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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No. 22-506

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IN THE

Supreme Court of the United States

____________________

JOSEPH R. BIDEN, PRESIDENT OF THE UNITED STATES,

ET AL., Petitioners,

NEBRASKA, ET AL., Respondents.

____________________

On Writ of Certiorari before Judgment

to the United States Court of Appeals

for the Eighth Circuit

____________________

Brief Amicus Curiae of

Citizens United,

Citizens United Foundation, and

The Presidential Coalition, LLC

in Support of Respondents

____________________

MICHAEL BOOS

DANIEL H. JORJANI

CITIZENS UNITED

1006 Penn. Ave. S.E.

Washington, DC 20003

(202) 547-5420

RICK BOYER

INTEGRITY LAW FIRM

P.O. Box 10953

Lynchburg, VA 24506

(434) 401-2093

WILLIAM J. OLSON*

JEREMIAH L. MORGAN

ROBERT J. OLSON

WILLIAM J. OLSON, P.C.

370 Maple Ave. W., Ste. 4

Vienna, VA 22180

(703) 356-5070

wjo@mindspring.com

*Counsel of Record

Attorneys for Amici Curiae

February 3, 2023

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TABLE OF CONTENTS

Page

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

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

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . 6

ARGUMENT

THE CONSTITUTION GUARDS AGAINST

EXECUTIVE INTRUSIONS INTO LEGISLATIVE

POWER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

A. “Fill Up the Details” . . . . . . . . . . . . . . . . . . 8

B. The Non-Delegation Doctrine and the

Intelligible Principle Exception . . . . . . . . 15

II. THE DEPARTMENT OF EDUCATION’S LOAN

CANCELLATION PROGRAM IS UNPRECEDENTED

AND NOT AUTHORIZED BY THE HEROES ACT . . . 19

A. The Secretary Has No Authority to

Cancel Student Debt under the HEROES

Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

There is no qualifying national

emergency . . . . . . . . . . . . . . . . . . . . . . 19

The Secretary has no authority to

“waive” entire loans for entire

classes of borrowers . . . . . . . . . . . . . . 22

B. The Unprecedented Nature of the

Program Demonstrates that It Is Not

Statutorily Authorized . . . . . . . . . . . . . . . 23

C. If the Waiver Program Is Found to Be

Statutorily Authorized, the HEROES Act

Is an Unconstitutional Delegation of

Legislative Power . . . . . . . . . . . . . . . . . . . 25

III. THE EXECUTIVE BRANCH’S REPEATED

ATTEMPTS TO USURP LEGISLATIVE POWER

REQUIRE GUIDANCE FROM THIS COURT . . . . . . 26

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

iii

TABLE OF AUTHORITIES

Page

U.S. CONSTITUTION

Art. I, sec. 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Art. I, sec. 9, cl. 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

STATE CONSTITUTIONS

Ga. Const. of 1777, art. I . . . . . . . . . . . . . . . . . . . .

Ky. Const. of 1792, Art. I, Sections 1 and 2 . . . . .

Mass. Const. of 1780, pt. 1, art. XXX . . . . . . . . . .

Va. Const. of 1776 . . . . . . . . . . . . . . . . . . . . . . . . .

Vt. Const. of 1786, Ch. II, Sec. VI . . . . . . . . . . . . .

STATUTES

11 U.S.C. § 523(a)(8) . . . . . . . . . . . . . . . . . . . . . . . 25

20 U.S.C. § 1087 . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

20 U.S.C. § 1087e . . . . . . . . . . . . . . . . . . . . . . . . . . 25

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

20 U.S.C. § 1098bb . . . . . . . . . . . . . . . . . . . 4,19,20,22

20 U.S.C. § 1098cc . . . . . . . . . . . . . . . . . . . . . . . . . 25

Higher Education Relief Opportunities

for Students Act of 2003,

Pub. Law No. 108-76 . . . . . . . . . . . 2,3,19-22,26

CASES

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

(2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

DOT v. Ass’n of Am. R.R., 575 U.S. 43 (2015) . 17,18

Gundy v. United States, 139 S. Ct. 2116

(2019) . . . . . . . . . . . . . . . . . . . . . . . . . . 7,18,28,29

J. W. Hampton, Jr., & Co., v. United States,

276 U.S. 394 (1928) . . . . . . . . . . . . . . . . . . . . . 15

Marbury v. Madison, 5 U.S. 137 (1803) . . . . . . . . 29

Mashall Field & Co. v. Clark, 143 U.S. 649

(1892) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

MCI Telecommunications Corp. v. Am. Tel. &

Tel. Co., 512 U.S. 218 (1994) . . . . . . . . . . . . 22,25

Nat’l Fed’n of Indep. Bus. v. OSHA,

142 S. Ct. 661 (2022) . . . . . . . . . . . . . . . 21,23,27

Third Nat’l Bank in Nashville v. Impac Ltd.,

432 U.S. 312 (1977) . . . . . . . . . . . . . . . . . . . . . 21

Wayman v. Southard, 23 U.S. 1 (1825) . . . . . . . . 8,26

West Virginia v. EPA, 142 S. Ct. 2587

(2022) . . . . . . . . . . . . . . . . . . . . . . . . . 24,25,27,28

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

457 (2001). . . . . . . . . . . . . . . . . . . . . . . . . . 6-8,17

MISCELLANEOUS

1 Annals of Cong. 789 (1789) (Joseph Gales ed.,

1834) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10,11

8 Annals of Cong. 2007-2008 (1798) . . . . . . . . . . . 12

21 Annals of Cong. 2022 (1810) . . . . . . . . . . . . . . . 12

31 Annals of Cong. 1144 (1818) . . . . . . . . . . . . . . . 13

J. Biden, “Joe Biden Outlines New Steps to Ease

Econimic Burden on Working People”

