembers

In April of 2003, Rep. Kline wrote and

introduced H.R.1412, which ultimately became what

we now know as the HEROES Act. As chair of the

House Committee on Education and the Workforce,

Speaker Boehner helped shepherd the bill to the

House floor. The Act differs from the current law only

in that it was originally set to expire in 2005.

The Act was intended to only be an extension of

the existing policy, not a different grant of authority.

Rep. Kline said, “This is a bill that expresses the

support and commitment of the United States House

of Representatives to the troops who protect and

defend the United States.” 149 Cong. Rec. H2523−24

(Apr. 1, 2003). The Act “is specific in its intent to

ensure that as a result of a war, military contingency

operation, or national emergency our men and women

are protected. By granting flexibility to the Secretary

of Education, the HEROES Act will protect recipients

of student financial assistance from further financial

difficulty generated when they are called to serve,

minimize administrative requirements without

affecting the integrity of the programs, adjust the

calculation used to determine financial need to

Notably, the Congressional Budget Office concurred. In its

analysis it concluded that the Act “would not have any impact on

the federal budget.” CBO, Pay-As-You-Go Estimate, S. 1793,

Higher Education Relief Opportunities for Students Act of 2001,

Jan. 8, 2002.

6

23

accurately reflect the financial condition of the

individual and his or her family, and provide the

Secretary with the authority to address issues not yet

foreseen.” Id. at H.R.2524.

Rep. Kline also noted why the bill had been

expanded to allow waivers related to other military

actions and natural disasters, not just those connected

to the September 11 attacks. Operation Iraqi Freedom

began on March 20, 2003. H.R.1412 was considered by

the House just 11 days later.

As Rep. Kline said, “Following the September

11, 2001, attacks on our Nation, Members of this

House united to unanimously pass similar legislation

which helped ease the burden on students,

institutions, and families affected by the attacks on

our Nation. Today, the men and women serving in

Operation Iraqi Freedom and in other parts of the

world deserve the same support.” Id.

The active conflict in Iraq, as well as related

conflicts around the world, loomed large in nearly all

the speeches discussing the bill. For instance, Rep.

McKeon urged his “colleagues to unite in their support

for the brave men and women fighting in Operation

Iraqi Freedom and elsewhere.” Id. at H2525. So too

did Rep. Sheila Jackson-Lee, who urged support for

the “[h]undreds of thousands of young men and

women have been called to active duty in our Army,

Navy, Air Force, Marine Corps, and Coast Guard.” Id.

at H2527. Rep. Rahm Emanuel called it a “symbol of

support for the brave men and women involved in

Operation Iraqi Freedom and for all of those who

selflessly devote their lives to protecting our nation

and our freedom.” Id.

24

Notably, however, was the complete lack of any

suggestion that the bill was meant for much broader

purposes, or for actions taken for whole segments of

the American population. Every Member understood

the primary aim was to pay back the sacrifices of those

serving in times of emergency. See id. (“This bill will

ensure that those members of our Armed Services who

have put their studies on hold are not placed in a

worse financial position as a result of their service to

our nation. This is the least we can do.”) (Rep.

Silvestre Reyes). And, as Rep. Reyes noted, while it

did also address other emergencies, the Act was

meant to assist “students whose lives may be

disrupted by a national disaster connected to the

current war effort.” Id. But this effort was still

measured to only those administrative requirements

that could be relaxed without threatening the

integrity of the student loan system. See id. at

H.R.2524 (Rep. Kline).

House Membership understood as well what

the bill didn’t do—forgive even the interest on student

loans. As the prior Congress had understood the first

Act didn’t allow any kind of cancellation, this session

recognized that the same language wouldn’t forgive

interest.

For instance, Rep. Timothy Ryan noted that

under the Act “the Secretary will have the opportunity

to forbear a loan as our servicemen and servicewomen

are activated, this will allow them not to pay on their

student loans for the time that they are active.

