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

Nos. 22-506, 22-535

In the

Supreme Court of the United States

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

STATES, ET AL.,

Petitioners,

v.

STATE OF NEBRASKA, ET AL.,

Respondents.

DEPARTMENT OF EDUCATION, ET AL.,

Petitioners,

v.

MYRA BROWN, ET AL.,

Respondents.

On Writs of Certiorari Before Judgment to the

United States Courts of Appeals for the Eighth and

Fifth Circuits

BRIEF OF SENATOR MARSHA BLACKBURN

AND 42 OTHER MEMBERS OF THE UNITED

STATES SENATE AS AMICI CURIAE IN

SUPPORT OF RESPONDENTS

BRIAN A. KULP

DECHERT LLP

CIRA CENTRE

2929 Arch Street

Philadelphia, PA 19104

STEVEN A. ENGEL

Counsel of Record

MICHAEL H. MCGINLEY

JUSTIN W. AIMONETTI

DECHERT LLP

1900 K Street, NW

Washington, DC 20006

(202) 261-3369

steven.engel@dechert.com

Counsel for Amici Curiae

February 3, 2023

i

TABLE OF CONTENTS

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

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

INTRODUCTION AND SUMMARY OF

ARGUMENT ................................................................ 2

STATUTORY BACKGROUND ................................... 7

ARGUMENT ................................................................ 9

I. The Cancellation Program Exceeds The

Executive’s Statutory Authority ............................. 9

A. The Major Questions Doctrine Applies ............ 10

B. Congress Did Not Authorize The Secretary’s

Cancellation Program, Let Alone In Clear

Terms ................................................................. 14

1. The Cancellation Program violates the

plain text of the HEROES Act ..................... 15

2. Statutory context confirms that the

Cancellation Program is unlawful ............... 21

II. The Cancellation Program Violates The Take

Care Clause ........................................................... 24

A. The Take Care Clause Imposes An

Affirmative Obligation On The Executive To

Faithfully Execute The Law ............................. 25

B. The Cancellation Program Fails To Take

Care That The Law Is Faithfully Executed

As It Far Exceeds The Executive’s

Settlement Power.............................................. 27

CONCLUSION .......................................................... 30

APPENDIX, LIST OF AMICI CURIAE.................... 1a

ii

TABLE OF AUTHORITIES

Cases

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

295 U.S. 495 (1935) ................................................... 4

Ala. Ass’n of Realtors v. HHS,

141 S. Ct. 2485 (2022)................................. 10, 11, 24

Angelus Milling Co. v. Comm’r,

325 U.S. 293 (1945) ................................................. 27

Arizona v. Mayorkas,

143 S. Ct. 478 (2022)............................................... 21

Ayestas v. Davis,

138 S. Ct. 1080 (2018)............................................. 16

Consumer Fin. Prot. Bureau v. All Am. Check

Cashing, Inc., 33 F.4th 218 (5th Cir. 2022) ........... 27

Dep’t of Commerce v. New York,

139 S. Ct. 2551 (2019)............................................. 20

FDA v. Brown & Williamson Tobacco Corp.,

529 U.S. 120 (2000) ................................................. 10

Gonzales v. Oregon,

546 U.S. 243 (2006) ................................................. 11

Gundy v. United States,

139 S. Ct. 2116 (2019)............................................... 4

Heckler v. Chaney,

470 U.S. 821 (1985) ........................................... 24, 26

In re Aiken Cnty.,

725 F.3d 255 (D.C. Cir. 2013) ................................. 26

INS v. Chadha,

462 U.S. 919 (1983) ................................................. 12

iii

Kendall v. U.S. ex rel. Stokes,

37 U.S. (12 Pet.) 524 (1838) .................................... 26

Nat’l Ass’n of Mfrs. v. Dep’t of Def.,

138 S. Ct. 617 (2018)............................................... 21

NFIB v. OSHA,

142 S. Ct. 661 (2022)..................................... 4, 11, 21

Royal Indem. Co. v. United States,

313 U.S. 289 (1941) ................................................... 2

SAS Inst., Inc. v. Iancu,

138 S. Ct. 1348 (2018)............................................. 22

Sturgeon v. Frost,

139 S. Ct. 1066 (2019)............................................. 23

TC Heartland LLC v. Kraft Foods Grp. Brands LLC,

581 U.S. 258 (2017) ................................................. 22

U.S. Dep’t of Navy v. Fed. Lab. Rels. Auth.,

665 F.3d 1339 (D.C. Cir. 2012) ............................... 27

United States v. S. Pac. Co.,

259 U.S. 214 (1922) ................................................. 27

Util. Air Reg. Grp. v. EPA,

573 U.S. 302 (2014) ..................................... 10, 11, 15

Van Buren v. United States,

141 S. Ct. 1648 (2021)............................................. 21

Vorchheimer v. Philadelphian Owners Ass’n,

903 F.3d 100 (3d Cir. 2018) .................................... 16

Wayman v. Southard,

23 U.S. (10 Wheat.) 1 (1825) .................................. 11

West Virginia v. EPA,

142 S. Ct. 2587 (2022)........................ 6, 10-14, 22, 24

iv

Whitman v. Am. Trucking Ass’ns,

531 U.S. 457 (2001) ................................................. 22

Youngstown Sheet & Tube Co. v. Sawyer,

343 U.S. 579 (1952) ..................................... 13, 25, 30

Constitution

U.S. Const. art. I, § 1 ......................................... 1, 2, 10

U.S. Const. art. I, § 7, cl. 2 .......................................... 3

U.S. Const. art. I, § 8, cl. 1 ...................................... 1, 2

U.S. Const. art. I, § 8, cl. 18 ........................................ 1

U.S. Const. art. I, § 9, cl. 7 .......................................... 2

U.S. Const. art. II, § 1, cl. 1 ....................................... 25

U.S. Const. art. II, § 3 ........................................... 6, 25

U.S. Const. art. IV, § 3, cl. 2 .................................... 1, 2

Statutes

5 U.S.C. § 706(2) .......................................................... 7

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

20 U.S.C. § 1070(a) ...................................................... 2

20 U.S.C. §§ 1070a–1070h........................................... 7

20 U.S.C. § 1070a(b) .................................................... 7

20 U.S.C. § 1070b-2(c) ................................................. 7

20 U.S.C. § 1070g-2(b) ................................................. 7

20 U.S.C. § 1070h ........................................................ 7

20 U.S.C. §§ 1071–1087-4............................................ 7

v

20 U.S.C. § 1077(a)(2) .................................................. 8

20 U.S.C. §§ 1078-10 ............................................. 8, 21

20 U.S.C. §§ 1078-10(b)–(c) ....................................... 21

20 U.S.C. § 1078-11 ..................................................... 8

20 U.S.C. § 1078-11(a)(1) .......................................... 21

20 U.S.C. § 1078-12 ..................................................... 8

20 U.S.C. § 1078-12(c) ............................................... 21

20 U.S.C. § 1082(a)(6) ................................................ 29

20 U.S.C. § 1087(a) ................................................ 8, 21

20 U.S.C. § 1087(a)(1) ................................................ 22

20 U.S.C. §§ 1087a–1087ii .......................................... 7

20 U.S.C. § 1087(c) ...................................................... 8

20 U.S.C. § 1087(c)(1) ................................................ 22

20 U.S.C. § 1087(d) .................................................... 22

20 U.S.C. § 1087dd(c)(1)(F) ......................................... 8

20 U.S.C. §§ 1087dd(c)(2)–(7) ...................................... 8

20 U.S.C. §§ 1087dd(g)(1) .......................................... 22

20 U.S.C. §§ 1087dd(k) .............................................. 16

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

20 U.S.C. § 1087e(e)(1) .............................................. 16

20 U.S.C. § 1087e(m)(1) ............................................. 22