Medium.com (Apr. 9, 2020) . . . . . . . . . . . . . . . . 5

Cong. Globe, 27th Cong., 2nd Sess. 510 (1842). . . 13

149 Cong. Rec. H2553–54 (Apr. 1, 2003). . . . . . . . 20

149 Cong. Rec. S10866 (July 31, 2003) . . . . . . . . . 20

149 Cong. Rec. E663 (Apr. 3, 2003) . . . . . . . . . . . . 20

Congressional Research Service, “Statutory

Basis for Biden Administration Student

Loan Forgiveness,” (Sept. 13, 2022) . . . . . . . 4,23

Jonathan Elliot, ed., 4 The Debates in the

Several State Conventions, on the Adoption

of the Federal Constitution . . . . . . . . . . . . . . . 11

Federalist No. 47, G. Carey & J. McClellan, The

Federalist Papers (Liberty Fund: 2000) . . . . . 6,9

Federalist No. 51, G. Carey & J. McClellan, The

Federalist Papers (Liberty Fund: 2000) . . . . 9,10

K. Heath, “Here’s a list of the 31 national

emergencies that have been in effect for

years,” ABC News (Jan. 10, 2019). . . . . . . . . . 21

J. Hood, “Before There Were Mouseholes:

Resurrecting the Non-Delegation Doctrine,”

30 BYU J. Pub. L. 142 (2015-2016). . . . . . 10, 15

H.R. 6800, 116th Cong. § 150117 (2020) . . . . . . . . 25

J. Locke, Two Treatises of Government

(Laslett, ed. 1963) . . . . . . . . . . . . . . . . . . . . . . . 9

James Madison, Report of the Committee to

Whom Were Referred the Communications

of Various States ... Concerning the Alien

and Sedition Laws (1799) . . . . . . . . . . . . . . . . 12

B. McCaughey, “Student-loan forgiveness is

Biden’s ‘Hail Mary’ pass to buy votes,” New

York Post (Aug. 25, 2022) . . . . . . . . . . . . . . . . . 5

N. Pelosi Press Release, Transcript of Pelosi

Weekly Press Conference Today

(July 28, 2021) . . . . . . . . . . . . . . . . . . . . . . . . . 24

Scalia & Garner, Reading Law

(Thomson West: 2012) . . . . . . . . . . . . . . . . . . . 21

W. Olson & A. Woll, “Executive Orders and

National Emergencies: How Presidents

Have Come to “Run the Country” by

Usurping Legislative Power,” Cato

Institute (Oct. 28, 1999) . . . . . . . . . . . . . . . . . . 20

M. Stratford and E. Daniels, “How Biden finally

got to ‘yes’ on canceling student debt,”

Politico (Aug. 25, 2022) . . . . . . . . . . . . . . . . 23,24

C. Sunstein, “Nondelegation Canons,” 67 CHI.

L. REV. 315 (2000) . . . . . . . . . . . . . . . . . . . . 16,17

R. Emmett Tyrrell, Jr., “Biden buys the vote

with student loan forgiveness,” Washington

Times (Aug. 30, 2022) . . . . . . . . . . . . . . . . . . . . 5

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

“Use of the Heroes Act of 2003 to Cancel

the Principal Amounts of Student

Loans”. . . . . . . . . . . . . . . . . . . . . . . . . 20,23,25,26

INTEREST OF THE AMICI CURIAE1

Citizens United is a nonprofit social welfare

organization, exempt from federal income tax under

Internal Revenue Code (“IRC”) section 501(c)(4).

Citizens United Foundation is a nonprofit educational

and legal organization, exempt from federal income tax

under IRC section 501(c)(3). These organizations were

established, inter alia, to participate in the public

policy process, including conducting research, and

informing and educating the public on the proper

construction of state and federal constitutions, as well

as statutes related to the rights of citizens, and

questions related to human and civil rights secured by

law. The Presidential Coalition, LLC is a political

committee under IRC section 527.

These amici are dedicated to restoring government

to the people through a commitment to limited

government, federalism, individual liberty, and free

enterprise. Citizens United and Citizens United

Foundation regularly participate as litigants (e.g.,

Citizens United v. Fed. Election Comm’n, 558 U.S. 310

(2010)) and amici in important cases in which these

legal principles are at stake. The Presidential

Coalition has filed amicus briefs in numerous similar

cases.

It is hereby certified that no counsel for a party authored this

brief in whole or in part; and that no person other than these

amici curiae, their members, or their counsel made a monetary

contribution to its preparation or submission.

STATEMENT OF THE CASE

On August 24, 2022, at the direction of President

Biden, the Department of Education announced that

it would cancel “up to $20,000 in [federal student loan]

debt [for] Pell Grant recipients with loans held by the

Department and up to $10,000 ... to non-Pell Grant

recipients ... [whose] individual income was less than

$125,000 or $250,000 for households in 2020 or 2021.”2

Nebraska v. Biden, 2022 U.S. Dist. LEXIS 191616, *67 (E.D. Mo. 2022). The Department asserted this loan

cancellation was authorized by the “Higher Education

Relief Opportunities for Students Act of 2003”

(“HEROES Act”), which allows waiver of student debt

“‘in connection with a war or other military operation

or national emergency.’” Id. at *4. The national

emergency relied on was the COVID virus. Id. at *6.

In September 2022, Nebraska, Missouri, Arkansas,

Iowa, Kansas, and South Carolina (the “Plaintiff

States”) filed suit in the Eastern District of Missouri,

seeking declaratory and injunctive relief “alleging the

Department’s student debt relief plan contravenes the

separation of powers and violates the Administrative

Procedure Act because it exceeds the Secretary’s

statutory authority and is arbitrary and capricious.”

Id. at *3. As to standing, the States alleged they

would incur costs from the States’ student debt

Education Dept. Press Release, “Biden-Harris Administration

Announces Final Student Loan Pause Extension Through

December 31 and Targeted Debt Cancellation to Smooth

Transition to Repayment” (Aug. 24, 2022).

servicing programs, and four states would suffer loss

of future tax revenue. Id. at *20-21.

