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

Supreme Court briefFeb 3, 2023

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Nos. 22-506 & 22-535

IN THE

Supreme Court of the United States

_________

JOSEPH R. BIDEN, ET AL., Petitioners,

STATE OF NEBRASKA, ET AL., Respondents.

_________

DEPARTMENT OF EDUCATION, ET AL., Petitioners,

MYRA BROWN, ET AL., Respondents.

_________

On Writ of Certiorari to the United States Courts of

Appeals for the Eighth and Fifth Circuits

_________

BRIEF OF 128 U.S. REPRESENTATIVES,

INCLUDING 25 MEMBERS OF THE HOUSE

COMMITTEE ON EDUCATION & THE

WORKFORCE, AS AMICI CURIAE

IN SUPPORT OF RESPONDENTS

_________

JENNIFER L. MASCOTT

R. TRENT MCCOTTER

Counsel of Record

SEPARATION OF POWERS CLINIC

GRAY CENTER FOR THE STUDY OF THE

ADMINISTRATIVE STATE

ANTONIN SCALIA LAW SCHOOL

3301 FAIRFAX DR.

ARLINGTON, VA 22201

(202) 706-5488

rmccotte@gmu.edu

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................... ii

INTEREST OF THE AMICI CURIAE ...................... 1

SUMMARY OF THE ARGUMENT ........................... 5

ARGUMENT .............................................................. 7

The

Debt

Forgiveness

Implicates

Constitutional Separation of Powers .................. 7

II. The Court’s Precedents Call for Requiring

Clear Statutory Authority for the Debt

Forgiveness .......................................................... 9

III. The HEROES Act Does Not Clearly

Authorize the Debt Forgiveness ....................... 13

A. There Is No Clear Authority for

Forgiveness ................................................... 13

B. At the Very Least, There Is No Clear

Authority for Blanket Forgiveness .............. 17

IV. The Executive Branch Has Effectively

Abandoned the Proffered Basis for the Debt

Forgiveness ........................................................ 20

CONCLUSION ......................................................... 22

TABLE OF AUTHORITIES

Cases

Page(s)

A.L.A. Schechter Poultry Corp. v. United

States, 295 U.S. 495 (1935) .................................... 9

AFGE v. Block,

655 F.2d 1153 (D.C. Cir. 1981) ............................ 19

Atl. Richfield Co. v. Christian,

140 S. Ct. 1335 (2020) .......................................... 17

Batterton v. Marshall,

648 F.2d 694 (D.C. Cir. 1980) .............................. 20

Biden v. Missouri, 142 S. Ct. 647 (2022) .................. 20

Brown v. U.S. Dep’t of Educ.,

No. 4:22-CV-0908-P, 2022 WL 16858525

(N.D. Tex. Nov. 10, 2022)....................................... 9

Cisneros v. Alpine Ridge Grp.,

508 U.S. 10 (1993) ................................................ 16

Georgia v. President of the United States,

46 F.4th 1283 (11th Cir. 2022) ............................ 12

Gundy v. United States,

139 S. Ct. 2116 (2019) .......................................... 12

Indus. Union Dep’t, AFL-CIO v. Am.