20 U.S.C. § 1087ee ....................................................... 8

20 U.S.C. § 1087ee(a)–(b) .......................................... 22

20 U.S.C. § 1087j ......................................................... 8

vi

20 U.S.C. § 1087j(b) ................................................... 22

20 U.S.C. §§ 1098aa–1098ee ....................................... 4

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

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

20 U.S.C. § 1098bb(a)(1) ............................ 9, 15, 16, 19

20 U.S.C. § 1098bb(a)(2) ...................................... 16, 17

20 U.S.C. § 1098bb(a)(2)(A) ............. 5, 9, 15, 17, 19, 23

20 U.S.C. § 1098bb(b)(3) ............................................ 19

20 U.S.C. § 1098e(b) ................................................ 8, 9

20 U.S.C. § 1098e(b)(7) ................................ 8, 9, 21, 22

20 U.S.C. § 1098ee(2)(C) ........................................... 17

20 U.S.C. § 1098ee(2)(D) ........................................... 18

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

31 U.S.C. § 3711(a)(1) .......................................... 24, 29

31 U.S.C. § 3711(a)(2) ................................................ 27

Pub. L. No. 92-318, 86 Stat. 235 (1972) ...................... 3

Pub. L. No. 94-482, 90 Stat. 2081 (1976) .................... 3

Pub. L. No. 95-43, 91 Stat. 213 (1977) ........................ 3

Pub. L. No. 95-566, 92 Stat. 2402 (1978) .................... 3

Pub. L. No. 96-49, 93 Stat. 351 (1979) ........................ 3

Pub. L. No. 96-374, 94 Stat. 1367 (1980) .................... 3

Pub. L. No. 99-498, 100 Stat. 1268 (1986) .................. 3

Pub. L. No. 100-369, 102 Stat. 835 (1988) .................. 3

Pub. L. No. 102-325, 106 Stat. 448 (1992) .................. 3

vii

Pub. L. No. 103-66, 107 Stat. 312 (1993) .................... 3

Pub. L. No. 105-33, 111 Stat. 251 (1997) .................... 3

Pub. L. No. 105-244, 112 Stat. 1581 (1998) ................ 3

Pub. L. No. 108-76, 117 Stat. 904 (2003) ................ 3, 4

Pub. L. No. 109-171, 120 Stat. 4 (2006) ...................... 3

Pub. L. No. 110-84, 121 Stat. 784 (2007) .................... 3

Pub. L. No. 110-315, 122 Stat. 3078 (2008) ................ 3

Pub. L. No. 111-39, 123 Stat. 1934 (2009) .................. 3

Pub. L. No. 111-152, 124 Stat. 1029 (2010) ................ 3

Pub. L. No. 112-25, 125 Stat. 240 (2011) .................... 3

Pub. L. No. 113-28, 127 Stat. 506 (2013) .................... 3

Pub. L. No. 115-245, 132 Stat. 2981 (2018) ................ 3

Pub. L. No. 116-91, 133 Stat. 1189 (2019) .................. 3

Pub. L. No. 116-136, 134 Stat. 281 (2020) ............ 3, 16

Pub. L. No. 116-260, 134 Stat. 1182 (2020) ................ 3

Pub. L. No. 117-200, 136 Stat. 2219 (2022) ................ 3

Legislation

149 Cong. Rec. E663 (Apr. 3, 2003) .......................... 23

149 Cong. Rec. H2522 (daily ed. Apr. 1, 2003) ......... 23

H.R. 2034, 117th Cong. (2021) .................................. 12

H.R. 3448, 116th Cong. (2019) .................................. 12

H.R. 3887, 116th Cong. (2019) .................................. 12

H.R. 4797, 117th Cong. (2021) .................................. 12

viii

H.R. 6363, 116th Cong. (2020) .................................. 12

H.R. 6708, 117th Cong. (2022) .................................. 12

H.R. 6800, 116th Cong. § 150117(h) (2020) .............. 12

H.R. 8514, 116th Cong. (2020) .................................. 12

S. 2235, 116th Cong. (2019) ...................................... 12

Regulations

31 C.F.R. § 902.2(a) ................................................... 29

34 C.F.R. § 30.70(a) ................................................... 29

Federal Student Aid Programs, 85 Fed. Reg.

79,856, 79,862 (Dec. 11, 2020) .......................... 16, 17

Other Authorities

American Heritage College Dictionary (3d ed.

1997) ........................................................................ 15

Authority of the United States to Enter Settlements

Limiting the Future Exercise of Executive Branch

Discretion, 23 Op. O.L.C. 126 (1999)...................... 28

Joe Biden (@JoeBiden), Twitter (Mar. 22, 2020,

7:28 PM), bit.ly/3W2DK8z ........................................ 5

Eric Boehm, Biden’s Student Debt Relief Plan Will

Worsen Inflation, Reason (Aug. 24, 2022, 2:00

PM), bit.ly/3kf9WZi ................................................ 14

Center on Budget and Policy Priorities, Chart

Book: Tracking the Recovery From the Pandemic

Recession,

CBPP

(Jan.

27,

2023),

bit.ly/3kbNUXj ........................................................ 18

ix

Education pays, 2021, U.S. Bureau of Labor

Statistics (May 2022), bit.ly/3GYZJJ ....................... 8

Federal Respondents’ Opposition to Application

for a Stay Pending Certiorari, Arizona v.

Mayorkas, No. 22A544 (U.S. Dec. 20, 2022) .......... 20

Federal Student Aid, Interest Rates and Fees for

Federal Student Loans, bit.ly/3GCfYuJ ................... 7

1 Samuel Johnson, A Dictionary of the English

Language (6th ed. 1785) ......................................... 25

Joint Resp. to Court Order, Sweet v. Cardona, No.

3:19-cv-03674-WHA (N.D. Cal. Nov. 9, 2022) ........ 29

Seung Min Kim & Marianna Sotomayor, Biden

signals he’s open to canceling student loans,

Washington Post (Apr. 26, 2022, 2:56 PM),

bit.ly/3w1V3fp ......................................................... 11

Lorie Konish, Student loan forgiveness could

result in a $2,500 burden per taxpayer, research

finds, CNBC (Sep. 2, 2022, 4:15 PM),

bit.ly/3GKiYFr ........................................................ 14

Memorandum from David J. Barron, Acting

Assistant Attorney General, to Attorneys of the

Office, Best Practices for OLC Legal Advice and

Written

Opinions

(July

16,

2010),

bit.ly/3DtLPNe ........................................................ 19

Memorandum from Reed D. Rubinstein, Principal

Deputy General Counsel, Department of

Education, to Betsy DeVos, Secretary of

Education (Jan. 12, 2021), bit.ly/3H602Ca ............ 12

Merriam-Webster’s Collegiate Dictionary (11th

ed. 2003) .................................................................. 15

x

Nat’l Ass’n of Student Fin. Aid Admins.,

Legislative Tracker: Loans & Repayment,

NASFAA, bit.ly/3H4OKhH..................................... 12

Nat’l Ass’n of Student Fin. Aid Admins.,

Legislative

Tracker

Archive:

Loans

&

Repayment, NASFAA, bit.ly/3iBBvf1..................... 12

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) ........................................................ 19

President Joseph R. Biden, Remarks by President

Biden in a CNN Town Hall with Anderson

Cooper (Feb. 16, 2021), bit.ly/3Qzg9LN ................... 5

President Joseph R. Biden, Remarks by President

Biden on the December 2021 Jobs Report (Jan. 7,

2022), bit.ly/3kjMj1C .............................................. 18

Speaker of the House Nancy Pelosi, Transcript of

Pelosi Weekly Press Conference Today (July 28,

2021), bit.ly/3QzglL1 ................................................ 5

Kate Sullivan et al., Biden: ‘The pandemic is over,’

CNN (Sep. 18, 2022, 9:39 PM), bit.ly/3iEJLee ...... 20

The Attorney General’s Duty to Defend and Enforce

Constitutionally Objectionable Legislation, 4A

Op. O.L.C. 55 (1980) ............................................... 26

The Attorney General’s Role as Chief Litigator for

the United States, 6 Op. O.L.C. 47 (1982) .......... 27, 28

The Federalist No. 58 (James Madison) ..................... 2

3 U.S. Gen. Accounting Office, Office of the

General Counsel, Principles of Federal

Appropriations Law (3d ed. 2008) .......................... 29

1

INTEREST OF AMICI CURIAE1

Amici curiae are Senator Marsha Blackburn and

42 other members of the United States Senate (listed

in the Appendix). As members of the Senate, amici

have an unquestionable interest in protecting the

legislative powers that the Constitution confers upon

the Congress of the United States. See, e.g., U.S.

