Amicus Curiae Brief — Department of Education, et al., Petitioners v. Myra Brown, et al.

Nos. 22-506 and 22-535

In the

Supreme Court of the United States

JOSEPH R. BIDEN, PRESIDENT OF THE UNITED STATES,

ET AL., Petitioners,

v.

STATE OF NEBRASKA, ET AL.

DEPARTMENT OF EDUCATION, ET AL., Petitioners,

v.

MYRA BROWN, ET AL.

ON WRITS OF CERTIORARI BEFORE JUDGMENT TO THE

UNITED STATES COURTS OF APPEALS FOR THE EIGHTH

AND FIFTH CIRCUITS

BRIEF FOR AMICUS CURIAE THE CHAMBER

OF COMMERCE OF THE UNITED STATES OF

AMERICA IN SUPPORT OF RESPONDENTS

JENNIFER B. DICKEY

JORDAN L. VON BOKERN

U.S. CHAMBER

LITIGATION CENTER

1615 H Street, NW

Washington, DC 20062

ROBERT E. DUNN

Counsel of Record

EIMER STAHL LLP

99 S. Almaden Blvd.

Suite 600

San Jose, CA 95113

(408) 889-1690

rdunn@eimerstahl.com

Counsel for Amicus Curiae

(Additional counsel on signature page)

February 3, 2023

TABLE OF CONTENTS

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

STATEMENT OF INTEREST ............................. 1

SUMMARY OF ARGUMENT.............................. 2

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

I.