Petroleum Inst., 448 U.S. 607 (1980) ................... 12

Kentucky v. Biden,

23 F.4th 585 (6th Cir. 2022) ................................ 12

King v. Burwell, 576 U.S. 473 (2015) ......................... 7

iii

Louisiana v. Biden,

55 F.4th 1017 (5th Cir. 2022) .............................. 11

Mistretta v. United States,

488 U.S. 361 (1989) ................................................ 9

NFIB v. OSHA, 142 S. Ct. 661 (2022) ...................... 19

NLRB v. SW Gen., Inc.,

137 S. Ct. 929 (2017) ............................................ 16

OPM v. Richmond,

496 U.S. 414 (1990) ................................................ 8

Sosa v. Alvarez-Machain,

542 U.S. 692 (2004) .............................................. 16

Train v. City of New York,

420 U.S. 35 (1975) ................................................ 11

Turner v. Safley, 482 U.S. 78 (1987) ......................... 12

U.S. Telecom Ass’n v. FCC,

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

Utility Air Regul. Grp. v. EPA,

573 U.S. 302 (2014) ................................................ 9

West Virginia v. EPA,

142 S. Ct. 2587 (2022) .......................................... 10

Whitman v. Am. Trucking Ass’ns,

531 U.S. 457 (2001) .......................................... 6, 19

Constitution & Statutes

U.S. Const. art. I, § 7 ................................................... 7

U.S. Const. art. I, § 8 ................................................... 7

U.S. Const. art. I, § 9 ................................................... 7

20 U.S.C. § 1087 .................................................. 16, 19

20 U.S.C. § 1087e ................................................ 16, 19

20 U.S.C. § 1087dd .............................................. 16, 19

20 U.S.C. § 1087ee..................................................... 15

20 U.S.C. § 1098aa .................................................... 18

20 U.S.C. § 1098bb .......................... 1, 8, 13, 15, 16, 17

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

Other Authorities

Biden: ‘The Pandemic Is Over’, CNN

(Sept. 18, 2022),

https://tinyurl.com/3p7c5j9w ............................... 21

Borrowers, Extends Student Loan

Repayment Pause, Nov. 22, 2022,

https://tinyurl.com/5chkvbbn ............................... 21

Stephen G. Breyer, Judicial Review of

Questions of Law and Policy, 38

ADMIN. L. REV. 363 (1986) ................................... 15

Cancel Student Loan Debt, FORBES

(July 28, 2021),

https://tinyurl.com/cyfp7m2y ............................... 10

Congress, MSNBC (Feb. 22, 2021),

https://tinyurl.com/bdrffne4 ................................. 10

U.S. Dep’t of Education, Biden-Harris

Administration Continues Fight for

Student Debt Relief for Millions of

Borrowers, Extends Student Loan

Repayment Pause, Nov. 22, 2022,

https://tinyurl.com/5chkvbbn ............................... 21

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

Justice, Use of the HEROES Act of

2003 to Cancel the Principal

Amounts of Student Loans, 2022 WL

3975075 (Aug. 23, 2022) ...................... 6, 16, 17, 18

Memorandum for Betsy Devos,

Secretary of Education, from Reed D.

Rubinstein, Principal Deputy

General Counsel, Department of

Education, Re: Student Loan

Principal Balance Cancellation,

Compromise, Discharge, and

Forgiveness Authority (Jan. 12, 2021) ................. 10

1 THE RECORDS OF THE FEDERAL

CONVENTION OF 1787 (M. Farrand

ed. 1937) ................................................................. 7

INTEREST OF AMICI CURIAE1

Amici curiae are 128 members of the United States

House of Representatives and therefore have a strong

interest in preserving the legislative and spending

powers that Article I of the federal Constitution vests

in the United States Congress.

Moreover, 25 amici are members of the House

Committee on Education and the Workforce, which

has principal oversight of the U.S. Department of

Education and is the House Committee to which the

Secretary of Education must make certain reports

pursuant to the HEROES Act. 20 U.S.C. § 1098bb(c).

These amici have an especially strong interest in the

Secretary’s correct use of federal statutes pertaining

to federal education loans, as well as the judiciary’s

correct interpretation of those statutes.

The following is the full list of amici, beginning

with the sponsors of this brief, House Leadership, and

members of the Education and Workforce Committee:

Chairwoman Virginia Foxx

Jeff Duncan

Majority Leader Steve Scalise

Majority Whip Tom Emmer

Chief Deputy Whip Guy Reschenthaler

Conference Chair Elise M. Stefanik

Policy Committee Chair Gary Palmer

Conference Vice Chair Mike Johnson

No counsel for any party has authored this brief in whole or in

part, and no entity or person, aside from amici curiae and their

counsel, made any monetary contribution intended to fund the

preparation or submission of this brief.

Conference Secretary Lisa McClain

Joe Wilson

Glenn Thompson

Tim Walberg

Glenn Grothman

Rick W. Allen

Jim Banks

James Comer

Lloyd Smucker

Burgess Owens

Bob Good

Mary E. Miller

Michelle Steel

Ron Estes

Julia Letlow

Kevin Kiley

Aaron Bean

Eric Burlison

Nathaniel Moran

John James

Lori Chavez-DeRemer

Brandon Williams

Erin Houchin

Additional U.S. Representatives signing as amici:

Robert B. Aderholt

Mark Alford

Jodey C. Arrington

Brian Babin, D.D.S.

Don Bacon

Andy Barr

Andy Biggs

Gus M. Bilirakis

Dan Bishop

Lauren Boebert

Mike Bost

Vern Buchanan

Larry Bucshon, M.D.

Tim Burchett

Michael Burgess, M.D.