Unfortunately, while they are still serving our

country, making great sacrifices, the interest on their

loan will still be accruing; so this is a great first step,

but I think we can do much better.” Id. Rep. Phil

25

Gingrey also recognized that any forgiveness would

“extend relief even more than this bill will do in regard

to mitigating the accrual of interest during the time

that these young men and women are serving our

country.” Id. at H2526.

The House also recognized the reason why the

HEROES Act couldn’t be used to forgive any portion

of loan balances—it had to be budget neutral. As thenRep. Boehner noted, to take such an action “under the

1973 Budget Act we are required to find offsets,” and

a separate bill to forgive interest for active duty

servicemembers came with “about a $10 million cost

estimate” that would need to be offset. Id. at H2525.

But, as mentioned, the 2001 Act’s identical language

“would not have any impact on the federal budget.”

CBO, Pay-As-You-Go Estimate, S. 1793, Higher

Education Relief Opportunities for Students Act of

2001, Jan. 8, 2002. Rep. Ryan therefore urged his

colleagues to consider a separate bill, H.R.1168,

Active Reservists and National Guard Student Loan

Relief Act of 2003, which would have amended the

HEA to authorize loan “deferment during active

duty.” 7

Like its predecessor, the 2003 Act sailed

through the House and Senate. Only a single Member

voted no—Rep. Miller, who had so strenuously

objected to the 2001 Act’s lack of cancellation

authority (and has now urged this Court to find such

7 That separate effort also eventually succeeded, resulting in an

amendment to the HEA’s forgiveness and cancellation provisions

in 2008. See 20 U.S.C. § 1087e(o).

26

power in the 2003 Act). See 118th Cong., 1st Sess., Roll

Call 96, H.R.1412. 8

Moreover, the 118th Congress understood what

has long since become obvious. The 2003 Act does not

allow any loan cancellation, much less the wholesale

policy set forth here. Even for authorized actions, the

2003 Act applied only so much administrative relief to

those immediately harmed by war or an emergency,

such as a hurricane or terrorist attack, as was strictly

necessary.

C. The Act’s 2005 Reauthorization

Confirmed Its Intent to Apply Only in

Times of War or Dire Emergencies

In 2005 Rep. Kline wrote and introduced

H.R.2132, which was enacted and extended the

HEROES Act for two more years. As he said at the

time of its introduction, this was meant to address the

ongoing need to provide administrative relief to

students in the armed services “who will continue to

serve beyond” the original expiration date. 151 Cong.

Rec. H8111 (Sept. 20, 2005). Indeed, because of “our

involvement in the war on terrorism, many thousands

of men and women who serve our Nation in the

Reserves or National Guard or the Armed Forces,

whether Army, Marine Corps, Navy, Air Force or

Coast Guard, have been called to active duty or active

service. As our Nation seeks to rebuild the

communities devastated by Hurricane Katrina, many

more of our men and women in uniform have been

asked to serve.” Id. The extension was simply to

8 Rep. Miller later claimed to have mistakenly voted against the

bill.

27

protect those people “when they are called to serve.”

Id.

Rep. Tom Osborne echoed this sentiment,

saying the bill was needed because “[w]e currently

have many Guardsmen and Reservists who are still

being called up out of college, some to battle Hurricane

Katrina; but many more are serving in Iraq and

Afghanistan.” Id. at H8112.

As before, however, several members expressed

concern because the bill did not allow the Secretary to

forgive interest on the loans. Rep. Chris Van Hollen,

for instance, noted that the Act gave the Secretary

“the authority to ensure that those men and women

serving in Iraq who have Federal student loans not

have to make payments on those loans while they are

serving overseas, while they are in combat, and while

they are on active duty.” Id. at H8111. “But the

problem is this: while they are on active duty, while

they do not have to make payments, the interest

payments on those loans continues to accrue and

accumulate. So, then, that man or woman, the soldier,

comes back to the United States owing a larger bill

than when he or she was deployed.” Id. Rep. Osborne

agreed. Id. at H8112. Thus, Rep. Van Hollen urged the

House to take up other legislation that would amend

the Higher Education Act to address cancellation of

interest for servicemembers. Id. at H8111.