Const. art. I, § 1 (“All legislative Powers herein

granted shall be vested in a Congress of the United

States[.]”). The Constitution entrusts Congress with

the powers to raise and spend the Nation’s money, see

id. art. I, § 8, cl. 1, to dispose of and regulate federal

property, see id. art. IV, § 3, cl. 2, and to prescribe all

laws Necessary and Proper for effectuating the

legislature’s powers, see id. art. I, § 8, cl. 18. In the

exercise of those powers, Congress enacted Title IV of

the Higher Education Act, 20 U.S.C. § 1070 et seq., to

help eligible borrowers pay for the costs of higher

education. But it also deliberately structured Title IV

to minimize the program’s burden on taxpayers and

the federal fisc. To that end, Congress authorized the

forgiveness of federal student loan debt only in

specific, narrow circumstances. This is not one of

them.

Amici submit this brief in support of

Respondents because the Executive’s actions here defy

Title IV, threaten to deprive the Nation of nearly half

a trillion dollars, and offend the separation of powers

enshrined in the Constitution.

Pursuant to Supreme Court Rule 37.6, no counsel for any party

authored this brief in whole or in part and no entity or person,

aside from amici curiae, their members, and their counsel, made

any monetary contribution toward the preparation or submission

of this brief.

1

2

INTRODUCTION AND SUMMARY OF

ARGUMENT

The Constitution vests “[a]ll legislative Powers” in

Congress. U.S. Const. art. I, § 1. And no part of the

legislative power was more important to the Framers

than the power of the purse. See, e.g., The Federalist

No. 58, at 359 (James Madison) (Clinton Rossiter ed.,

1961) (recognizing the “power over the purse” as “the

most complete and effectual weapon with which any

constitution can arm the immediate representatives of

the people”). The Constitution therefore authorizes

Congress to “provide for the common Defence and

general Welfare of the United States,” U.S. Const. art.

I, § 8, cl. 1, and it jealously protects that power by

providing, categorically, that “[n]o Money shall be

drawn from the Treasury, but in Consequence of

Appropriations made by Law,” id. art. I, § 9, cl. 7. In

much the same way, the Framers vested Congress

with the “[p]ower to release or otherwise dispose of the

rights and property of the United States.” Royal

Indem. Co. v. United States, 313 U.S. 289, 294 (1941)

(citing U.S. Const. art. IV, § 3, cl. 2). There can be no

dispute, then, that the powers to spend and forgive the

monies owed to the Treasury rest with Congress alone.

Acting pursuant to these powers, Congress passed

Title IV of the Higher Education Act in 1965 to assist

in making available the benefits of postsecondary

education to eligible students in institutions of higher

education. See 20 U.S.C. § 1070(a). Since then,

Congress has amended the laws governing federal

3

student loans dozens of times.2 What has emerged is

a detailed and carefully crafted legislative scheme,

which aims to provide fair and efficient government

aid to eligible students, while balancing the competing

interests of taxpayers and institutional actors alike.

Each part of the federal student loan program

reflects exhaustive compromises and calculated policy

judgments that survived the rigors of bicameralism

and presentment. See U.S. Const. art. I, § 7, cl. 2.

Through those duly enacted laws, Congress intended

and expected that the borrowers who voluntarily

assumed these obligations would repay their student

loans under the conditions set forth in Title IV. And

where Congress believed that loan forgiveness was

warranted, it made that intention expressly clear.

Yet the Biden Administration, through its

Cancellation Program, now seeks to discard those

deliberate limitations and unilaterally erase roughly

See, e.g., Pub. L. No. 117-200, 136 Stat. 2219 (2022); Pub. L. No.

116-260, 134 Stat. 1182 (2020); Pub. L. No. 116-136, 134 Stat. 281

(2020); Pub. L. No. 116-91, 133 Stat. 1189 (2019); Pub. L. No. 115245, 132 Stat. 2981 (2018); Pub. L. No. 113-28, 127 Stat. 506

(2013); Pub. L. No. 112-25, 125 Stat. 240 (2011); Pub. L. No. 111152, 124 Stat. 1029 (2010); Pub. L. No. 111-39, 123 Stat. 1934

(2009); Pub. L. No. 110-315, 122 Stat. 3078 (2008); Pub. L. No.

110-84, 121 Stat. 784 (2007); Pub. L. No. 109-171, 120 Stat. 4

(2006); Pub. L. No. 108-76, 117 Stat. 904 (2003); Pub. L. No. 105244, 112 Stat. 1581 (1998); Pub. L. No. 105-33, 111 Stat. 251

(1997); Pub. L. No. 103-66, 107 Stat. 312 (1993); Pub. L. No. 102325, 106 Stat. 448 (1992); Pub. L. No. 100-369, 102 Stat. 835

(1988); Pub. L. No. 99-498, 100 Stat. 1268 (1986); Pub. L. No. 96374, 94 Stat. 1367 (1980); Pub. L. No. 96-49, 93 Stat. 351 (1979);

Pub. L. No. 95-566, 92 Stat. 2402 (1978); Pub. L. No. 95-43, 91

Stat. 213 (1977); Pub. L. No. 94-482, 90 Stat. 2081 (1976); Pub.

L. No. 92-318, 86 Stat. 235 (1972).

2

4

half a trillion dollars in debt owed to the United

States.

The Cancellation Program is a clear

arrogation of the legislative power.

Indeed, it is no exaggeration to say that through

the Cancellation Program, the Biden Administration

has claimed an unprecedented degree of fiscal

authority. Had Congress vested the Executive with

the raw power and broad discretion it now asserts—to

cancel, partially cancel, or not cancel hundreds of

billions of dollars in debt—then this Court would

surely view this as a case, in Justice Cardozo’s words,

of “delegation running riot.” A. L. A. Schechter Poultry

Corp. v. United States, 295 U.S. 495, 553 (1935)

(Cardozo, J., concurring). And it would surely hold

that “Congress ha[d] unconstitutionally divested itself

of its legislative responsibilities.” Gundy v. United

States, 139 S. Ct. 2116, 2135 (2019) (Gorsuch, J.,

dissenting); see NFIB v. OSHA, 142 S. Ct. 661, 669

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

Of course, Congress did no such thing. And the

question is not even close. To support his Cancellation

Program, the Secretary of Education relies on the

HEROES Act—an amendment to Title IV passed in

the wake of the September 11 terrorist attacks. See

Higher Education Relief Opportunities for Students

Act of 2003, Pub. L. No. 108-76, 117 Stat. 904 (2003)

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

relevant provision of that Act permits only modest

measures to prevent certain individuals from losing

ground on their loans due to hardships induced by a

war or national emergency.

That is, Congress

authorized only those measures “necessary” to ensure

that borrowers would “not [be] placed in a worse

5

position financially in relation to” their student loans

“because of their status as affected individuals.” 20

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

The

HEROES Act cannot plausibly be read to authorize

the forgiveness of loan principal that places borrowers

in a better position financially than before the

emergency, much less to cancel half a trillion dollars

in loan principal as the Secretary attempts to do here.

In fact, the Executive appears to have ignored

these statutory limits because of politics. For nearly

two years, President Biden failed to deliver on a

campaign promise to cancel vast amounts of student

debt.3 During that period, President Biden, Speaker

Pelosi, and other leaders admitted that the President

could not do it alone; rather, Congress needed to pass

a law. See, e.g., President Joseph R. Biden, Remarks

by President Biden in a CNN Town Hall with

Anderson Cooper (Feb. 16, 2021), bit.ly/3Qzg9LN (“I

don’t think I have the authority to do it by signing the

pen.”); Speaker of the House Nancy Pelosi, Transcript

of Pelosi Weekly Press Conference Today (July 28,

2021), bit.ly/3QzglL1 (“People think that the

President of the United States has the power for debt

forgiveness. He does not. He can postpone. He can

delay. But he does not have that power. That has to

be an act of Congress.”). But by the summer of 2022,

the Biden Administration had exhausted its

legislative efforts and recognized that Congress would

not adopt the President’s unbalanced proposal. So,

with

the

midterm

elections

looming,

the

Administration gambled that it might wrest the

See, e.g., Joe Biden (@JoeBiden), Twitter (Mar. 22, 2020, 7:28

PM), bit.ly/3W2DK8z.