The district court concluded that the Plaintiff

States lacked standing and dismissed all counts of the

complaint. Id. at *21-22. On November 14, 2022, the

Eighth Circuit disagreed, finding that injury to

Missouri’s student loan agency did in fact constitute

injury to the state, and that therefore Missouri had

standing and granted a nationwide injunction to

preserve the status quo pending appeal. Nebraska v.

Biden, 52 F.4th 1044, 1047-48 (8th Cir. 2022).

The Department of Education asked this Court to

vacate the Eighth Circuit’s injunction, based on

standing and asserting that the loan cancellation plan

was authorized by the HEROES Act, and was neither

arbitrary nor capricious. The Department asked that,

if this Court should not stay the injunction, it would

construe the application as a petition for a writ of

certiorari before judgment. On December 1, 2022, this

Court denied the stay but granted certiorari to

consider “the questions presented in the application.”

Biden v. Nebraska, 143 S. Ct. 477 (2022).

STATEMENT

The challenged Biden student loan cancellation

program (“the Program”) constitutes a massive

Executive Branch expenditure of federal funds which

was never appropriated by Congress. Respondent

States calculate the Program “costs taxpayers more

than a half-trillion dollars over ten years.” Brief for

the Respondents at 31. In both type and scope, this

waiver was completely unlike any prior exercise of the

HEROES Act,3 as it cancels completely up to $10,000

in student debt owed by 20 million Americans, while

significantly reducing the debt of another 20 million

persons.4

The federal government operates a massive

student loan program under the auspices of the Higher

Education Act of 1965 (“ HEA”). In 2003, following the

terrorist attacks of September 11, 2001, Congress

passed the Higher Education Relief Opportunities for

Students (HEROES) Act of 2003, Pub. Law No. 108-76.

The Act granted the Secretary of Education authority

to “waive or modify” certain administrative provisions

of the HEA, to allow it to defer student loan

repayments by active duty military members. The Act

also could be triggered to benefit “affected individuals”

in time of “war or ... national emergency.” 20 U.S.C.

§ 1098bb.

Considering that the Biden student loan

forgiveness program was totally unprecedented, it is

significant to consider its timing. It came in August

2022 of a Congressional election year where most

pundits were expecting a “red wave.” That wave never

materialized, and there may be some good,

old-fashioned political reasons that Republicans were

See Congressional Research Service, “Statutory Basis for Biden

Administration Student Loan Forgiveness,” (Sept. 13, 2022).

The White House, “Fact Sheet: President Biden Announces

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

2022).

disappointed. One commentator described the loan

forgiveness program in unvarnished terms:

“Supposedly President Joe Biden’s popularity went up

last week. How did he achieve this feat, raising his

popularity from 32% to the low 40s? He did it the

old-fashioned way. Joe bought the votes of 20 million

students who have been stupid enough to take out

usually catastrophically burdensome student loans.”

R. Emmett Tyrrell, Jr., “Biden buys the vote with

student loan forgiveness,” Washington Times (Aug. 30,

2022). The November 2022 Congressional election

thus was the second federal election cycle in which

student loan forgiveness was dangled before young

voters, candidate Biden having promised similar

student loan relief before the 2020 Presidential

election.5

Former New York Lieutenant Governor Betsy

McCaughey described the scheme as follows:

“College-debt forgiveness is President Biden’s Hail

Mary pass to buy votes and avoid a disastrous rout in

the midterm elections. But after the votes are

counted, the scheme is likely to collapse.”

McCaughey, “Student-loan forgiveness is Biden’s ‘Hail

Mary’ pass to buy votes,” New York Post (Aug. 25,

2022). As McCaughey predicted, it took until midNovember for the Eighth Circuit to enjoin the

program, and what the courts would do after the

election with the loan forgiveness scheme was of much

less consequence — politically, but not

constitutionally.

J. Biden, “Joe Biden Outlines New Steps to Ease Economic

Burden on Working People,” Medium.com (Apr. 9, 2020).

This Court granted certiorari to address the

questions set out by Petitioners: “(1) whether

respondents have Article III standing, and (2) whether

the plan exceeds the Secretary’s statutory authority or

is arbitrary and capricious.” Application at 38.

In considering the second question, these amici

urge this Court to take note that executive usurpations

of legislative authority are occurring with great

frequency, and thus should reconsider its

constitutional jurisprudence with regard to the

Nondelegation Doctrine. The student loan forgiveness

program provides an excellent opportunity for the

Court to accept the invitation of Justice Thomas to

“address the question whether our delegation

jurisprudence has strayed too far from our Founders’

understanding of separation of powers,” and to

“reconsider [this Court’s] precedents on cessions of

legislative power.” Whitman v. Am. Trucking Ass’ns,

531 U.S. 457, 487 (2001) (Thomas, J., concurring).

SUMMARY OF ARGUMENT

To limit exercises of what they often termed

arbitrary governmental power, the Framers fashioned

a multitude of structural guardrails. Among these,

James Madison elevated separation of powers to the

highest level of importance, stating “[n]o political truth

is certainly of greater intrinsic value, or is stamped

with the authority of more enlightened patrons of

liberty.” Federalist No. 47, G. Carey & J. McClellan,

The Federalist Papers (Liberty Fund: 2000) at 249.

Certainly all Executive Branch actions which

intrude on the legislative function need to be

scrutinized to determine whether they were authorized

by prior congressional action. However, because the

spending power is so clearly vested exclusively in

Congress (Art. I, sec. 9, cl. 7), any unilateral Executive

Branch action that depletes the public fisc should be

inherently suspect.