The Major Questions Doctrine Should

Apply Whenever An Agency, Wielding

Authority The Constitution Vests In

Congress, Sets Policy That We Would

Normally Expect Congress Itself To

Establish. ................................................. 5

II. The Major Questions Doctrine Applies To

The Department’s Action Here Because

We Would Normally Expect Congress To

Decide Whether To Spend $500 Billion

On A Blanket Loan Forgiveness

Program. ................................................ 19

CONCLUSION ................................................... 24

TABLE OF AUTHORITIES

Cases

Ala. Assoc. of Realtors v. Dep't of Health and Human

Servs.,

141 S. Ct. 2485 (2021) ................................ 4, 15, 16

Arizona v. Walsh,

No. CV-22-00213-PHX-JJT, 2023 WL 120966

(D. Ariz. Jan. 6, 2023)............................................. 9

Coalition for Responsible Regulation, Inc. v. EPA.,

2012 WL 6621785 (D.C. Cir. Dec. 20, 2012) .......... 5

FDA v. Brown & Williamson Tobacco Corp.,

529 U.S. 120 (2000) ................................................ 6

Georgia v. President of the United States,

46 F.4th 1283 (11th Cir. 2022) ......................... 9, 16

Gonzales v. Oregon,

546 U.S. 243 (2006) ................................................ 6

Gundy v. United States,

139 S. Ct. 2116 (2019) .............................. 10, 11, 12

Kaweah Delta Med. Health Care Dist. v. Becerra,

No. CV 20-6564-CBM-SP(x), 2022 WL 18278175

(C.D. Cal. Dec. 22, 2022) ........................................ 9

King v. Burwell,

576 U.S. 473 (2015) ...................................... 4, 6, 13

Loper Bright Enters., Inc. v. Raimondo,

45 F.4th 359 (D.C. Cir. 2022) ................................. 9

- ii -

Louisiana v. Becerra,

No. 3:21-CV-04370, 2022 WL 4370448

(W.D. La. Sept. 21, 2022) ....................................... 9

Louisiana v. Biden,

55 F.4th 1017 (5th Cir. 2022) ........................... 9, 16

Marshall Field & Co. v. Clark,

143 U.S. 649 (1892) .............................................. 10

MCI Telecomms. Corp. v. Am. Tel. & Telegraph Co.,

512 U.S. 218 (1994) ................................................ 6

Mistretta v. United States,

488 U.S. 361 (1989) ........................................ 10, 19

Nat’l Fed. of Indep. Bus. v. Dep’t of Labor,

Occupational Safety and Health Admin.,

142 S. Ct. 661 (2022) .............................................. 3

Office of Personnel Mgmt. v. Richmond,

496 U.S. 414 (1990) .............................................. 23

United States Telecom. Assoc. v. FCC,

855 F.3d 381 (D.C. Cir. 2017)....................... 5, 6, 10

Utility Air Regulatory Grp. v. EPA,

573 U.S. 302 (2014) .......................................... 6, 24

Wayman v. Southard,

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

West Virginia v. EPA,

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

Whitman v. Am. Trucking Ass’ns,

531 U.S. 457 (2001) .............................................. 17

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Statutes

5 U.S.C. § 558 ............................................................. 9

Coronavirus Aid, Relief, and Economic Security Act,

Pub. L. 116–136, 134 Stat. 281, § 4024(a)(2)....... 16

U.S. Const. art. I .......................................9, 12, 16, 19

Regulations and Executive Orders

33 C.F.R. Part 328.................................................... 18

40 C.F.R. Part 120.................................................... 18

Exec. Order No. 12866,

58 Fed. Reg. 51735 (1993) .................................... 15

Books and Law Reviews

A. Barrett, Substantive Canons and Faithful Agency,

90 B. U. L. Rev. 109 (2010) ...................... 19, 21, 23

Stephen Breyer, Judicial Review of Questions of Law

and Policy,

38 Admin. L. Rev. 363 (1986) ................................. 5

Ronald A. Cass, Delegation Reconsidered: A

Delegation Doctrine for the Modern Administrative

State,

40 Harv. J.L. & Pub. Pol’y 147 (2017) ................. 14

W. Eskridge, Interpreting Law: A Primer on How to

Read Statutes and the Constitution (2016) ......... 11

Hamilton, The Federalist Papers, No. 78 ................ 23

Madison, The Federalist Papers, No. 58.................. 23

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Kate Stith, Congress’ Power of the Purse,

97 Yale L. J. 1343 (1988) ...................................... 23

2 Story, Commentaries on the Constitution of the

United States § 1348 (3d ed. 1858) ..................... 23

Cass Sunstein, Chevron Step Zero,

92 Va. L. R. 187 (2006) ........................................... 6

Other Authorities

Suzanne P. Clark, The Chamber of Commerce Will

Fight the FTC, Wall Street Journal (Jan. 22, 2023)

............................................................................... 17

Cong. Budget Office, Costs of Suspending Student

Loan Payments and Canceling Debt (Sept. 26,

2022)...................................................................... 20

Federal Trade Commission, FTC Proposes Rule to

Ban Noncompete Clauses, Which Hurt Workers

and Harm Competition (Jan. 5, 2023), ................ 17

George Washington University Regulatory Studies

Center, Columbian College of Arts & Sciences,

Economically Significant Rules by Agency .......... 15

H.R. 2034, 117th Cong. (2021)................................. 21

H.R. 6800, 116th Cong. (2020)................................. 21

Tamara Keith, Wielding a Pen and a Phone, Obama

Goes it Alone, National Public Radio (Jan. 20,

2014)...................................................................... 17

Mini Racker, Why the Debt Ceiling Matters and

What Happens if Congress Refuses to Raise it,

Time (Jan. 17, 2023) ............................................. 20

-v-

Reed Rubinstein, Memorandum to Betsy DeVos

Secretary of Education, United States Department

of Education, Office of the General Counsel (Jan.

12, 2021) ................................................................ 22

S. 2235, 116th Cong. (2019) ..................................... 21

The White House, Background Press Call by Senior

Administration Officials on Student Loan Relief

(Aug. 24, 2022) ...................................................... 21

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STATEMENT OF INTEREST1

The Chamber of Commerce of the United States of

America is the world’s largest business federation. It

represents approximately 300,000 direct members

and indirectly represents the interests of more than 3

million companies and professional organizations of

every size, in every economic sector, and from every

region of the country. An important function of the

Chamber is to represent the interests of its members

in matters before the courts, Congress, and the

Executive Branch.

To that end, the Chamber

regularly files amicus curiae briefs in cases, like this

one, that raise issues of concern to the Nation’s

business community.

The Chamber and its members have an interest in

clarifying when the major questions doctrine applies

to regulatory challenges. The Chamber routinely files

such challenges to hold administrative agencies

accountable to the rule of law. As this Court has

recognized, the major questions doctrine derives from

the separation of powers and thus ensures that each

branch of government stays in its respective lane and

that administrative agencies do not impose

regulatory burdens that exceed lawful bounds.

1 Pursuant to Supreme Court Rule 37.6, amicus curiae states

that no counsel for any party authored this brief in whole or in

part and that no entity or person, aside from amicus curiae, its

members, or its counsel, made any monetary contribution

intended to fund the preparation or submission of this brief.