With the passage of the 2005 amendment,

context once again proves Congress’ continued

understanding of the scope of the Act. It simply did

not extend as far as the Department now insists.

28

D. The 2007 Amendment Confirms the

Types of Future Emergencies

Contemplated by Congress

The 2007 Amendment to the HEROES Act

made the statute permanent. Rep. Joe Sestak, the

bill’s sponsor, explained, once again, that the intent of

this legislation was simple: “to provide the Secretary

of Education with the permanent authority to ensure

that active duty military personnel are not financially

harmed by the service that they perform.” 153 Cong.

Rec. H10789 (Sept. 25, 2007).

Rep. Sestak also addressed the scope of the

other applicable natural disasters. “Because of

unforeseen national emergencies, such as Hurricane

Katrina, as well as our continued military

engagement overseas, it is important that we pass the

legislation before us and allow the Secretary of

Education to continue providing this needed relief.”

Id.

Rep. Kline was once again instrumental in the

2007 Amendment. In his speech, he again emphasized

the need “to protect the higher education interest of

members of the Armed Forces,” from “educationrelated financial or administrative difficulties while

they defend our Nation.” Id. at H10790. And speaking

to the need to make the Act permanent, he spoke of

“our involvement in this war on terrorism,” and the

need to provide our troops “with the peace of mind

that this program will continue throughout the

duration of their current or any subsequent

deployment.” Id.

Rep. McKeon also noted that the Amendment

was intended to serve the “men and women of the

29

Armed Forces [who] give selflessly to defend our

freedom overseas and respond to emergencies here at

home.” Id. The permanent extension was meant to

“ensure members of the military will always be

afforded the flexibility and support they need.” Id. at

H10789.

The 2007 Amendment passed without

opposition in either chamber, and, as with every other

time Congress debated the statute, the common

understanding was clear. Permanent authorization

did not mean the Act became of unlimited scope.

Times of “national emergency” were also defined,

discrete events.

E. Subsequent Use Confirms the Limited

Scope Envisioned by Congress

Until COVID-19, the Department “generally

invoked the HEROES Act relatively narrowly to grant

relief to limited subsets of borrowers, such as deployed

military service members or victims of certain natural

disasters.” Kevin M. Lewis & Edward C. Liu, The

Biden Administration Extends the Pause on Federal

Student Loan Payments: Legal Considerations for

Congress, Congressional Research Service, LSB10568

Version

3,

at

2–3

(Jan.

27,

2021),

https://crsreports.congress.gov/product/pdf/LSB/LSB1

0568.

The Secretary first implemented HEROES Act

waivers in 2003, and, as expected, implemented a

series of discrete administrative waivers for affected

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

instance, the Secretary allowed borrowers flexibility

in how they demonstrated income when they missed

30

tax deadlines “because he or she was called up for

active duty or for qualifying National Guard duty

during a war or other military operation or national

emergency,” and waived requirements for written

forbearance agreements for 3 months, because written

agreements might be hard to complete in a disaster

zone. Id. at 69,315−16. There were no provisions

granting any cancellation of either loan principle or

interest. See id.

The Secretary followed this model for the next

20 years. The initial provisions were extended,

without substantive modification, several times. See

82 Fed. Reg. 48,195 (Oct. 17, 2017) (recounting

history). In 2012, the Secretary updated the waivers,

only slightly, reaffirming the prior waivers and adding

new waivers for required certifications for affected

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

in final regulations issued in 2017, and effective until

Sept. 30, 2022, the Secretary yet again reaffirmed the

limited administrative waivers. See 82 Fed. Reg.

48,195 (Oct. 17, 2017). None of these rules ever

contemplated granting the forgiveness or cancellation

of any borrower obligation under the HEROES Act.

See id.

The

pandemic

changed

the

political

environment, however, even as the legal framework

stayed the same. Prior to the expiration of the 2017

rule, the Secretary implemented waivers in 2020 that

extended the same types of administrative relief to

borrowers nationwide—primarily deferred payments.