In 2001, this Court reaffirmed the nondelegation

doctrine, as modified by the “intelligible principle” test:

“This text permits no delegation of those powers, and

so we repeatedly have said that when Congress confers

decisionmaking authority upon agencies Congress

must ‘lay down by legislative act an intelligible

principle to which the person or body authorized to

[act] is directed to conform.’” Whitman at 472 (citation

omitted). Although these two rules have coexisted for

decades, it has become increasingly clear that the

“intelligible principle” exception has swallowed the

“nondelegation” rule. The Biden Administration hopes

this Court will continue to allow yet another executive

usurpation — even at the cost of a half trillion dollars.

Justice Gorsuch put his finger on the reason that

the non-delegation doctrine should be revitalized:

“enforcing the separation of powers [is] about

respecting the people’s sovereign choice to vest the

legislative power in Congress alone. And it’s about

safeguarding a structure designed to protect their

liberties, minority rights, fair notice, and the rule of

law.” Gundy v. United States, 139 S. Ct. 2116, 2135

(2019) (Gorsuch, J., dissenting).

For these and other reasons, these amici urge the

Court to take Justice Thomas’ cautionary note in his

Whitman concurrence, to revisit whether this Court’s

“intelligible principle” test has rendered the

nondelegation doctrine largely toothless, tearing down

the Constitution’s carefully crafted fence between the

legislative and executive functions.

ARGUMENT

THE CONSTITUTION GUARDS AGAINST

EXECUTIVE INTRUSIONS INTO

LEGISLATIVE POWER.

After the issue of standing (which is not addressed

by these amici) the central question in this case is

whether the Department of Education’s loan

forgiveness program was an authorized executive

branch implementation of a power properly delegated

by Congress. How such challenges are to be resolved

has changed over time.

A. “Fill Up the Details.”

The scope of executive branch authority to

implement legislation was addressed by Chief Justice

John Marshall in 1825, declaring “[i]t will not be

contended that Congress can delegate to the Courts, or

to any other tribunals, powers which are strictly and

exclusively legislative,” but other branches are allowed

to “act under such general provisions to fill up the

details.” Wayman v. Southard, 23 U.S. 1, 42-43

(1825) (emphasis added). Justice Marshall’s test

appears to have been designed to ensure the executive

had just enough discretionary power to implement (or

execute) a law, but no more, thereby protecting the

Constitution’s vesting of “[a]ll legislative Powers

herein granted” to Congress. Art. I, sec. 1 (emphasis

added).

The “fill up the details” limitation appears to have

been consistent with John Locke’s view that no

legislative power, which itself is derived from the

people, can then be transferred on to others:

The power of the legislative being derived

from the people by a positive voluntary

grant and institution, can be no other than

what that positive grant conveyed, which

being only to make laws, and not to make

legislators, the legislative can have no power

to transfer their authority of making laws, and

place it in other hands. [J. Locke, Two

Treatises of Government at 408-09 (Laslett,

ed. 1963) (emphasis added).]

None of the Framers had any tolerance for any

delegation of legislative power. If actual legislative

power were to be transferred to the executive, it could

bring on the tyranny that Montesquieu sought to avoid

by separating powers. “‘When the legislative and

executive powers are united in the same person or

body ... there can be no liberty, because apprehensions

may arise lest the same monarch or senate should

enact tyrannical laws, to execute them in a tyrannical

manner.” Federalist No. 47. This view was reinforced

by James Madison in Federalist No. 51, where he

writes, “that separate and distinct exercise of the

different powers of government ... is admitted on all

hands to be essential to the preservation of liberty.”

During the Constitutional Convention’s debate,

Madison and Charles Pinckney proposed specific

language granting the executive the “power to carry

into effect national laws ... and to execute such other

powers ‘not Legislative nor Judiciary in their nature,’

as may from time to time be delegated by the national

Legislature.”6 “The words ‘not legislative nor judiciary

in their nature’ were added to the proposed

amendment in consequence of a suggestion by General

Pinckney that improper powers might otherwise be

delegated.” Id. In the end, the Convention deleted the

language as unnecessary. “Yet, we are left with the

unanimous record that ... all believed the exercise of

non-executive power improperly delegated by the

legislature to be prohibited.” Id. at 142-143.

In 1789, Madison proposed adding an amendment

to ensure each branch of government stayed within its

own lane:

The powers delegated by this constitution to

the Government of the United States, shall be

exercised as therein appropriated, so that the

Legislative shall not exercise the powers

vested in the Executive or Judicial; nor the

Executive the power vested in the Legislative

J. Hood, “Before There Were Mouseholes: Resurrecting the

Non-Delegation Doctrine,” 30 BYU J. PUB. L. 142 (2015-2016)

(emphasis added).

or Judicial; nor the Judicial the powers vested

in the Legislative or Executive.7

Madison’s amendment convincingly passed the

House of Representatives, but was defeated in the

Senate. Id. at 761. But the reason for its defeat was

not a lack of recognition by the Founders that the

Constitution reserved legislative power to Congress.

Indeed, both the amendment’s critics and Madison

himself viewed the amendment as unnecessary and

duplicative, because the Constitution’s text so clearly

already reserved legislative power to Congress.8

In a 1790 debate, Rep. Gerry argued, “If the

legislature ... have [a power], it is a legislative power,

and they have no right to transfer the exercise of it to

any other body.”9

The need to prevent any delegation of legislative

power to the executive was addressed and reaffirmed

repeatedly through the nation’s first century. Some

illustrations prove this point.

1 Annals of Cong. 789 (1789) (Joseph Gales ed., 1834).

Id. at 760.

Jonathan Elliot, ed., 4 The Debates in the Several State

Conventions, on the Adoption of the Federal Constitution: As

Recommended by the General Convention at Philadelphia, in

1787. Together with the Journal of the Federal Convention,

Luther Martin’s Letter, Yates’ Minutes, Congressional Opinions,

Virginia and Kentucky Resolutions of ’98-’99, and Other

Illustrations of the Constitution at 404 (Taylor & Maury 1854)

(statement of Rep. Gerry) (Aug. 1, 1790).