3

6

legislative power away from Congress and rewrite

Title IV for nearly all of the 45 million borrowers with

federal student loans.

The Secretary’s unilateral action was patently

unlawful. The HEROES Act does not provide the sort

of “clear authorization required by [this Court’s]

precedents” for such an enormously expensive and

consequential action. West Virginia v. EPA, 142 S. Ct.

2587, 2614 (2022). The text does not authorize the

cancellation of loan principal. And even if it did,

millions of covered borrowers did not suffer any

financial hardship at all due to the COVID-19

pandemic. To the contrary, many remained employed

while also receiving subsidies from local, state, and

federal authorities, including the suspension of the

accrual of interest and payment obligations on these

very same loans. The idea that outright cancellation

is somehow “necessary” to prevent a waning pandemic

from causing these 40-million-plus borrowers to be

“worse” off on their student loans defies reality.

The Cancellation Program also violates the

President’s duties under the Take Care Clause.

Article II obliges the President to “take Care that the

Laws be faithfully executed.” U.S. Const. art. II, § 3.

That constitutional duty requires the Executive to

faithfully collect on obligations owed to the Treasury

and prohibits forgiving such obligations except for

reasons expressly authorized by Congress. Yet the

metes and bounds of the Cancellation Program

represent the policies of the Biden Administration, not

the policies embodied in any act of Congress. The

President is not a king, and he has no power to

dispense with the lawful acts of the legislature.

7

Though the Administration has structured, and

even amended, the Cancellation Program in a cynical

effort to avoid judicial scrutiny of its arrogation of

legislative power, those efforts should not succeed.

This Court should “hold unlawful and set aside” the

Cancellation Program, 5 U.S.C. § 706(2), and by doing

so, protect the federal fisc and reaffirm the

constitutional separation of powers.

STATUTORY BACKGROUND

The Cancellation Program upends Congress’s

detailed and comprehensive scheme for subsidizing

higher education. Under Title IV of the Higher

Education Act of 1965, Congress has provided for two

basic forms of government financial assistance. The

first is grants, which do not need to be repaid. See 20

U.S.C. §§ 1070a–1070h. The second is loans, which

generally must be repaid in full and with interest. See

id. §§ 1071–1087-4, 1087a–1087ii.4

To mitigate Title IV’s impact on the Treasury and

American taxpayers, Congress has carefully limited

the use of grants. For instance, it has provided grants

for students who demonstrate exceptional financial

need, see id. §§ 1070a(b), 1070b-2(c), for students who

agree to pursue a career in teaching, see id. § 1070g2(b), and for students whose parents or guardians died

in the course of military service in Iraq or Afghanistan

after September 11, 2001, see id. § 1070h.

4 “[I]nterest rates and fees are generally lower for federal student

loans than private student loans.” Federal Student Aid, Interest

Rates and Fees for Federal Student Loans, bit.ly/3GCfYuJ (last

visited Feb. 2, 2023).

8

Loans, by contrast, are more widely available.

Congress has provided for flexibility in how borrowers

repay these loans, in recognition of the financial

challenges that many borrowers face. See, e.g., id.

§§ 1077(a)(2), 1087e(d)–(f), 1087dd(c)(2)–(7), 1098e(b),

1098f, 1098bb(a).

But, to prevent loans from

effectively becoming grants, Congress has limited the

outright discharge of a loan’s principal to narrow and

detailed sets of circumstances. See id. §§ 1078-10,

1087j (loan forgiveness for teachers); id. § 1078-11

(loan forgiveness for service in areas of national need);

id. § 1078-12 (loan repayment for civil legal assistance

attorneys); id. §§ 1087(a), 1087dd(c)(1)(F) (loan

repayment or forgiveness for deceased or disabled

borrowers); id. § 1087(c) (discharge of loans due to

school’s closure or false eligibility certification); id.

§ 1087ee (loan forgiveness for certain public service);

id. § 1098e(b)(7) (discharge of loans following incomebased repayment program); see also 11 U.S.C.

§ 523(a)(8) (discharge of federal student loans in

bankruptcy authorized only if failure to do so “would

impose an undue hardship”).

Congress made difficult but deliberate choices

regarding when student loans may be forgiven. After

all, forgiving loans comes at a price that falls on the

public. Congress must offset any loan forgiveness by

increasing taxes, raising the national debt, or

reducing spending elsewhere.

And borrowers

voluntarily take out loans to invest in their future.

That investment often pays significant dividends,

with college graduates earning, on average, over

$25,000 more per year compared to those with a high

school diploma, while enjoying a 44% lower

unemployment rate. See Education pays, 2021, U.S.

9

Bureau

of

Labor

Statistics

(May

2022),

bit.ly/3GYZJJe. Where difficulties may arise for

particular borrowers, Congress accounted for them by

devising an income-based repayment program for

borrowers experiencing financial hardship. See 20

U.S.C. § 1098e(b). It also directed the Secretary, upon

the satisfaction of specified conditions, to “repay or

cancel any outstanding balance of principal and

interest due” on loans held by those who qualify for

that program. Id. § 1098e(b)(7).

The Secretary here did not invoke any provision

that allows for the discharge or cancellation of loans.

The HEROES Act permits the Secretary to “waive or

modify” provisions related to Title IV assistance as he

“deems necessary in connection with a war or other

military operation or national emergency”—but only

in specific circumstances “authorized by” statute. 20

U.S.C. § 1098bb(a)(1). One such circumstance—and

the one at issue here—is where the waiver or

modification is “necessary to ensure” that “affected

individuals are not placed in a worse position

financially in relation to” their loans “because of their

status as affected individuals.” Id. § 1098bb(a)(2)(A).

The HEROES Act does not contain any express

provision authorizing the discharge or forgiveness of

loan principal.

ARGUMENT

I.

The Cancellation Program Exceeds The

Executive’s Statutory Authority.

The statutory question in this case is simple: Does

the HEROES Act empower the Secretary to cancel

nearly half a trillion dollars in debt owed by millions

10

of willing borrowers, many of whom suffered no

financial hardship from the COVID-19 pandemic?

The answer is clearly no.

A. The Major Questions Doctrine Applies.

To start, “[w]here the statute at issue is one that

confers authority upon an administrative agency,” the

interpretive “inquiry must be ‘shaped, at least in some

measure, by the nature of the question presented’—

whether Congress in fact meant to confer the power

the agency has asserted.” West Virginia, 142 S. Ct. at

2607–08 (quoting FDA v. Brown & Williamson

Tobacco Corp., 529 U.S. 120, 159 (2000)). To that end,

the “major questions doctrine” calls for “skepticism”

before accepting extraordinary claims of regulatory

authority. Id. at 2614.

This Court “presume[s] that ‘Congress intends to

make major policy decisions itself, not leave those

decisions to agencies.’” Id. at 2609 (citation omitted).

That presumption rests on the understanding that

Congress will “speak clearly when authorizing an

agency to exercise powers of ‘vast economic and

political significance.’” Ala. Ass’n of Realtors v. HHS,

141 S. Ct. 2485, 2489 (2022) (per curiam) (quoting

Util. Air Reg. Grp. v. EPA, 573 U.S. 302, 324 (2014)).

And it simultaneously “operates to protect

foundational constitutional guarantees.”

West

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

By vesting “[a]ll legislative Powers” in Congress,

U.S. Const. art. I, § 1, the Framers believed that

“‘important subjects must be entirely regulated by the

legislature itself,’ even if Congress may leave the

Executive ‘to act under such general provisions to fill

11

up the details.’” West Virginia, 142 S. Ct. at 2617

(Gorsuch, J., concurring) (cleaned up) (quoting

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

(1825) (Marshall, C.J.)). The major questions doctrine

safeguards that constitutional division of authority,

preventing

agencies

from

seizing

“highly

consequential power beyond what Congress could

reasonably be understood to have granted.” Id. at

2609 (majority op.).