See Department of Education, Office of the General

Counsel, Memorandum to Betsy DeVos, Secretary of

Education (Jan. 12, 2021) https://static.politico.com/d

6/ce/3edf6a3946afa98eb13c210afd7d/ogcmemohealoa

31

ns.pdf. But some questioned whether the Secretary

had the power to go further, and the Department

considered the question in a memo. See id.

Ultimately, the Department concluded, “Our

opinion has not changed. … [W]e believe the Secretary

does not have the statutory authority to cancel,

compromise, discharge, or forgive, on a blanket or

mass basis, principal balances of student loans, and/or

to materially modify the repayment amounts or terms

thereof.” Id. at 1. The memo continued, “the

Department has never relied on the HEROES Act or

any other statutory, regulatory, or interpretative

authority for the blanket or mass cancellation,

compromise, discharge, or forgiveness of student loan

principal balances, and/or the material change of

repayment amounts or terms, and rightly so, for the

statutory text does not permit, authorize, or support

such action. We believe it is impossible to escape the

conclusion that Congress funds student loans with the

expectation that such loans will be repaid in full with

interest, except in identified circumstances, and did

not authorize [the Secretary] to countermand or

undermine that expectation.” Id. at 6.

And then in light of that understanding,

Congress did what it was supposed to—it considered

whether loan cancellation was an appropriate policy

to implement. See Student Loan Debt Relief Act of

2019, S. 2235, 116th Cong. (2019); Income-Driven

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

(2021). In fact, in 2020 Congress considered, and

ultimately rejected, a whole other HEROES Act,

which was meant to enact virtually the same policy

ED seeks to adopt here.

32

The Heroes Act of 2020, “would require the

Secretary to cancel or repay (in the case of those loans

not held by ED) up to $10,000 in outstanding balance

of Direct Loan, FFEL [Federal Family Education

Loan], and Perkins Loan program loans for borrowers

who are economically distressed.” This proposal,

which passed the House but stalled in the Senate, did

not reference the HEROES Act of 2003 even once in

its more than 1800 pages of text. Instead, it proposed

to amend earlier pandemic legislation to provide that

the Secretary of Education “shall cancel or repay an

amount on the outstanding balance due … on the

Federal student loans … of an economically distressed

borrower that is equal to the lesser of … $10,000; or

… the total outstanding balance due on such loans of

the borrower.” 116th Cong., H.R.6800, Sec. 150117. In

other words, a majority of the House that voted on the

Heroes Act of 2020 seemed to understand that

existing law did not give the Secretary authority to

cancel $10,000 of student loan balances, even for

“economically distressed” borrowers. See id.

CONCLUSION

Public service, almost by definition, involves

sacrifice. But as lawmakers, amici wanted to repay

the brave Americans who endure great personal

hardship in service to their country with a modest

protection against the distractions of administrative

obligations arising from their student loans. But amici

didn’t seek to empower the Secretary to radically

change the student loan system itself, much less

absolve borrowers who haven’t suffered hardship from

the responsibilities they took on as borrowers. Our

colleagues in Congress understood this intent clearly.

They did not grant the Secretary the power to cancel

33

student loans using the HEROES Act as a pretext. As

the past 20 years of consistent understanding prove—

Congress only ever understood the Act as a limited

administrative tool to be used in narrow

circumstances. Out of respect for the role Congress

has played in this issue, and particularly for the lines

Congress did not cross, this Court should affirm the

lower courts and set aside the loan cancellation policy.

DATED: February 2, 2023.

Respectfully submitted,

CALEB KRUCKENBERG

Counsel of Record

MICHAEL POON

Pacific Legal Foundation

3100 Clarendon Blvd,

Ste. 1000

Arlington, VA, 22201

CKruckenberg@pacificlegal.org

MPoon@pacificlegal.org

Counsel for Amici Curiae

Former Rep. Howard “Buck” McKeon,

Former Rep. John Kline,

Former House Speaker John Boehner

and Pacific Legal Foundation