-1-

SUMMARY OF ARGUMENT

I. This case presents a timely opportunity to

reinforce important constitutional guardrails that

prevent administrative agencies and executive

branch departments from exercising core legislative

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

(2022), this Court described an “identifiable body of

law” that “developed over a series of significant cases”

in which agencies had “assert[ed] highly

consequential power beyond what Congress could

reasonably be understood to have granted.” Id. at

2609. The Court labeled that body of law the “major

questions doctrine” and explained that in such

“extraordinary cases” courts should insist on “clear

congressional authorization” before upholding the

agency’s action. Id. at 2608–09. The Court applied

that rigorous standard to the EPA’s Clean Power Plan

because, inter alia, the EPA purported to rely on a

long-extant statutory provision designed to function

as a gap filler, the EPA’s rule departed from its

historical interpretation of that provision, Congress

had previously debated whether to impose a similar

cap-and-trade plan, the EPA had no comparative

expertise in crafting national energy policy, and the

Clean Power Plan would give the EPA

“unprecedented power over American industry.” Id. at

2610–14.

Here, the Department of Education contends that

the major questions doctrine does not apply to its

blanket loan-forgiveness program because some of

those features are arguably absent. For example, the

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Department contends that it does have comparative

expertise in administering the federal loan program.

More fundamentally, the Department argues that the

doctrine is inapplicable because its decision to forgive

roughly $500 billion in student loans is not

“regulatory” in nature—i.e., it does not control private

conduct—but simply provides government benefits.

These arguments are based on a fundamental

misunderstanding

about

the

constitutional

foundations of the major questions doctrine. The

doctrine “protect[s] the Constitution’s separation of

powers” by ensuring that agencies do not usurp

Congress’ Article I powers. W. Virginia, 142 S. Ct. at

2617 (Gorsuch, J., concurring). To prevent such

usurpations, the doctrine should apply whenever it

appears that an agency is wielding core Article I

authority to set policy that Congress would normally

be expected to establish on its own. This Court should

clarify that the doctrine applies to all such agency

actions even if they do not regulate private conduct or

exhibit every feature of the improper agency action

set aside in West Virginia.

The doctrine’s clear statement rule is more

important now than ever, as the executive branch has

increasingly relied on the administrative state “to

‘work [a]round’ the legislative process to resolve”

“question[s] of great political significance.” W.

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

(quoting Nat’l Fed. of Indep. Bus. v. Dep’t of Labor,

Occupational Safety and Health Admin., 142 S. Ct.

661, 668 (2022) (“NFIB”) (Gorsuch, J., concurring)).

This Court has seen that for itself. In West Virginia,

-3-

it was the EPA exercising Congress’ commerce power

to implement national energy policy. In NFIB, it was

OSHA exercising that power to implement a vaccine

mandate. In Alabama Association of Realtors v.

Department of Health and Human Services, 141 S. Ct.

2485 (2021), it was the CDC imposing a nationwide

eviction moratorium after Congress declined to

extend the short moratorium it had enacted under its

spending power. In King v. Burwell, 576 U.S. 473

(2015), it was the IRS extending billions of dollars in

tax credits. This agency overreach shows little signs

of stopping.

Although, under this Court’s precedents, Congress

could theoretically delegate these powers to the

appropriate agency, remaking the national energy

market, vaccinating American workers, curtailing

evictions, and extending billions of dollars in tax

credits are precisely the types of actions that one

would normally expect Congress to undertake itself.

The major questions doctrine is an important

safeguard to ensure that agencies do not make these

types of politically significant decisions without

explicit congressional authorization.

II. Here, the Department is exercising Congress’

appropriations power by converting $500 billion in

federal loans to grants. This action also implicates

Congress’ power to tax and borrow, as the halftrillion-dollar hole it creates in the federal budget will

need to be backfilled somehow. Congress has

considered—but thus far declined—to forgive student

loans on a blanket basis. And the President’s

spokespeople have described the loan-forgiveness

-4-

program as the fulfillment of a campaign pledge. In

short, the Department’s loan-forgiveness program, a

significant exercise of the power of the purse, is

precisely the type of action the Constitution entrusts

exclusively to Congress. The agency should thus be

required to point to clear congressional authorization

empowering it to issue a blanket loan forgiveness

program.

ARGUMENT

I.

The Major Questions Doctrine Should

Apply Whenever An Agency, Wielding

Authority The Constitution Vests In

Congress, Sets Policy That We Would

Normally Expect Congress Itself To

Establish.

A. Courts and commentators have long recognized

the existence of a “‘major questions’ canon” in this

Court’s jurisprudence. Coalition for Responsible

Regulation, Inc. v. EPA, 2012 WL 6621785, at *9 (D.C.

Cir. Dec. 20, 2012) (Brown, J., dissenting from the

denial of rehearing en banc); see also United States

Telecom Assoc. v. FCC, 855 F.3d 381, 419 (D.C. Cir.