The Alien and Sedition Acts were denounced for,

among other transgressions, the unconstitutional

delegation of legislative power.

Rep. Edward

Livingston decried the Acts, arguing that under the

Alien Act, “the President alone is empowered to make

the law, to fix in his own mind what acts, what words,

what thoughts or looks, shall constitute the crime

contemplated by the bill....

This, then, comes

completely within the definition of despotism — an

union of Legislative, Executive, and Judicial powers.”10

A Virginia General Assembly report denounced the

Acts, noting that “[i]f nothing more were required ...

than a general conveyance of authority, without

laying down any precise rules it would follow, that the

power of legislation might be transferred by the

legislature from itself,” and would be

“unconstitutional.”11

In 1810, an amendment was proposed to an

embargo bill to allow the President to employ “public

armed vessels” to protect overseas commerce, and to

“‘issue instructions ... for the government of the ships

which may be employed in that service.’” Rep. John

Jackson (a future federal judge) objected on

nondelegation grounds, and the amendment was

defeated by a 2-1 margin.12

8 Annals of Cong. 2007-2008 (1798).

James Madison, Report of the Committee to Whom Were

Referred the Communications of Various States ... Concerning the

Alien and Sedition Laws (1799).

See 21 Annals of Cong. 2022 (1810) (“It seems to me with equal

constitutionality we might refer to the President the authority of

In an 1818 floor debate, Virginia Rep. Alexander

Smyth argued, “[l]egislative power, when granted, is

not transferable; nor can it be exercised by substitute;

nor in any other manner than according to the

constitution granting it.”13

In 1842, a proposal was introduced in Congress to

allow executive branch officials to issue “rules and

regulations” with criminal sanctions that, unless

Congress repealed them, “[would] be the law of the

land.” Rep. John Quincy Adams objected that the

proposal was an unconstitutional delegation, and the

proposal was quickly withdrawn.14

Early state constitutions contain express

nondelegation provisions, including those of

declaring war, levying taxes, or of doing everything which the

Constitution points out as the duty of Congress. All legislative

power is by the Constitution vested in Congress. They cannot

transfer it.”).

31 Annals of Cong. 1144 (1818).

See Cong. Globe, 27th Cong., 2nd Sess. 510 (1842).

Massachusetts,15 Virginia,16 Georgia,17 Vermont,18 and

Kentucky.19 The constitutions of Maryland and North

Carolina similarly provided, “That the legislative,

Mass. Const. of 1780, pt. 1, art. XXX: “In the government of

this commonwealth, the legislative department shall never

exercise the executive and judicial powers, or either of them; the

executive shall never exercise the legislative and judicial powers,

or either of them; the judicial shall never exercise the legislative

and executive powers, or either of them; to the end it may be a

government of laws, and not of men.”

Va. Const. of 1776: “The legislative, executive, and judiciary

department, shall be separate and distinct, so that neither

exercise the powers properly belonging to the other: nor shall any

person exercise the powers of more than one of them, at the same

time....”

Ga. Const. of 1777, art. I: “The legislative, executive, and

judiciary departments shall be separate and distinct, so that

neither exercise the powers properly belonging to the other.”

Vt. Const. of 1786, Ch. II, Sec. VI: “The legislative, executive,

and judiciary departments, shall be separate and distinct, so that

neither exercise the powers properly belonging to the other.” See

also G. Lawson and P. Granger, “The ‘Proper’ Scope of Federal

Power: A Jurisdictional Interpretation of the Sweeping Clause,”

43 DUKE L.J. 267 (1993).

Ky. Const. of 1792, Art. I, Sections 1 and 2: “1. The powers of

government shall be divided into three distinct departments, each

of them to be confided to a separate body of magistracy, to-wit:

those which are legislative to one, those which are executive to

another, and those which are judiciary to another. 2. No person,

or collection of persons, being of one of these departments, shall

exercise any power properly belonging to either of the others,

except in the instances hereinafter expressly permitted.”

executive and ... judicial powers ought to be forever

separate and distinct from each other.”20

B. The Non-Delegation Doctrine and the

Intelligible Principle Exception.

In 1892, this Court flatly declared “That Congress

cannot delegate legislative power to the President is a

principle universally recognized as vital to the

integrity and maintenance of the system of

government ordained by the Constitution.” Marshall

Field & Co. v. Clark, 143 U.S. 649, 692 (1892).

Yet, as government became bigger and the federal

budget became larger, there developed pressure on

courts to ignore the original plan and allow the growth

of the executive power. As a result, even before the

pressures on this Court from President Roosevelt and

his New Deal, this Court — while still paying

rhetorical homage to the nondelegation doctrine —

crafted a new test that over time has effectively

eviscerated the doctrine. “If Congress shall lay down

by legislative act an intelligible principle to which

the person or body authorized to fix such rates is

directed to conform, such legislative action is not a

forbidden delegation of legislative power.” J. W.

Hampton, Jr., & Co. v. United States, 276 U.S. 394,

409 (1928) (emphasis added). While the “intelligible

principle” standard has the sound of a legal principle,

it must be noted that it is neither grounded in the

constitutional text, nor is it a term with a meaning

J. Hood at 136-137.

developed at common law. Thus, it was no surprise

that over time various courts would give their own

meaning to these vague, indeed empty words.

From its beginning almost a century ago, the Court

repeatedly has allowed executive branch officials not

just to “fill in the details” as Justice Marshall

described their legitimate role, but to “write the laws”

— so long as they call them “regulations,” “rules,”

“guidance,” or the like, and can source them to some

statutory authorization.