Ken Calvert

Kat Cammack

Jerry L. Carl

Earl L. “Buddy” Carter

Ben Cline

Andrew S. Clyde

Eric A. “Rick” Crawford

Dan Crenshaw

Anthony D’Esposito

Warren Davidson

Scott DesJarlais

Mario Diaz-Balart

Byron Donalds

Chuck Edwards

Jake Ellzey

Mike Ezell

Randy Feenstra

Drew A. Ferguson IV

Brad Finstad

Michelle Fischbach

Mike Flood

Mike Garcia

Carlos Gimenez

Lance Gooden

Paul A. Gosar, D.D.S.

Garret Graves

Mark E. Green, M.D.

Michael Guest

Brett Guthrie

Harriet M. Hageman

Diana Harshbarger

Kevin Hern

French J. Hill

Ashley Hinson

Ronny Jackson

Jim Jordan

Mike Kelly

Nick LaLota

Jake LaTurner

Nicholas A. Langworthy

Robert E. Latta

Michael V. Lawler

Barry Loudermilk

Morgan Luttrell

Tom McClintock

Richard McCormick,

M.D., MBA

Mariannette Miller

Meeks, M.D.

Dan Meuser

Max L. Miller

John R. Moolenaar

Alexander A. Mooney

Barry Moore

Gregory F. Murphy, M.D.

Troy E. Nehls

Ralph Norman

Jay Obernolte

Andrew Ogles

Greg Pence

Scott Perry

August Pfluger

Bill Posey

Cathy McMorris Rodgers

Mike Rogers

John Rose

John H. Rutherford

Austin Scott

Jason Smith

Pete Stauber

Dale W. Strong

Claudia Tenney

William R. Timmons IV

Beth Van Duyne

Ann Wagner

Michael Waltz

Randy K. Weber

Daniel Webster

Brad R. Wenstrup

Bruce Westerman

Roger Williams

Robert J. Wittman

Steve Womack

Rudy Yakym III

SUMMARY OF THE ARGUMENT

Petitioners’ assertion of power to forgive every

federal student loan in the country, potentially even a

decade after the COVID-19 pandemic ends, raises

significant separation of powers concerns. The power

of the purse is one of Congress’s most potent checks

against the executive branch, yet Petitioners’ overly

broad reading of the HEROES Act risks encroaching

on that power, as well as Congress’s Article I

legislative authority, by arrogating to the Secretary of

Education the authority to forgive a trillion dollars in

federal debt that otherwise would be owed to the

Treasury. The Court should require clear statutory

authority before adopting an interpretation that risks

significant conflict between the legislative and

executive branches.

But Petitioners’ mass loan forgiveness program

(“the Debt Forgiveness”) is not justified by clear

statutory authority. The HEROES Act, which is the

sole authority Petitioners invoke, says the Secretary

can “waive or modify” statutory debt provisions, but

that power is expressly cabined by the next

subsection, which provides the specific “[a]ctions

authorized.” Nowhere is debt forgiveness mentioned,

but Congress did address and impose tightly

constricted bounds even on forgiving minor

procedural and paperwork requirements. It defies

reason that Congress would expressly impose such

restrictions on minor forms of relief to minimize the

effects on the federal fisc, while remaining entirely

silent on the far more consequential act of debt

forgiveness. The HEROES Act’s focus on restricting

minor forms of relief is even more glaring given the

existence of other statutes expressly authorizing

forgiveness of federal student loans in narrow

circumstances.

Petitioners would have the Court believe that even

though Congress knew how to grant tailored debt

forgiveness and routinely imposed narrow restrictions

on it, the HEROES Act not only silently authorized

blanket forgiveness but did so without imposing, or

even acknowledging, the analogous restrictions

placed on minor paperwork forgiveness and reporting

requirements. Rather than adopt that strange and

inconsistent reading, the Court should conclude that

the Act simply did not authorize debt forgiveness in

the first place.

But even if some form of forgiveness were

authorized, there still is no clear authority for the

view that “any person who resided or worked in the

United States or its territories during the pandemic”

could receive full loan forgiveness, as Petitioners

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

Use of the HEROES Act of 2003 to Cancel the

Principal Amounts of Student Loans, 2022 WL

3975075, at *13 (Aug. 23, 2022) (“OLC Op.”). The

HEROES Act focuses almost exclusively on members

of the military from its title, to its statutory findings,

to its triggering events. Congress was not hiding the

“elephant” of indiscriminate, en masse debt

forgiveness in the few “ancillary” provisions of the

HEROES Act that do not involve a military

connection. Whitman v. Am. Trucking Ass’ns, 531 U.S.

457, 468 (2001). If Congress had wished to grant such

expansive authority, it would never have written the

HEROES Act the way it did.

ARGUMENT

The

Debt

Forgiveness

Implicates

Constitutional Separation of Powers.