2017) (Mem.) (Kavanaugh, J., dissenting from the

denial of rehearing en banc) (discussing the “major

rules doctrine (usually called the major questions

doctrine)”).2 But while that doctrine was evident in

2 See also Stephen Breyer, Judicial Review of Questions of

Law and Policy, 38 Admin. L. Rev. 363, 370 (1986) (“A court may

also ask whether the legal question is an important one.

-5-

cases such as MCI Telecommunications Corp. v.

American Telephone & Telegraph Co., 512 U.S. 218

(1994), FDA v. Brown & Williamson Tobacco Corp.,

529 U.S. 120 (2000), Gonzales v. Oregon, 546 U.S. 243

(2006), Utility Air Regulatory Group v. EPA, 573 U.S.

302 (2014), and King v. Burwell, 576 U.S. 473 (2015),

the Court formalized the doctrine just last term in

West Virginia v. EPA, 142 S. Ct. 2587 (2022). As the

Court recognized, “precedent teaches that there are

‘extraordinary cases’ . . . in which the ‘history and the

breadth of the authority that [the agency] has

asserted,’ and the ‘economic and political significance’

of that assertion, provide a ‘reason to hesitate before

concluding that Congress’ meant to confer such

authority.” Id. at 2608 (citation omitted). Accordingly,

the agency “must point to ‘clear congressional

authorization’ for the power it claims” when it asserts

“extravagant statutory power over the national

economy,’” or makes “major policy decisions.” Id. at

2609 (citing Utility Air, 573 U.S. at 324; United States

Telecom, 855 F.3d at 381).

Congress is more likely to have focused upon, and answered,

major questions, while leaving interstitial matters to answer

themselves in the course of the statute’s daily administration.”);

Cass Sunstein, Chevron Step Zero, 92 Va. L. R. 187, 193 (2006)

(“In a separate trilogy of cases, which I will call the ‘Major

Question’ trilogy, the Court has raised a separate Step Zero

question by suggesting the possibility that deference will be

reduced, or even nonexistent, if a fundamental issue is involved,

one that goes to the heart of the regulatory scheme at issue. The

apparent theory is that Congress should not be taken to have

asked agencies to resolve those issues.”).

-6-

In determining that West Virginia’s challenge to

the EPA’s Clean Power Plan was “a major questions

case,” the Court made several observations about the

scope of the agency’s action. Id. at 2610. First, the

“EPA ‘claim[ed] to discover in a long-extant statute an

unheralded power’ representing a ‘transformative

expansion in [its] regulatory authority.’” Id. at 2610

(citation omitted). Second, the EPA’s action “effected

a ‘fundamental revision of the statute, changing it

from [one sort of] scheme of . . . regulation’ into an

entirely different kind.” Id. at 2612 (citation omitted).

Third, the EPA had “‘no comparative expertise’ in

making [the] policy judgments” contained in its rule.

Id. at 2612–13 (citation omitted). Fourth, the choice

contained in the EPA’s rule involved “major social and

economic policy decisions” in a highly controversial

area. Id. at 2613 (citation omitted). And, finally,

“‘Congress [had] considered and rejected’ multiple

times” the very program enacted by the EPA. Id. at

2614. Given these factors, the Court correctly

required the agency to demonstrate clear

congressional authorization for its action, which it

could not do.

The Department reads these factors as necessary

for the doctrine to apply. In other words, it contends

that courts should require a clear statement of

congressional authorization only when all the listed

factors are present. And because some of those factors

are arguably absent here, the Department contends

that this is not a major questions case. For example,

the Department asserts that there is no “marked

incongruity” between its claimed authority and the

-7-

“history and context of the statutory provision that

purportedly conferred it.” Pet.Br.48. The Department

also contends that it does not lack “comparative

expertise” in administering federal student loans and

asserts that it has “repeatedly invoked” the HEROES

Act “to provide class-wide relief to affected

borrowers.” Id. at 51. And while Congress has debated

loan forgiveness programs, the Department notes

that the proposed bills “meaningfully differed from

the relief the Secretary authorized.” Id. at 52. More

fundamentally, the Department points out that

unlike the Clean Power Plan and other agency actions

invalidated under the major-questions doctrine, its

loan forgiveness program is not an assertion of

regulatory authority, but instead is an “exercise of

authority over a government benefit program.” Id. at

48–49.