“[T]his is a major questions case” if there ever was

one. Id. at 2610. First, the Secretary has indisputably

asserted a “power[] of vast economic and political

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

(quotation marks omitted). The staggering price tag

of his action—roughly half a trillion dollars—dwarfs,

by an order of magnitude, what has sufficed to trigger

the major questions doctrine in the past. See id. ($50

billion). And for years, the propriety of student loan

forgiveness has “been the subject of an earnest and

profound debate across the country.” Gonzales v.

Oregon, 546 U.S. 243, 267 (2006) (quotation marks

omitted); see, e.g., Seung Min Kim & Marianna

Sotomayor, Biden signals he’s open to canceling

student loans, Washington Post (Apr. 26, 2022, 2:56

PM), bit.ly/3w1V3fp (“The issue of forgiving student

loans has long been politically fraught.”). Those

considerations alone should give the Court pause. See

NFIB, 142 S. Ct. at 665 (majority op.).

Moreover, the Secretary has “claim[ed] to discover”

in the HEROES Act an “unheralded power” to issue a

mass cancellation of student loan debt. Util. Air, 573

U.S. at 324. Until now, the Department of Education

“ha[d] never relied on the HEROES Act” for the

12

“blanket or mass cancellation, compromise, discharge,

or forgiveness of student loan principal balances.”

Memorandum from Reed D. Rubinstein, Principal

Deputy General Counsel, Department of Education, to

Betsy DeVos, Secretary of Education at 6 (Jan. 12,

2021), bit.ly/3H602Ca. Nor could it. “Congress never

intended the HEROES Act as authority for mass

cancellation.” Id. And the text and context of the Act

make that crystal clear. See infra Section I.B.

Equally troubling, the Secretary here claims

authority “to adopt a regulatory program that

Congress had conspicuously and repeatedly declined

to enact itself.” West Virginia, 142 S. Ct. at 2610.

Both before and after the pandemic, numerous bills

proposing similar, broad cancellation of student loans

were introduced.5 But none managed to pass through

the “single, finely wrought and exhaustively

considered, procedure” that our Constitution

demands. INS v. Chadha, 462 U.S. 919, 951 (1983).

That Congress “has considered and rejected bills

authorizing something akin” to the Cancellation

See, e.g., H.R. 6708, 117th Cong. (2022); H.R. 4797, 117th Cong.

(2021); H.R. 2034, 117th Cong. (2021); H.R. 8514, 116th Cong.

(2020); H.R. 6800, 116th Cong. § 150117(h) (2020); H.R. 6363,

116th Cong. (2020); S. 2235, 116th Cong. (2019); H.R. 3887, 116th

Cong. (2019); H.R. 3448, 116th Cong. (2019). Dozens of other bills

proposed more targeted loan forgiveness than the Secretary’s

indiscriminate program here. See Nat’l Ass’n of Student Fin. Aid

Admins., Legislative Tracker: Loans & Repayment, NASFAA,

bit.ly/3H4OKhH (last visited Feb. 2, 2023) (collecting bills from

117th Congress); Nat’l Ass’n of Student Fin. Aid Admins.,

Legislative Tracker Archive: Loans & Repayment, NASFAA,

bit.ly/3iBBvf1 (last visited Feb. 2, 2023) (collecting pre-117th

Congress bills).

5

13

Program shows that the Secretary has “attempt[ed] to

work around the legislative process to resolve for

[himself] a question of great political significance.”

West Virginia, 142 S. Ct. at 2621 (Gorsuch, J.,

concurring) (cleaned up) (citations omitted); see also

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579,

586 (1952) (recognizing that the seizure power “was

not only unauthorized by congressional enactment;

prior to this controversy, Congress had refused to

adopt that method of settling labor disputes”). Indeed,

when coupled with the President’s campaign promise,

and the conspicuous pre-election timing, that

conclusion is inescapable.

The Secretary suggests that the major questions

doctrine should not apply to cases involving

government benefits. See Pet. Br. at 48–49. But such

cases can pose the same “particular and recurring

problem” that the doctrine aims to address: “agencies

asserting highly consequential power beyond what

Congress could reasonably be understood to have

granted.” West Virginia, 142 S. Ct. at 2609 (majority

op.). This case proves the point. And, if anything,

Congress’s exclusive power to spend and forgive the

monies owed to the government should make this

Court even more reluctant to believe that it broadly

delegated that core legislative power here.

Despite the Secretary’s blinkered belief that

forgiving roughly half a trillion dollars will not

significantly affect the lives of others, see Pet. Br. at

49, that belief is simply untrue. Other Americans will

have to pick up the tab, to the tune of over $2,500 per

14

taxpayer.6 And the problems do not stop there. As

former Treasury Secretary Lawrence Summers has

explained, the Administration’s massive handout will

only exacerbate inflation, “consume[] resources that

could be better used helping those who did not, for

whatever reason, have the chance to attend college,”

and incentivize schools to “rais[e] tuitions” in the long

run for others.7

In short, “there is every reason to ‘hesitate before

concluding that Congress’ meant to confer on [the

Secretary] the authority [he] claims” under the

HEROES Act. West Virginia, 142 S. Ct. at 2610

(citation omitted). Whether to cancel almost half a

trillion dollars in debt for 40-million-plus borrowers is

a monumental decision that affects every American.

And “[t]he basic and consequential tradeoffs involved

in such a choice are ones that Congress would likely

have intended for itself.” Id. at 2613. Therefore, the

major questions doctrine applies.

B. Congress

Did

Not

Authorize

The

Secretary’s Cancellation Program, Let

Alone In Clear Terms.

Because this is a major questions case, the

Secretary “must point to ‘clear congressional

authorization’ for the power [he] claims.”

West

Lorie Konish, Student loan forgiveness could result in a $2,500

burden per taxpayer, research finds, CNBC (Sep. 2, 2022, 4:15

PM), bit.ly/3GKiYFr.

6

Eric Boehm, Biden’s Student Debt Relief Plan Will Worsen

Inflation, Reason (Aug. 24, 2022, 2:00 PM), bit.ly/3kf9WZi

(quoting former Secretary Summers).

7

15

Virginia, 142 S. Ct. at 2609 (quoting Util. Air, 573 U.S.

at 324). He cannot.

The HEROES Act permits the Secretary to “waive

or modify” certain student-loan-related provisions as

he “deems necessary in connection with a war or other

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

§ 1098bb(a)(1). Yet before he may do so, such waivers

or modifications must also be “authorized by” one of

the provisions contained in paragraph (a)(2). Id. As

relevant here, then, the Secretary’s actions must “be

necessary to ensure” that “affected individuals are not

placed in a worse position financially in relation to”

their loans “because of their status as affected

individuals.” Id. § 1098bb(a)(2)(A).

1.

The Cancellation Program violates

the plain text of the HEROES Act.

The Cancellation Program cannot be squared with

the text of the HEROES Act for at least three reasons.

First, the Secretary’s action is plainly unnecessary

to ensure that recipients “are not place[d] in a worse

position financially in relation to th[eir] financial

assistance.” Id. (emphasis added). After all, the

permanent discharge of principal places borrowers in

a better financial position in relation to their loans.

And the Secretary’s previous actions show that

cancellation is by no means “necessary”—i.e., needed

or required—to prevent borrowers from falling behind

their pre-pandemic loan positions. Id.; see MerriamWebster’s Collegiate Dictionary 828 (11th ed. 2003)

(defining “necessary” to mean “absolutely needed” or

“required”

(capitalization

altered));

American

Heritage College Dictionary 911 (3d ed. 1997)

16

(“Needed to achieve a certain result or effect;

requisite.”).8

Shortly after COVID-19 struck, then-Secretary

Betsy DeVos invoked the HEROES Act for the farmore modest action of suspending loan payments and

freezing the accrual of interest during the economic

dislocation

caused

by

government-mandated

shutdowns. See Federal Student Aid Programs, 85

Fed. Reg. 79,856, 79,862 (Dec. 11, 2020) (describing

March 20, 2020 action). One week later, Congress

ratified the Secretary’s action through September

2020 to protect borrowers and preserve the status quo.