Congress has demonstrated itself to be willing to

federalize every problem, and to use every excuse to

assume control over every aspect of American life,

including criminalizing areas that were to be left

exclusively to the States. Thus, Congress has been

complicit with the executive branch in the delegation

of legislative purpose. Actually, delegation suits the

political needs of Congress. When an agency issues a

popular regulation, a Congressman can claim credit for

authorizing it. When an agency issues an unpopular

regulation, the Congressman can explain to his

constituents that he was not responsible — it was

some bureaucrat. Thus, the intelligible principle has

not only elevated the executive branch over the

Congress, but it has also made it exceedingly difficult

for the American People to hold anyone in government

politically accountable even for major decisions that

affect their lives.

Professor Cass Sunstein, no opponent of executive

power, describes the United States Code as having

become “littered” with provisions authorizing

administrative agencies “to do whatever it thinks

best.” While he admits that may be an overstatement,

it is still true that the doctrine “is now merely a bit of

rhetoric.” Moreover, “[s]ince 1935, the Supreme Court

has not struck down an act of Congress on

nondelegation grounds, notwithstanding the existence

of a number of plausible occasions.” C. Sunstein,

“Nondelegation Canons,” 67 CHI. L. REV. 315 (2000).

In 2001, in a case finding that the “intelligible

principle” test was met, Justice Thomas stressed it

was an atextual test that could fail to guard against

executive usurpation of legislative power:

[T]he Constitution does not speak of

“intelligible principles.” Rather, it speaks

in much simpler terms: “All legislative Powers

herein granted shall be vested in a

Congress....” I am not convinced that the

intelligible principle doctrine serves to prevent

all cessions of legislative power. I believe that

there are cases in which the principle is

intelligible and yet the significance of the

delegated decision is simply too great for the

decision to be called anything other than

“legislative.” [Whitman at 487 (Thomas, J.,

concurring) (emphasis added).]

Addressing the issue again in 2015, Justice

Thomas explained that: “The Constitution does not

vest the Federal Government with an undifferentiated

‘governmental power.’ Instead, the Constitution

identifies three types of governmental power and, in

the Vesting Clauses, commits them to three branches

of Government.... These grants are exclusive.” DOT

v. Ass’n of Am. R.R., 575 U.S. 43, 67 (2015) (Thomas,

J., concurring). To this, Justice Alito succinctly set out

the reasons for the nondelegation rule:

The principle that Congress cannot delegate

away its vested powers exists to protect

liberty. Our Constitution, by careful design,

prescribes a process for making law, and

within that process there are many

accountability checkpoints.... It would dash

the whole scheme if Congress could give its

power away to an entity that is not

constrained by those checkpoints.

The

Constitution’s deliberative process was

viewed by the Framers as a valuable feature ...

not something to be lamented and evaded. [Id.

at 61 (Alito, J., concurring) (emphasis added).]

Then in 2019, an intelligible principle was found to

be sufficient, but the doctrine came under further

attack. In dissent, Justice Gorsuch provided a

sweeping review of the text, history, and tradition of

the nondelegation doctrine.

Gundy at 2134-35

(Gorsuch, J., dissenting). Justice Gorsuch proposed a

three-part test: “Does the statute assign to the

executive only the responsibility to make factual

findings? Does it set forth the facts that the executive

must consider and the criteria against which to

measure them? And most importantly, did Congress,

and not the Executive Branch, make the policy

judgments?” Id. at 2141 (Gorsuch, J., dissenting).

The case now before the Court provides yet

another opportunity for this Court to re-examine the

atextual intelligible principle test and discard it in

favor of a textually faithful approach.

II. THE DEPARTMENT OF EDUCATION’S

LOAN CANCELLATION PROGRAM IS

UNPRECEDENTED AND NOT AUTHORIZED

BY THE HEROES ACT.

A. The Secretary Has No Authority to

Cancel Student Debt under the HEROES

Act.

The HEROES Act authorizes the Secretary of

Education to “waive or modify” statutory provisions of

the Higher Education Act of 1965 under which the

federal student loan regime was created. See 20

U.S.C. § 1098bb. Under the HEROES Act, the

Secretary has limited statutory authority, to (1) “waive

or modify any statutory or regulatory provision

applicable to the student financial assistance

programs” when (2) “necessary in connection with a ...

national emergency” and (3) “necessary to ensure that

... recipients of student financial assistance ... who are

affected individuals are not placed in a worse position

financially in relation to that financial assistance

because of their status as affected individuals.” Id.

There is no

emergency.

qualifying

national

Congress enacted the HEROES Act in the wake of

the September 11, 2001 terrorist attacks, to assist

military personnel on active duty by allowing

deferment of loan payments, “for our nation’s defense.”

20 U.S.C. § 1098aa(b)(1)–(6). The Act passed by a 4211 vote in the House21 and a unanimous voice vote in

the Senate,22 giving no indication it authorized blanket

waivers of student debt.

Although the HEROES Act also contained

language allowing waiver of student debt “in

connection with a war or other military operation or

national emergency” (20 U.S.C. § 1098bb), that

provision had never previously been used to cancel

loans for all borrowers within a class.23 It certainly

does not apply to borrowers who are not “affected

individuals” due to a covered emergency. And, there is

no reason to believe that it could be triggered by the

numerous states of emergency in which America has

been continuously for decades.24

Almost completely unknown to Americans, as of

2019, America was technically under 31 active

“national emergencies” (e.g., assistance to Albanian

insurgents in Macedonia (2001), election corruption in

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

E663 (Apr. 3, 2003).

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

U.S. Dep’t of Justice, Office of Legal Counsel,“Use of the Heroes

Act of 2003 to Cancel the Principal Amounts of Student Loans.”

See W. Olson & A. Woll, “Executive Orders and National

Emergencies: How Presidents Have Come to ‘Run the Country’ by

Usurping Legislative Power,” Cato Institute (Oct. 28, 1999).

Belarus (2006), and election-related violence in the

Congo (2006).25 There has been no demonstration

below that a law enacted after 9-11 was designed to be

triggered by such evergreen emergency declarations.