Petitioners ask the Court to sanction an

interpretation of the HEROES Act that would risk

serious implications for the Constitution’s repeated

reservation to Congress of matters directly affecting

the federal fisc, as well as the legislative power more

generally.

“The legislature not only commands the purse but

prescribes the rules by which the duties and rights of

every citizen are to be regulated.” THE FEDERALIST

NO. 78 (A. Hamilton); see also King v. Burwell, 576

U.S. 473, 517 (2015) (Scalia, J., dissenting). This

“power over the purse may, in fact, be regarded as the

most complete and effectual weapon with which any

constitution can arm the immediate representatives

of the people.” THE FEDERALIST NO. 58 (J. Madison);

see also 1 THE RECORDS OF THE FEDERAL CONVENTION

OF 1787, at 139–40 (M. Farrand ed. 1937) (George

Mason stating that “[t]he purse & the sword ought

never to get into the same hands”).

The Constitution accordingly imposed strict

requirements to ensure that Congress retained

accountability and control over actions that would

affect the federal fisc. See, e.g., U.S. Const. art. I, § 7,

cl. 1 (Origination Clause); id. § 8, cl. 1 (Taxing and

Spending Clauses); id. § 8, cl. 2 (Borrowing Clause);

id. § 8, cl. 5 (Coinage Clause); id. § 9, cl. 4 (Direct

Taxation Clause); id. § 9, cl. 7 (Appropriations and

Statement-and-Account Clause). These limitations

“assure that public funds will be spent according to

the letter of the difficult judgments reached by

Congress as to the common good and not according to

the individual favor of Government agents.” OPM v.

Richmond, 496 U.S. 414, 428 (1990).

Petitioners

assert

exceedingly

broad

interpretation of the HEROES Act that would provide

an executive branch official with broad discretionary

authority to forgive over a trillion dollars in federal

debt obligations that would otherwise have to be

repaid to the Treasury. That view makes significant

national financial decisions dependent on “the

individual favor of Government agents” at the

Department of Education, which would risk a serious

executive encroachment on Congress’s Article I power

of the purse. OPM, 496 U.S. at 428.

The HEROES Act itself recognizes Congress’s

primal role in matters related to the spending powers,

even for relatively minor acts of relief for student loan

debtors. For example, “after first exercising any

authority to issue a waiver or modification” of a

federal student loan program, the Secretary of

Education must send a report to the House Committee

on Education and the Workforce—on which numerous

amici sit—and explain “the impact of any waivers or

modifications issued” and the “basis for such

determination.” 20 U.S.C. § 1098bb(c) (emphasis

added).

Petitioners’ interpretation of the HEROES Act

provides such capacious discretion to the Secretary of

Education that it also implicates the Constitution’s

prohibition against delegation of Congress’s Article I

legislative powers. “The nondelegation doctrine is

rooted in the principle of separation of powers that

underlies our tripartite system of Government.”

Mistretta v. United States, 488 U.S. 361, 371 (1989).

Petitioners claim, for example, that the terms of the

HEROES Act are so open to executive interpretation

and discretion that, “in ten years, they could still use

the HEROES Act to forgive student-loan debt because

of the COVID-19 pandemic if the Secretary deems it

‘necessary.’” Brown v. U.S. Dep’t of Educ., No. 4:22CV-0908-P, 2022 WL 16858525, at *13 (N.D. Tex. Nov.

10, 2022). If such a tangential connection to a longdistant emergency could justify forgiving a trillion

dollars in debt, it is difficult to see what true limits

would exist on the Secretary’s power. See A.L.A.

Schechter Poultry Corp. v. United States, 295 U.S.

495, 537–38 (1935) (Congress cannot give the

executive branch “unfettered discretion” to act as

“needed or advisable for the rehabilitation and

expansion of trade or industry”).

As explained next, however, the Court can avoid

these separation of powers concerns by requiring clear

statutory text authorizing the Debt Forgiveness, see

Part II, infra—a clarity that the HEROES Act fails to

provide, see Part III, infra.

II.

The Court’s Precedents Call for Requiring

Clear Statutory Authority for the Debt

Forgiveness.