See Coronavirus Aid, Relief, and Economic Security

Act, Pub. L. No. 116-136, § 3513(a)–(b), 134 Stat. 281,

404 (2020). After that term expired, the Secretary

“Necessary’s dictionary definitions reflect the word’s ordinary

meaning.” Vorchheimer v. Philadelphian Owners Ass’n, 903 F.3d

100, 106 (3d Cir. 2018) (Bibas, J.). When Congress wants to

“loosen the degree of necessity” to confer more discretion, it

ordinarily “uses the phrase ‘reasonably necessary,’” or another

modifier to that effect. Id. at 106–07 (citing Ayestas v. Davis, 138

S. Ct. 1080, 1093 (2018)). In fact, that is what it did elsewhere in

Title IV, including in the HEROES Act itself. See, e.g., 20 U.S.C.

§ 1087e(e)(1) (“reasonably necessary”); id. § 1087dd(k) (“as the

Secretary determines necessary” (emphasis added)); id.

§ 1098bb(a)(1) (“as the Secretary deems necessary” (emphasis

added)). Section 1098bb(a)(2) does not employ similar loosening

language. And contrary to the Secretary’s contention, its use of

the word “may” does not “exude[] deference.” See Pet. Br. at 36–

37 (citation omitted). After all, the provision deals with

unforeseen, transient events like war or national emergency.

Read in that context, “‘may’ signals not a low probability of

necessity, but rather the conditional mood.” Vorchheimer, 903

F.3d at 106.

The temporary “condition” created by the

emergency, “when met, makes the accommodation necessary, as

in the phrase ‘as the case may be.’” Id.

8

17

renewed the suspension of payments and accrual of

interest. See 85 Fed. Reg. at 79,857. And that freeze

has continued unabated, despite the economy having

fully reopened.

Whether or not the Secretary’s two-year freeze is

consistent with the HEROES Act in its own right, the

substantial relief already granted confirms the

Cancellation Program’s lack of necessity. Since the

start of the pandemic, borrowers have had the benefit

of years of protection from the need to make payments

and the accrual of interest. And those lesser measures

were more than capable of preventing borrowers from

falling behind on their student loans on account of the

national emergency. Thus, the Secretary’s drastic

step of permanently discharging principal is plainly

not “necessary” to achieve that same, modest statutory

goal. 20 U.S.C. § 1098bb(a)(2). The Secretary has

simply granted an unlawful windfall to millions of

borrowers across the country by administrative fiat.

Second, even if the HEROES Act permitted loan

forgiveness, the Cancellation Program is insufficiently

tailored to the ends prescribed by Congress. The

Secretary argues that the “vast majority” of borrowers

swept up in his Program qualify as “affected

individuals,” because they “‘reside[]’ or are ‘employed’”

in places “designated as COVID-19 disaster areas.”

Pet. Br. at 35 (alteration in original) (quoting 20

U.S.C. § 1098ee(2)(C)). But that is not enough. The

basic statutory question is still whether, absent the

Secretary’s action, those individuals would be worse

off “because of their status as affected individuals.” 20

U.S.C. § 1098bb(a)(2)(A) (emphasis added). Nobody

suggests that all—or even many—of the 40-million-

18

plus borrowers eligible for cancellation are worse off

on their loans simply because they lived and worked

somewhere in the United States during the COVID-19

pandemic. And certainly not to the degree that

cancellation is “necessary.”

The evidence shows that the overwhelming

majority of borrowers have not suffered any financial

hardship because of the pandemic. Nor will they in

the future. Our economy has long since reopened, and

the President claims it is even “stronger than before

the pandemic.” President Joseph R. Biden, Remarks

by President Biden on the December 2021 Jobs Report

(Jan. 7, 2022), bit.ly/3kjMj1C. At the same time,

college graduates disproportionately work in sectors

whose employees’ incomes were—and continue to be—

undisturbed by COVID-19. See Center on Budget and

Policy Priorities, Chart Book: Tracking the Recovery

From the Pandemic Recession, CBPP (Jan. 27, 2023),

bit.ly/3kbNUXj (“[J]ob losses among adults with a

bachelor’s degree or above were just 6.4 percent at

their worst in April 2020. As a group, these highly

educated adults had recovered all job losses as of July

2021, and in December 2022 their employment was 5.4

percent above February 2020.”). For these reasons,

the Secretary does not argue that a large number of

the 40-million-plus eligible borrowers—or even any of

those that live or work in the United States—“suffered

direct economic hardship as a direct result of” the

pandemic. 20 U.S.C. § 1098ee(2)(D); see Pet. Br. at 35

(invoking § 1098ee(2)(D) only for that “small fraction

of eligible borrowers” who “liv[e] and work[] abroad”).

The Secretary instead argues that he may ignore

this evidence, because he does not need to make

19

waivers on a “case-by-case basis.” Pet. Br. at 36

(quoting 20 U.S.C. § 1098bb(b)(3)). But that language

does not allow him to expand the statutorily defined

category of individuals for whom a waiver is

permitted. The Secretary still must meaningfully

tailor his waivers to those who would be worse off

“because of their status as affected individuals.” 20

U.S.C. § 1098bb(a)(2)(A). He has not even tried to do

that here. The Secretary’s decisions to arbitrarily cap

the relief available and to set income thresholds for

the Cancellation Program may reflect his view of good

policy. But they do not involve any real tailoring as to

who has been financially harmed by the COVID-19

pandemic.9

Third, the Cancellation Program is not “necessary

in connection with a . . . national emergency.” 20

U.S.C. § 1098bb(a)(1). The Secretary relied upon the

It is also telling that, in contrast with usual practice, the OLC

opinion upon which the Secretary relied does not actually analyze

the legality of the Cancellation Program itself. See Memorandum

from David J. Barron, Acting Assistant Attorney General, to

Attorneys of the Office, Best Practices for OLC Legal Advice and

Written Opinions at 2 (July 16, 2010), bit.ly/3DtLPNe. It instead

addresses general interpretive questions, and then opines that a

debt cancellation program “could,” theoretically, “be structured

as a permissible invocation of the [HEROES] Act.” 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). The opinion expresses no view

on how $430 billion in categorical loan forgiveness could truly

meet the requirements of the statute.

That the Biden

Administration does not appear to have asked OLC to review the

legality of its actual Cancellation Program speaks volumes,

particularly where the President himself had voiced serious

doubts over the legal power to cancel student loan debt.

9

20

purported ongoing emergency posed by COVID-19.

But the President had publicly declared weeks before

that “[t]he pandemic is over.” Kate Sullivan et al.,

Biden: ‘The pandemic is over,’ CNN (Sep. 18, 2022,

9:39 PM), bit.ly/3iEJLee. Before this Court, too, the

Administration has proclaimed that COVID-19 no

longer justifies pandemic-era measures that hamper

its immigration priorities, stating, ironically, that it is

constrained to follow the will of Congress. See Federal

Respondents’ Opposition to Application for a Stay

Pending Certiorari at 2–3, Arizona v. Mayorkas, No.

22A544 (U.S. Dec. 20, 2022) (“[T]he solution to th[e]

immigration problem cannot be to extend indefinitely

a public-health measure that all now acknowledge has

outlived its public-health justification. Instead, it is to

rely on the immigration laws Congress has

prescribed[.]”).

The White House’s public messaging further

demonstrates that it never viewed its indiscriminate

Cancellation Program as “necessary in connection

with” a national emergency.

Instead, the

Administration’s selective invocation of the waning

pandemic was patently pretextual. In its press

announcement, the White House emphasized the

President’s campaign promise and the economic

problems associated with rising tuition costs. See J.A.

117–31. But remarkably, the White House never

mentioned the supposedly “devastating economic

consequences” of COVID-19. Pet. Br. at 19. Not once.

This Court “cannot ignore the disconnect between the

decision made and the explanation given.” Dep’t of

Commerce v. New York, 139 S. Ct. 2551, 2575 (2019).

If rising tuition costs are a major problem, then

Congress must fix it. “But the current [tuition] crisis

21

is not a COVID crisis.” Arizona v. Mayorkas, 143

S. Ct. 478, 479 (2022) (Gorsuch, J., joined by Jackson,

J., dissenting). It does not support the Secretary’s

Cancellation Program.

2.

Statutory context confirms that the

Cancellation Program is unlawful.

In the end, the text of the HEROES Act is thrice

fatal to the Cancellation Program’s legality. And the

major questions doctrine layers “extra icing on [that]

cake already frosted.” Van Buren v. United States, 141

S. Ct. 1648, 1661 (2021) (citation omitted). But lest

any doubt remain, context further cements the

conclusion that Congress has not “plainly authorize[d]

the Secretary’s” action. NFIB, 142 S. Ct. at 665.