Indeed, if those types of declarations triggered the

Heroes Act, it could be invoked at any time by any

President.

“It is a familiar principle of statutory construction

that words grouped in a list should be given related

meaning.” Third Nat’l Bank in Nashville v. Impac

Ltd., 432 U.S. 312, 322 (1977).26 As the term “national

emergency” is used within the phrase “war or other

military operation or national emergency,” it should

not be understood as providing blanket cancellation

authority for other types of national emergencies,

especially when congressional findings specify the

HEROES Act was intended to benefit active duty

military personnel. The DOE had “never before

adopted a broad ... regulation of th[at] kind.” Nat’l

Fed’n of Indep. Bus. v. OSHA, 142 S. Ct. 661, 666

(2022).

K. Heath, “Here’s a list of the 31 national emergencies that

have been in effect for years,” ABC News (Jan. 10, 2019).

Accord, Scalia & Garner, Reading Law §31, p.195 (Thomson

West: 2012).

The Secretary has no authority to

“waive” entire loans for entire classes

of borrowers.

The HEROES Act gives the Secretary authority to

“modify” — but not waive — his determination of

“‘annual adjusted family income’ … to reflect more

accurately the financial condition of” affected

individuals, (20 U.S.C. § 1098bb(a)(2)(C)), and the

calculation of refunds to schools “so that no

overpayment will be required to be returned or

repaid.” Id. § 1098bb(a)(2)(D). “Modify” means “to

change moderately or in minor fashion.”

MCI

Telecommunications Corp. v. Am. Tel. & Tel. Co., 512

U.S. 218, 225 (1994) (the word “modify” in a federal

law “has a connotation of increment or limitation”). A

waiver is much more than a modification, here costing

the federal government a half-trillion dollars.

The Secretary has statutory authority to “waive” a

requirement of the HEROES Act to prevent “affected

individuals” from being placed “in a worse position

financially in relation to” their student loans “because

of their status as affected individuals.” Id. 20 U.S.C.

§ 1098bb(a)(2)(A). The Secretary also may waive

“administrative requirements placed on affected

individuals” to the extent he can do so “without

impairing the integrity of the student financial

assistance programs.” Id. § 1098bb(a)(2)(B). However,

neither of these waiver provisions apply here. The

program places at least 20 million student borrowers

not just in statu quo, but in a better position than they

were before the COVID “emergency,” by completely

cancelling their debt. And it eviscerates “the integrity

of the student financial assistance programs” by

removing a half-trillion dollars in assets payable to the

federal government when Congress has not

appropriated these monies.

B. The Unprecedented Nature of the

Program Demonstrates that It Is Not

Statutorily Authorized.

President Biden’s own Office of Legal Counsel

concedes that “the direct cancellation of the principal

balances of student loans would be a new application

of the statute.”27 The Congressional Research Service

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

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

unlike past invocations.”28

This “lack of historical precedent,” coupled with

the breadth of authority that the Secretary now

claims, is a “telling indication” that the mandate

extends beyond the agency’s legitimate reach. See

Nat’l Fed’n of Indep. Bus. v. OSHA at 666.

Even President Biden has questioned his own

authority to issue blanket cancellations of student

debt. “Biden entered the presidency deeply skeptical

of the idea of writing off large chunks of student loan

debt. He questioned publicly whether he had the

Office of Legal Counsel, “Use of the HEROES Act of 2003 to

Cancel the Principal Amounts of Student Loans.”

Congressional Research Service, “Statutory Basis for Biden

Administration Student Loan Forgiveness” at 1.

authority to do it.”29 But despite his doubts as to legal

authority, “[d]uring the campaign, he promised to

provide student debt relief.”30

As recently as July 28, 2021, House Speaker Nancy

Pelosi defended the jurisdictional authority of

Congress, warning that the Biden Administration had

no legal authority for a blanket cancellation of student

debt. “People think that the President of the United

States has the power for debt forgiveness. He does

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

an act of Congress.”31

Just last year, the EPA “Clean Power Plan” rule

was struck down by this Court where the Secretary’s

“view of [the agency’s] authority was not only

unprecedented; it also effected a fundamental revision

of the statute, changing it from [one sort of] scheme of

... regulation into an entirely different kind.” West

Virginia v. EPA, 142 S. Ct. 2587, 2612 (2022) (internal

quotation omitted). That description applies here. As

Justice Gorsuch stated then: “[A]n agency’s attempt to

deploy an old statute focused on one problem to solve

a new and different problem may also be a warning

M. Stratford and E. Daniels, “How Biden finally got to ‘yes’ on

canceling student debt,” Politico (Aug. 25, 2022).

The White House, “Fact Sheet: President Biden Announces

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

2022).

N. Pelosi Press Release, Transcript of Pelosi Weekly Press

Conference Today (July 28, 2021).

sign that it is acting without clear congressional

authority.” Id. at 2623 (Gorsuch, J., concurring).

In creating the federal student loan regime,

Congress did not make it easy for students to avoid

repayment of loans, which are not even dischargeable

in bankruptcy. See 11 U.S.C. § 523(a)(8).

Nor does Congress “typically use oblique or

elliptical language to empower an agency to make a

‘radical or fundamental change’ to a statutory scheme.”

West Virginia at 2609 (quoting MCI Tele. Corp. at

229). Where Congress has acted to discharge student

loans, it has done so to address only limited and

narrowly targeted instances. See, e.g., 20 U.S.C.

§§ 1098cc (tuition breaks for military service

members), 1087 (cancellation of loans of deceased,

disabled, or bankrupt students), 1087e(f) (deferment),

and 1087e(m)(2) (loan cancellation amount).

Moreover, in 2020, in the heart of the COVID

pandemic, Congress considered, but declined to enact,

a proposal to provide up to $10,000 in student-loan

debt. See H.R. 6800, 116th Cong. § 150117 (2020).