The Debt Forgiveness undoubtedly has “vast

‘economic and political significance,’” Utility Air

Regul. Grp. v. EPA, 573 U.S. 302, 324 (2014), and thus

triggers the major questions doctrine, especially given

the nearly uniform historical view that the HEROES

Act did not authorize mass debt forgiveness2 and also

given “that Congress ha[s] conspicuously and

repeatedly declined to enact [such relief] itself,” West

Virginia v. EPA, 142 S. Ct. 2587, 2610 (2022); see

Resp.Br.42–44, No. 22-535. Moreover, as amici

explain below, see Part III, infra, Petitioners ground

their asserted power in the “ancillary” and “rarely

used” portions of the HEROES Act, West Virginia, 142

S. Ct. at 2610.

Even setting aside the major questions doctrine,

however, the separation of powers concerns outlined

above in Part I would independently justify requiring

clear statutory authority before upholding the Debt

Forgiveness. Such clear-text requirements, regardless

of the precise label the Court uses, often rest on

“separation of powers principles.” Id. at 2609; see also

U.S. Telecom Ass’n v. FCC, 855 F.3d 381, 417 (D.C.

Cir. 2017) (Kavanaugh, J., dissenting from the denial

of rehearing en banc) (clear-statement doctrines

“help[] preserve the separation of powers and

operate[] as a vital check on expansive and aggressive

assertions of executive authority”).

E.g., Hayes Brown, Biden Thinks Student Loan Debt Relief Is

Congress,

MSNBC

(Feb.

22,

2021),

https://tinyurl.com/bdrffne4; Adam S. Minsky, Pelosi: President

Biden Does Not Have Power to Cancel Student Loan Debt,

FORBES

(July 28,

2021),

https://tinyurl.com/cyfp7m2y;

Memorandum for Betsy Devos, Secretary of Education, from

Reed D. Rubinstein, Principal Deputy General Counsel,

Department of Education, Re: Student Loan Principal Balance

Cancellation, Compromise, Discharge, and Forgiveness Authority

(Jan. 12, 2021).

This Court has previously recognized that it is

better to resolve a dispute for lack of clear statutory

text supporting the executive’s view, than

countenance the risk of a serious interbranch conflict

over the power of the purse. For example, in Train v.

City of New York, 420 U.S. 35 (1975), which addressed

President Nixon’s impoundments, the Court held that

“[w]ithout something in addition to what is now before

us,” a typical spending statute should not be

construed as “providing the Executive with the

seemingly limitless power to withhold funds from

allotment and obligation,” which would have raised

serious concerns about the executive branch’s power

over spending. Id. at 45, 46.

The government argues here that no clear

statement of authority is required because the Debt

Forgiveness pertains to the disposition of the

government’s own “benefits.” DOJ.Br.48. But

categorically excluding spending and forgiveness

statutes from clear-statement requirements would

effectively allow the executive to encroach upon

Congress’s critical Article I spending authority

whenever the relevant statute could be portrayed as

the least bit ambiguous. Requiring clear statutory

authority for aggressive executive claims over the

power of the purse helps avoid that potential conflict,

as in Train.3

Moreover, the circuit courts have repeatedly held that the

major questions doctrine can apply even when the executive

action pertains to the disbursement of federal benefits, such as

in the context of government contracting. See Louisiana v. Biden,

The nondelegation concerns raised by Petitioners’

interpretation of the HEROES Act provide another

basis for requiring clear textual authority. Such a

requirement operates “in service of” the nondelegation

doctrine by disfavoring statutory interpretations that

might amount to a transfer of legislative power from

Congress to an executive agency. See Gundy v. United

States, 139 S. Ct. 2116, 2142 (2019) (Gorsuch, J.,

dissenting). Indeed, this Court has long recognized

that “[a] construction of the statute that avoids this

kind of open-ended grant should certainly be favored.”

Indus. Union Dep’t, AFL-CIO v. Am. Petroleum Inst.,

448 U.S. 607, 646 (1980) (plurality). And the Court

should “certainly” favor such an interpretation here,

as otherwise the limits imposed by Congress could

prove to be mere “parchment barriers” against the

Secretary of Education’s broad assertion of power to

forgive federal student loans.

Finally, requiring clear statutory authority

reflects judicial restraint, which has its own salutary

effects on separation of powers. See Turner v. Safley,

482 U.S. 78, 85 (1987) (“[S]eparation of powers

concerns counsel a policy of judicial restraint.”). It

may be preferable for a court to hold that a specific

executive

action

lacks

clear

congressional

authorization, rather than risk declaring the

55 F.4th 1017, 1029 (5th Cir. 2022); Georgia v. President of the

United States, 46 F.4th 1283, 1295–96 (11th Cir. 2022) (op. of

Grant, J.); Kentucky v. Biden, 23 F.4th 585, 606–07 (6th Cir.

2022). And, contrary to Petitioners’ position, see DOJ.Br.48, the

Debt Forgiveness is an assertion of “regulatory authority” in the

sense that it causes harm, for example, to “the affairs of entities”

like MOHELA. See, e.g., Resp.Br.15–23, No. 22-506.

executive action or the relevant statute itself

unconstitutional.