Take, for example, Title IV’s broader scheme.

When Congress wanted to authorize the forgiveness of

student loan debt, it did so explicitly. See, e.g., 20

U.S.C. §§ 1078-10, 1087(a), 1098e(b)(7).

That

Congress did not similarly do so here suggests that it

never meant for the HEROES Act to permit the

cancellation of principal. See Nat’l Ass’n of Mfrs. v.

Dep’t of Def., 138 S. Ct. 617, 631 (2018) (“Courts are

required to give effect to Congress’ express inclusions

and exclusions, not disregard them.”). And its choice

of language—authorizing measures only to prevent

individuals from becoming “worse” off “in relation to”

their loans—confirms that.

Similarly, throughout Title IV, Congress

repeatedly instructed the Secretary that he “shall”

forgive particular amounts of debt for certain

borrowers upon the satisfaction of defined conditions.

See, e.g., 20 U.S.C. §§ 1078-10(b)–(c), 1078-11(a)(1),

22

1078-12(c),

1087(a)(1),

1087(c)(1),

1087(d),

1087e(m)(1), 1087j(b), 1087dd(g)(1), 1087ee(a)–(b),

1098e(b)(7). In doing so, Congress chose not to leave

the critical cancellation choice to the Secretary’s

discretion; it wanted to make that decision itself. See

SAS Inst., Inc. v. Iancu, 138 S. Ct. 1348, 1354 (2018)

(“The

word

‘shall’

generally

imposes

a

nondiscretionary duty.”). The idea that Congress

sought to depart from that practice here, through the

“modest words” contained in the HEROES Act, is

simply implausible. West Virginia, 142 S. Ct. at 2609

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

457, 468 (2001)).

“The history of the” HEROES Act also “provides

important context for the issue in this case.” TC

Heartland LLC v. Kraft Foods Grp. Brands LLC, 581

U.S. 258, 263 (2017). At bottom, Congress enacted the

law in the wake of the September 11 attacks “to

support the members of the United States military

and provide assistance with their transition into and

out of active duty and active service.” 20 U.S.C.

§ 1098aa(b)(6). That explicit “focus[] on one problem”

is another “warning sign” that the Secretary “is acting

without clear congressional authority” in his attempt

“to solve a new and different problem” allegedly

caused by a pandemic—particularly because, as

explained above, the pandemic was never the true

basis for the Cancellation Program. West Virginia,

142 S. Ct. at 2623 (Gorsuch, J., concurring). It was

mere pretext to further a political end.

Finally, while the text of the statute is clear and

should be conclusive, “[t]he legislative history (for

those who consider it) confirms” that Congress meant

23

only to suspend obligations on student loans during

temporary military service or national emergencies—

not to forgive them altogether. Sturgeon v. Frost, 139

S. Ct. 1066, 1085 (2019). Members of Congress

wanted to protect borrowers from experiencing

“further financial difficulty generated when they are

called to serve.” 149 Cong. Rec. H2522, H2524 (daily

ed. Apr. 1, 2003) (statement of sponsor Rep. Kline).

And to do that, they wanted to enable our troops’ “loan

payments [to be] deferred until the[ir] return.” Id.

(statement of cosponsor Rep. Isakson) (emphasis

added); see also id. (“[T]he Secretary will have the

opportunity to forbear a loan as our servicemen and

servicewomen are activated, [and] this will allow them

not to pay on their student loans for the time that they

are active.” (statement of Rep. Ryan)); id. at H2524–

25 (“What we want to do here is to make it clear to the

Secretary that . . . he can, in fact, defer these

payments.” (statement of cosponsor Rep. Boehner)).

That is why Congress chose the language that it

did—to allow those whose lives were suddenly

disrupted from becoming “worse” off “in relation to”

their loans “because of their status as affected

individuals.” 20 U.S.C. § 1098bb(a)(2)(A). But the bill

went no further, and that is why it passed with near

unanimous support after little debate.10 Had the

uncontroversial bill delegated to the Secretary the

extraordinary power now claimed, surely that would

not have been the case.

The lone House dissenter clarified two days later that he too

“meant to vote ‘yea’ on [the] rollcall vote” for the bill. 149 Cong.

Rec. E663, E663 (Apr. 3, 2003) (statement of Rep. Miller).

10

24

* * *

In sum, the Secretary’s reading of the HEROES

Act is “not only unprecedented; it also effect[s] a

fundamental revision of the statute, changing it from

one sort of scheme” (preventing “affected individuals”

from becoming “worse” off due to emergency-induced

hardship) “into an entirely different kind” (conferring

windfalls upon nearly all borrowers across the

Nation). West Virginia, 142 S. Ct. at 2612 (cleaned up)

(citation omitted). “It strains credulity to believe that

this statute grants the [Secretary] the sweeping

authority that [he] asserts.” Ala. Ass’n of Realtors, 141

S. Ct. at 2486. That authority remains with Congress.

II.

The Cancellation Program Violates The

Take Care Clause.

In addition, the Cancellation Program flagrantly

disregards the Executive’s appropriate role under our

constitutional separation of powers. Rather than

collect the money owed to the Treasury as the law

requires, see 31 U.S.C. § 3711(a)(1) (requiring agency

heads

to

“try

to

collect

a

claim . . . for

money . . . arising out of the activities of” their duties),

the Executive has gone to the opposite extreme by

outright cancelling it. The Executive’s Cancellation

Program therefore embodies a policy that “is so

extreme as to amount to an abdication of its statutory

responsibilities.” Heckler v. Chaney, 470 U.S. 821, 833

n.4 (1985). Worse yet, the Administration’s action

violates the letter and spirit of the Constitution,

because the Take Care Clause imposes a duty on the

Executive to faithfully execute the law—not

unilaterally nullify it. The cancellation of nearly half

a trillion dollars of debt in contravention of the

25

applicable statutory scheme is the very opposite of

faithful execution.

A. The Take Care Clause Imposes An

Affirmative Obligation On The Executive

To Faithfully Execute The Law.

Article II of the Constitution vests “[t]he executive

Power” in the “President of the United States of

America,” U.S. Const. art. II, § 1, cl. 1, and directs that

the President “shall take Care that the Laws be

faithfully executed,” id. art. II, § 3. The Take Care

Clause expresses a constitutional imperative: It

imposes on the President a duty to faithfully carry out

the laws that Congress has enacted and constitutes an

important limitation on the independent discretion of

the Executive. No other constitutional provision

mandates that any branch execute a power in such a

specific manner. And certainly, no other requires a

different branch to do so “faithfully.” See 1 Samuel

Johnson, A Dictionary of the English Language (6th

ed. 1785) (unpaginated) (defining “faithfully” to mean

“[w]ith strict adherence to duty and allegiance” or

“[w]ithout failure of performance; honestly; exactly”).

In that way, the Take Care Clause elevates the

considered policy judgments of Congress over those of

the President.

Under our Constitution, “the

President’s power to see that the laws are faithfully

executed refutes the idea that he is to be a lawmaker.”

Youngstown Sheet & Tube Co., 343 U.S. at 587.

Rather, the President’s enumerated role when it

comes to legislation is simply “the recommending of

laws he thinks wise and the vetoing of laws he thinks

bad.” Id.

26

The Executive, of course, enjoys some discretion

with respect to the execution of federal law. See

Heckler, 470 U.S. at 831. But that discretion depends

upon the policies inherent to enforcing the acts of

Congress and does not confer upon the Executive the

discretion to adopt the policies that he would have

preferred Congress to have adopted. In other words,

executive “discretion encompasses the discretion not

to enforce a law against private parties; it does not

encompass the discretion not to follow a law imposing

a mandate or prohibition on the Executive Branch.” In

re Aiken Cnty., 725 F.3d 255, 266 (D.C. Cir. 2013)

(opinion of Kavanaugh, J.). As a result, the duty to

faithfully execute the laws bars the Executive from

pursuing policies at variance with those adopted by

Congress. See Heckler, 470 U.S. at 833 (recognizing

that the Executive may not “disregard legislative

direction in the statutory scheme”).