C. If the Waiver Program Is Found to Be

Statutorily Authorized, the HEROES Act

Is an Unconstitutional Delegation of

Legislative Power.

The Secretary asserts that the HEROES Act

“grants the Secretary expansive power to ‘waive or

modify’ any provisions of title IV and its implementing

regulations,”32 that “class-wide debt relief in these

circumstances is appropriate” under the Act (id.), and

that a blanket cancellation of a half-trillion dollars in

debt that Congress has directed to be repaid — and

indeed has expressly declined to cancel statutorily —

constitutes a “waiver” or “modification” of Congress’s

loan repayment directive. Id.

If the Court finds that this interpretation of the

Act is correct, and Congress actually has delegated to

the Executive Branch the authority to write a new law,

then the HEROES Act most certainly would constitute

an unconstitutional delegation of “powers which are

strictly and exclusively legislative.” Wayman, 23 U.S.

at 42.

III. THE EXECUTIVE BRANCH’S REPEATED

ATTEMPTS TO USURP LEGISLATIVE

POWER REQUIRE GUIDANCE FROM THIS

COURT.

During the Biden Administration, on repeated

occasions, this Court has been required to strike down

usurpations of legislative power by executive branch

agencies. However, thus far the Court has done so

based on a finding of a lack of statutory authorization

for the challenged action or some defect in the agency’s

adherence to the Administrative Procedure Act,

avoiding a ruling on constitutional grounds. Consider

the following three recent cases evaluating executive

actions of the Biden Administration.

Office of Legal Counsel, “Use of the HEROES Act of 2003 to

Cancel the Principal Amounts of Student Loans” at 2-4.

In August 2021, this Court decided Ala. Ass’n of

Realtors v. HHS, 141 S. Ct. 2485 (2021), and struck

down the “unprecedented” “claim of expansive

authority” assumed by the Department of Health and

Human Services and the Centers for Disease Control

to impose a nationwide eviction moratorium due to the

COVID-19 outbreak. Id. at 2489. The Court avoided

the constitutional issue by finding that the eviction

moratorium exceeded statutory authority. Id. at 2490.

In January 2022, citing the “Major Questions

Doctrine” — which the Court likened to the

Nondelegation Doctrine as being grounded in the

separation of powers concerns — this Court struck

down a COVID “vaccination” mandate from the Labor

Department’s Occupational Safety and Health

Administration. The mandate required that all

employers with 100 or more employees force every

employee to receive the “vaccination.” Nat’l Fed’n of

Indep. Bus. v. OSHA at 662. Again, this Court found

the mandate exceeded OSHA’s statutory authority

and noted that “[i]t is telling that OSHA, in its half

century of existence, has never before adopted a broad

public health regulation of this kind.” Id. at 665-66.

In June 2022, this Court struck down the

Environmental Protection Agency’s Clean Power Plan

rule, which addressed carbon dioxide emissions from

existing coal- and natural-gas-fired power plants. See

West Virginia v. EPA. Again the Court decided the

case based on the “Major Questions Doctrine.” The

Court noted that the authority claimed by the EPA

“conveniently enabled it to enact a program that ...

‘Congress [had already] considered and rejected....’”

Id. at 2614. This Court struck down the agency action

on the basis that it exceeded statutory authorization.

Id. at 2615-2616. In his concurrence, Justice Gorsuch

noted the huge separation of powers problem raised by

the EPA’s action and the importance of that scheme of

separation to individual liberty. “Permitting Congress

to divest its legislative power to the Executive Branch

would dash [this] whole scheme. Legislation would

risk becoming nothing more than the will of the

current President, or, worse yet, the will of unelected

officials barely responsive to him.” Id. at 2618

(Gorsuch, J., concurring) (internal quotations omitted).

While there is no doubt merit in adhering to the

constitutional avoidance doctrine, it is clear that the

Executive Branch has learned nothing whatsoever

from this Court’s rebuffs based on statutory language,

and, if past is prologue, more executive usurpations

can be expected during the remaining years of the

Biden Administration. This causes parties aggrieved

by lawless Executive Branch actions to be under

continual threat, and in constant litigation, with the

nondelegation doctrine lurking in the background of

each challenge. Accordingly, these amici suggest that

this case be the one that falls within the rule Justice

Gorsuch articulated in his 2019 dissent in Gundy:

when a case or controversy comes within the

judicial competence, the Constitution does

not permit judges to look the other way;

we must call foul when the constitutional lines

are crossed. Indeed, the framers afforded us

independence from the political branches in

large part to encourage exactly this kind of

“fortitude ... to do [our] duty as faithful

guardians of the Constitution.... [W]e have an

obligation to decide whether Congress has

unconstitutionally divested itself of its

legislative responsibilities.” [Gundy at 2135

(Gorsuch, J., dissenting) (emphasis added).]

Indeed, this case provides this Court an excellent

opportunity to serve as those “faithful guardians of the

Constitution” by declaring the Department of

Education’s program to be a usurpation of legislative

power, fulfilling the obligation set out by Chief Justice

Marshall “to say what the law is.” Marbury v.

Madison, 5 U.S. 137, 177 (1803).

CONCLUSION

For the foregoing reasons and for the reasons set

out in the briefs for respondents, the lower court

injunctions should be affirmed.

Respectfully submitted,

MICHAEL BOOS

DANIEL H. JORJANI

CITIZENS UNITED

1006 Penn. Ave. S.E.

Washington, DC 20003

(202) 547-5420

RICK BOYER

INTEGRITY LAW FIRM

P.O. Box 10953

Lynchburg, VA 24506

February 3, 2023

WILLIAM J. OLSON*

JEREMIAH L. MORGAN

ROBERT J. OLSON

WILLIAM J. OLSON, P.C.

370 Maple Ave. W., Ste. 4

Vienna, VA 22180

(703) 356-5070

wjo@mindspring.com

*Counsel of Record

Attorneys for

Amici Curiae

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.