As demonstrated next, the HEROES Act does not

provide the clear authority for the Debt Forgiveness

required under this Court’s longstanding precedent.

III.

The HEROES Act Does Not

Authorize the Debt Forgiveness.

Clearly

The HEROES Act is the sole legal authority

Petitioners assert for the Debt Forgiveness, but that

statute does not provide clear authority for

forgiveness of student loans, see Part III.A, infra, let

alone for mass forgiveness, see Part III.B, infra.

There Is No Clear Authority for

Forgiveness.

The government relies on § 1098bb(a)(1) of the

HEROES Act, which says that “[i]n general” the

Secretary of Education can “waive or modify any

statutory or regulatory provision applicable to the

[relevant] financial assistance programs” when

certain other requirements are satisfied. 20 U.S.C.

§ 1098bb(a)(1). But that “general” language is

expressly cabined by the very next subsection, which

uses the same “waive or modify” terminology and then

provides the specific “[a]ctions authorized” that may

be taken only as “may be necessary to ensure” one of

a specified list of goals. Id. § 1098bb(a)(2).

In § 1098bb(a)(2), Congress placed narrow

guardrails on the Secretary’s ability to waive even

minor procedural requirements, yet the subsection

nowhere mentions debt forgiveness, let alone imposes

the kinds of restrictions already imposed on minor

forms of relief.

For example, the Secretary’s relaxation of mere

“administrative requirements” must be done “to the

extent possible without impairing the integrity of the

student financial assistance programs.”

Id.

§ 1098bb(a)(2)(B). Congress thought to expressly state

the requirements for this minor issue and demand

that the Secretary not impair the solvency and

reliability of the lending programs. Forgiving

hundreds of billions of dollars’ worth of loans

obviously has a far more negative impact on the

“integrity” of the loan programs, yet under

Petitioners’ view, Congress imposed no such similar

restriction on forgiveness—and in fact did not bother

to mention forgiveness at all.

Similarly, “institutions of higher education,

eligible lenders, guaranty agencies, and other entities

participating in the student assistance programs”

“may be granted temporary relief” but only “from

requirements that are rendered infeasible or

unreasonable by a national emergency,” such as “due

diligence requirements and reporting deadlines.” Id.

§ 1098bb(a)(2)(E). Again, Congress expressly covered

reporting deadlines and paperwork requirements—

and made clear such relief must be “temporary.”

As amici—all of whom are Members of the U.S.

Congress, and many of whom are on the House

Committee that oversees the Department of

Education—can attest, it begs belief that Congress

would authorize debt forgiveness in the HEROES Act

without imposing at least the same types of

limitations it imposed on minor forms of relief to

minimize their collateral consequences on the federal

fisc. The better reading is that the HEROES Act did

not authorize the significant act of debt forgiveness in

the first place, and thus it was unnecessary to impose

separate limitations to minimize the consequences of

forgiveness. See Stephen G. Breyer, Judicial Review

of Questions of Law and Policy, 38 ADMIN. L. REV. 363,

370 (1986) (“Congress is more likely to have focused

upon, and answered, major questions, while leaving

interstitial matters to answer themselves in the

course of the statute’s daily administration.”).4

This conclusion is reinforced by numerous

separate statutes expressly authorizing debt

forgiveness using clear language and imposing

specific requirements to minimize the effects on the

integrity of those loan programs. See, e.g., 20 U.S.C.

§1087ee(a)(2); id. § 1087j(a)–(b); id. § 1078-10; id.

§ 1078-11(a)(1). And given the HEROES Act’s

military focus, see Part III.B, infra, it is especially

notable that Congress already separately authorizes

loan forgiveness when the Department of Veterans

4 Moreover, the Secretary can take action to ensure that student

loan recipients are “not placed in a worse position financially in

relation to [the student loan] because of their status as affected

individuals” under the HEROES Act, 20 U.S.C. § 1098bb(a)(2),

which envisions keeping borrowers in the status quo ante, before

the triggering “war or other military option or national

emergency” occurred, and then lifting the modification or waiver

once the emergency has passed. Permanently forgiving debt goes

far beyond maintaining the status quo—it provides a windfall to

the recipient, putting him in a distinctly and materially superior

position than before the “national emergency.”

Affairs determines that a veteran is unemployable

due to a service-connected disability. See 20 U.S.C.

§§ 1087(a)(2), 1087e(a)(1), 1087dd(c)(1)(F)(iv).