A contrary conclusion would “vest[] in the

President a dispensing power.” Kendall v. U.S. ex rel.

Stokes, 37 U.S. (12 Pet.) 524, 613 (1838). Yet the Take

Care Clause repudiates the Executive’s ability to

dispense with lawful acts of Congress. As this Court

has recognized, to “contend that the obligation

imposed on the President to see the laws faithfully

executed, implies a power to forbid their execution, is

a novel construction of the [C]onstitution, and entirely

inadmissible.” Id.; see also The Attorney General’s

Duty to Defend and Enforce Constitutionally

Objectionable Legislation, 4A Op. O.L.C. 55, 57 (1980)

(“The history of th[e] dispute [over the Stuart kings’

‘dispensing power’] was well known to the Framers of

the Constitution, and it is clear that they intended to

27

deny our President any discretionary power of the sort

that the Stuarts claimed.”).

B. The Cancellation Program Fails To Take

Care That The Law Is Faithfully Executed

As It Far Exceeds The Executive’s

Settlement Power.

The Department of Justice has long acknowledged

that the Take Care obligation fully applies to the

protection of the federal fisc and includes an obligation

to faithfully collect on the financial obligations owed

to the United States. See The Attorney General’s Role

as Chief Litigator for the United States, 6 Op. O.L.C.

47, 60 (1982). If anything, it applies with extra force

in this context, where Congress possesses exclusive

authority to control the federal purse strings. See, e.g.,

U.S. Dep’t of Navy v. Fed. Lab. Rels. Auth., 665 F.3d

1339, 1346–47 (D.C. Cir. 2012) (Kavanaugh, J.);

Consumer Fin. Prot. Bureau v. All Am. Check Cashing,

Inc., 33 F.4th 218, 225–32 (5th Cir. 2022) (Jones, J.,

concurring).

Congress has authorized the Executive in some

instances to settle outstanding debts owed to the

Treasury pursuant to its settlement power. See, e.g.,

United States v. S. Pac. Co., 259 U.S. 214, 235–36

(1922); 31 U.S.C. § 3711(a)(2). But where Congress

has conferred on the Executive the authority to

compromise or forgive monies owed to the Nation, the

Executive must do so based on the policies ingrained

in enforcement discretion and the underlying federal

statutes. See Angelus Milling Co. v. Comm’r, 325 U.S.

293, 296 (1945) (“Insofar as Congress has made

explicit statutory requirements, they must be

observed and are beyond the dispensing power of

28

[Executive] officials.”). Accordingly, the Executive

breaches the Take Care obligation when it forgives

monies owed to the United States beyond the scope

permitted by statute.

In an analogous setting, OLC has advised that the

Attorney General’s power to settle litigation—which

involves forgiving a debt potentially owed to the

United States—must abide by the policies adopted by

Congress. “The settlement power is sweeping, but the

Attorney General must still exercise her discretion in

conformity with her obligation to enforce the Acts of

Congress.” Authority of the United States to Enter

Settlements Limiting the Future Exercise of Executive

Branch Discretion, 23 Op. O.L.C. 126, 135 (1999)

(quotation marks omitted). Thus, “the considerations

and terms that inform and structure a settlement

must be traceable . . . to a discernible source of

statutory authority.” Id. at 137; see also The Attorney

General’s Role as Chief Litigator for the United States,

6 Op. O.L.C. at 60 (recognizing that the Attorney

General’s settlement authority is limited by express

statutory limitations and by “the duty imposed on the

President by Article II, § 3 of the Constitution to ‘take

Care that the Laws be faithfully executed’”). Although

the Attorney General may settle outstanding debts

based on the kinds of considerations that typically

govern the settlements of cases—such as enforcement

resources, litigation risk, and the ability to collect—

“[o]ther types of considerations that concern more

particular policy aims . . . generally must be rooted in

the purposes of the statutes.” 23 Op. O.L.C. at 138.

These same considerations apply with full force to

the Cancellation Program.

Here, Congress has

29

specifically charged the Secretary of Education with

the obligation to “try to collect a claim . . . for

money . . . arising out of the activities of” his duties.

31 U.S.C. § 3711(a)(1).

The Secretary’s general

authority to “compromise, waive, or release” student

loan obligations is not an unbounded license to

reformulate federal policy and rewrite Title IV, 20

U.S.C. § 1082(a)(6), but one that may only be exercised

consistent with the statutory program, see 3 U.S. Gen.

Accounting Office, Office of the General Counsel,

Principles of Federal Appropriations Law 14-75 (3d ed.

2008) (“[W]ithout a clear statutory basis, an agency

has no authority to forgive indebtedness or to waive

recovery.”).

When Congress has authorized the

Secretary to forgive student loans, it has done so

expressly by identifying specific groups of borrowers

eligible for loan cancellation. See supra Section I.B.2.

And Department regulations similarly restrict the

Secretary’s compromise authority to certain limited

circumstances. See 34 C.F.R. § 30.70(a); see also 31

C.F.R. § 902.2(a). Indeed, the Secretary recently

conceded that historically, the Department has

employed its settlement authority “on an

individualized, case-by-case basis.” Joint Resp. to

Court Order at 2, Sweet v. Cardona, No. 3:19-cv03674-WHA (N.D. Cal. Nov. 9, 2022).

Simply put, Congress has not vested the Secretary

with the plenary authority to forgive student debt that

is otherwise collectible and owed to the Treasury,

because of a “presidential policy,” much less a

secretarial policy, that has not been endorsed by

Congress. But that is precisely the authority that the

Executive claims here. The Cancellation Program

“does not direct that a congressional policy be executed

30

in a manner prescribed by Congress—it directs that a

presidential policy be executed in a manner

prescribed” by the Executive. Youngstown Sheet &

Tube Co., 343 U.S. at 588. As a result, the Executive

has failed in its constitutional duty to faithfully

execute the law, exploiting the end of a pandemic to

adopt policies at odds with those of the People’s

representatives in Congress.

The Cancellation

Program is contrary to law and the Constitution, and

reflects an unprecedented executive aggrandizement

of the fiscal powers vested exclusively in Congress.

Where the President has failed in his duty to faithfully

execute the law, it is the province and duty of the

Court to remind him of that obligation.

CONCLUSION

Amici respectfully urge this Court to hold unlawful

and set aside the Secretary’s Cancellation Program.

The district court’s judgment in Brown (No. 22-535)

should be affirmed, and the district court’s judgment

in Nebraska (No. 22-506) should be reversed.

Respectfully submitted,

BRIAN A. KULP

DECHERT LLP

CIRA CENTRE

2929 Arch Street

Philadelphia, PA 19104

STEVEN A. ENGEL

Counsel of Record

MICHAEL H. MCGINLEY

JUSTIN W. AIMONETTI

DECHERT LLP

1900 K Street, NW

Washington, DC 20006

(202) 261-3369

steven.engel@dechert.com

Counsel for Amici Curiae

February 3, 2023

APPENDIX

1a

LIST OF AMICI CURIAE

Senator John Barrasso

Senator Marsha Blackburn

Senator John Boozman

Senator Mike Braun

Senator Katie Boyd Britt

Senator Ted Budd

Senator Bill Cassidy

Senator John Cornyn

Senator Tom Cotton

Senator Kevin Cramer

Senator Mike Crapo

Senator Ted Cruz

Senator Steve Daines

Senator Joni Ernst

Senator Deb Fischer

Senator Lindsey Graham

Senator Chuck Grassley

Senator Bill Hagerty

Senator Josh Hawley

Senator John Hoeven

Senator Cindy Hyde-Smith

Senator Ron Johnson

Senator John Kennedy

Senator James Lankford

Senator Mike Lee

Senator Cynthia M. Lummis

2a

Senator Roger Marshall

Senator Mitch McConnell

Senator Jerry Moran

Senator Markwayne Mullin

Senator Pete Ricketts

Senator James E. Risch

Senator Mitt Romney

Senator Mike Rounds

Senator Marco Rubio

Senator Rick Scott

Senator Tim Scott

Senator Dan Sullivan

Senator John Thune

Senator Thom Tillis

Senator Tommy Tuberville

Senator Roger F. Wicker

Senator Todd Young