This is more than an argument that “Congress

knew how to [authorize loan forgiveness] when it

wanted to.” Sosa v. Alvarez-Machain, 542 U.S. 692,

711 n.9 (2004). Rather, the HEROES Act not only

omits any reference to debt forgiveness but

simultaneously includes limitations on how

“administrative” and “reporting” requirements can be

relaxed or waived. 20 U.S.C. § 1098bb(a)(2). It defies

reason that Congress would have been so concerned

about minimizing the effects of administrative relief

but have no such concerns about the dramatic act of

debt forgiveness, despite clearly expressing such

qualms in other statutes, even those dealing with the

military. This is another significant tell that the

HEROES Act simply does not authorize forgiveness in

the first place, and certainly does not do so with the

requisite clear language. See Part II, supra.

Petitioners argue the Court should ignore these

other

debt-forgiveness

statutes

because

§ 1098bb(a)(1) applies “[n]otwithstanding any other

provision of law.” See DOJ.Br.40; OLC Op., 2022 WL

3975075, at *8–10. But that argument is a red herring

because a “notwithstanding” clause serves only to

resolve conflicting provisions,5 and Respondents do

not contend the HEROES Act conflicts with those

other debt forgiveness statutes (ironically, it is

See NLRB v. SW Gen., Inc., 137 S. Ct. 929, 939 (2017); Cisneros

v. Alpine Ridge Grp., 508 U.S. 10, 18 (1993).

Petitioners’ interpretation that could cause such a

conflict). The point in citing the other debt forgiveness

statutes is to show that Congress uses certain

language when it wants to authorize forgiveness, but

Congress did not use such language in the HEROES

Act despite expressly addressing other, more minor,

forms of relief.

The “notwithstanding” clause in § 1098bb(a)(1)

does not preclude judicial resort to commonsense

considerations of how Congress historically has

drafted loan forgiveness statutes. See Atl. Richfield

Co. v. Christian, 140 S. Ct. 1335, 1351 (2020) (“Such

clauses [like ‘nonetheless’] explain what happens in

the case of a clash, but they do not otherwise expand

or contract the scope of either provision by

implication.”).6

For these reasons, both standing alone and in light

of congressional drafting practices, the HEROES Act

does not clearly authorize forgiveness of debt.

At the Very Least, There Is No Clear

Authority for Blanket Forgiveness.

Even if some kind of targeted debt forgiveness

were clearly authorized by the HEROES Act, there is

still no clear authority for the categorical forgiveness

that Petitioners assert. To be sure, the Act does not

require “case-by-case” determinations for relief, 20

U.S.C. § 1098bb(b)(3), but that does not mean it

The OLC opinion suggests there may be no conflict between the

HEROES Act and the other debt forgiveness statutes, see OLC

Op., 2022 WL 3975075, at *10 & n.3, but that only confirms the

“notwithstanding” clause is doing no work here.

countenances debt forgiveness for nearly every

borrower in the country in one fell swoop. See

Resp.Br.9, No. 22-506 (the Debt Forgiveness would

apply to 40 million of the 43 million borrowers who

still owe money, with nearly 20 million having their

debts eliminated entirely).

The HEROES Act’s scope of coverage is narrow

and riven with references to the military and its

members. Start with the title. Nobody would say that

students are all “HEROES” merely by virtue of taking

on student loans. Then there are the six paragraphs

of statutory findings, each of which references the

military and national security. 20 U.S.C. § 1098aa(b).

Another provision urges schools to refund tuition and

fees for students called away to “active duty or active

service.” Id. § 1098cc(a).

The definition of “affected individual” includes four

categories, two of which are exclusively military. Id.

§ 1098ee(2). Even within the context of military

operations, the HEROES Act is further narrowed. Not

all National Guard duty qualifies—it must be “in

connection with a war, another military operation, or

a national emergency declared by the President and

supported by Federal funds.” Id. § 1098ee(6).

The extraordinary scope of relief asserted by

Petitioners stands in stark contrast to the lone

example that the Office of Legal Counsel could muster

for when debt forgiveness might be necessary under

the HEROES Act: “a soldier permanently disabled in

a military operation and unable to work.” OLC Op.,

2022 WL 3975075, at *9. But Petitioners have never

previously invoked the HEROES Act to cancel student

debt for any borrower, not even a “soldier

permanently disabled in a military operation and

unable to work.” And for good reason. As noted above,

a different statute already authorizes loan forgiveness

when a veteran is determined by the VA to be

unemployable due to a service-connected disability.

See

U.S.C.

§§ 1087(a)(2),

1087e(a)(1),

1087dd(c)(1)(F)(iv). Again, Petitioners’ interpretation

of the HEROES Act risks conflicting with and

rendering superfluous those other provisions.

To be sure, the HEROES Act does not apply

exclusively to members of the military, see 20 U.S.C.

§ 1098ee(2)(C)–(D), but those narrow non-military

portions—on which Petitioners rely as the sole

authority for hundreds of billions of dollars in debt

forgiveness—are

the

prototypical

“ancillary

provisions” in which Congress “does not alter the

fundamental details of a regulatory scheme.”

Whitman v. Am Truck Ass’ns, 531 U.S. 457, 468

(2001).

Finally, Petitioners assert that any invocation of

the HEROES Act is exempted from notice and

comment, see DOJ.Br.62–63, but it begs belief that

Congress would have authorized the Secretary to

permanently eliminate hundreds of billions of dollars

of the public’s debt obligations without any public

input. Outside the context of interpretive and other

minor rules, Congress typically reserves exceptions to

notice and comment for things like “‘emergency

temporary’” agency actions, NFIB v. OSHA, 142 S. Ct.

661, 663 (2022) (quoting 20 U.S.C. § 655(c)(1))

(emphasis added), not those causing permanent and

extensive effects, see AFGE v. Block, 655 F.2d 1153,

1157 (D.C. Cir. 1981); see also Batterton v. Marshall,

648 F.2d 694, 703 n.47 (D.C. Cir. 1980) (“[D]ue to the

unrepresentative nature of an administrative agency,

‘public participation in the rulemaking process is

essential in order to permit administrative agencies to

inform themselves, and to afford safeguards to private

interests.’”) (alteration omitted); Biden v. Missouri,

142 S. Ct. 647, 659 (2022) (Alito, J.,

dissenting) (“[E]xceptions to notice-and-comment

must be ‘narrowly construed and only reluctantly

countenanced.’”). This only confirms the Act does not

authorize mass debt forgiveness in the first place.

***

The HEROES Act’s near-singular focus on the

military, along with only ancillary provisions for

targeted relief for other individuals, demonstrates a

modest but dispositive point here: if the goal were to

authorize en masse debt forgiveness for the entire

universe of federal borrowers, it is inconceivable

Congress would have written the HEROES Act the

way it did.

IV.

The Executive Branch Has Effectively

Abandoned the Proffered Basis for the

Debt Forgiveness.

Finally, even if the HEROES Act had authorized

mass debt forgiveness as a general matter,

Respondents should still prevail because the

Executive Branch itself has effectively abandoned the

specific proffered basis for the Debt Forgiveness.

Most significantly, the Secretary recently failed to

assert COVID-19 as the basis for continued loan

forbearance, instead stating that litigation over

forgiveness is the basis for continued forbearance. See

U.S. Dep’t of Education, Biden-Harris Administration

Continues Fight for Student Debt Relief for Millions of

Borrowers, Extends Student Loan Repayment Pause,

Nov. 22, 2022, https://tinyurl.com/5chkvbbn.7 Given

that Petitioners have apparently abandoned COVID19 as a basis even for continuing the pre-existing

temporary loan forbearance, it is difficult to see how

COVID-19 could nonetheless suddenly provide the

basis for announcing the far more dramatic action of

massive loan forgiveness.

Petitioners’ ambivalence about the proffered

justification for the Debt Forgiveness also belies their

claim that the asserted power is somehow

meaningfully limited. See, e.g., DOJ.Br.57 (labeling

the Debt Forgiveness as a “one-time” event). If the

Court adopts Petitioners’ view that mass debt

forgiveness is authorized even a decade after the

pandemic, it is only a matter of when, not if,

Petitioners will use that power again.

Similarly, less than a month after the Debt Forgiveness was

announced, the President himself repeatedly announced, “The

pandemic is over.” Kate Sullivan et al., Biden: ‘The Pandemic Is

Over’, CNN (Sept. 18, 2022), https://tinyurl.com/3p7c5j9w.

CONCLUSION

For the foregoing reasons, amici urge the Court to

affirm.

Respectfully submitted,

JENNIFER L. MASCOTT

R. TRENT MCCOTTER

Counsel of Record

SEPARATION OF POWERS CLINIC

GRAY CENTER FOR THE STUDY OF THE

ADMINISTRATIVE STATE

ANTONIN SCALIA LAW SCHOOL

GEORGE MASON UNIVERSITY

3301 FAIRFAX DR.

ARLINGTON, VA 22201

(202) 706-5488

rmccotte@gmu.edu

February 3, 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.