The Department’s arguments rest on a flawed

premise—i.e., that agency action must bear all the

hallmarks of a major questions case described in West

Virginia for the doctrine to apply. This Court

announced no such requirement in West Virginia, and

the doctrine’s basis in the separation of powers

militates in favor of a much broader application. For

the reasons set forth below, the Court should reject

the Department’s narrow conception of the doctrine

and hold that a clear statement of congressional

authorization is required whenever it appears that an

agency is wielding legislative authority to set policy

-8-

that Congress would normally be expected to

establish.3

B. Under our tripartite system of government, the

power to make the law is given to Congress, not to the

President or his agencies. U.S. Const. art. I § 1

(granting “all legislative powers” to Congress).

Executive branch agencies thus cannot exercise

legislative authority. Instead, “[a]gencies have only

those powers given to them by Congress.” W. Virginia,

142 S. Ct. at 2609; see also 5 U.S.C. § 558(b)

(prohibiting agencies from making rules “except

3 In the seven months since West Virginia, lower courts have

struggled to determine when the major questions doctrine

applies. See, e.g,, Kaweah Delta Med. Health Care Dist. v.

Becerra, No. CV 20-6564-CBM-SP(x), 2022 WL 18278175, at *1,

*7–8 (C.D. Cal. Dec. 22, 2022) (applying the doctrine to HHS rule

decreasing Medicare payments to hospitals overall in order to

fund increased payments to the lowest quartile of hospitals);

Louisiana v. Becerra, No. 3:21-CV-04370, 2022 WL 4370448, at

*2, *10–11 (W.D. La. Sept. 21, 2022) (applying doctrine to HHS

rule imposing vaccine and masking mandates at Head Start

school programs); Arizona v. Walsh, No. CV-22-00213-PHX-JJT,

2023 WL 120966, at *1, *7 (D. Ariz. Jan. 6, 2023) (declining to

apply the doctrine to DOL rule increasing minimum wage for

federal contractors to $15 per hour); Loper Bright Enters., Inc. v.

Raimondo, 45 F.4th 359, 364–65 (D.C. Cir. 2022) (declining to

apply doctrine to rule adopted by National Marine Fisheries

Service requiring the fishing industry to fund at-sea monitoring

programs). Judges have also disagreed as to whether the

doctrine applies to actions of the President as well as to those of

the agencies. See Georgia v. President of the United States, 46

F.4th 1283, 1313–14 (11th Cir. 2022) (Anderson, J., concurring

in part and dissenting in part); Louisiana v. Biden, 55 F.4th

1017, 1038–39 (5th Cir. 2022) (Graves Jr., J., dissenting).

-9-

within jurisdiction delegated to the agency and as

authorized by law”). This constitutional allocation of

legislative power to Congress is “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).

Although the Constitution prohibits Congress

from simply “transferring its legislative power to

another branch of Government,” this Court has held

that “Congress may ‘obtain[] the assistance of its

coordinate [b]ranches’—and in particular, may confer

substantial discretion on executive agencies to

implement and enforce the laws.” Gundy v. United

States, 139 S. Ct. 2116, 2121, 2123 (2019) (plurality

op.) (quoting Mistretta v. United States, 488 U.S. 361,

372 (1989)). Over the past century, Congress has

delegated substantial “power under broad general

directives” to various agencies, id. at 2123, and the

number and complexity of the rules and regulations

promulgated by those agencies dwarfs the number of

statutes enacted by Congress. See id. at 2130–31

(Alito, J., concurring in the judgment) (noting that

“since 1935, the Court has uniformly rejected

nondelegation arguments and has upheld provisions

that authorized agencies to adopt important rules

pursuant to extraordinarily capacious standards”).

Yet even if the Constitution tolerates such broad

delegations of authority, this Court has consistently

“presume[d] that ‘Congress intends to make major

policy decisions itself, not leave those decisions to

agencies.’” W. Virginia, 142 S. Ct. at 2609 (quoting

United States Telecom, 855 F.3d at 419 (Kavanaugh,

- 10 -

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

see also W. Eskridge, Interpreting Law: A Primer on

How to Read Statutes and the Constitution 288 (2016)

(“[J]udges presume that Congress does not delegate

its authority to settle or amend major social and

economic policy decisions.”). Indeed, leaving major

policy decisions to agencies would create substantial

separation-of-powers problems. The major questions

doctrine, an interpretive tool based on this wellfounded presumption, safeguards Congress’ Article I

power by ensuring that “important subjects” are

“entirely regulated by the legislature itself.” Wayman

v. Southard, 23 U.S. 1, 10 Wheat. 1, 42–43 (1825). The

alternative—presuming that Congress casually

delegates vital decision-making power to agencies—

would risk allowing legislation to “becom[e] nothing

more than the will of the current President, or, worse

yet, the will of unelected officials barely responsive to

him.” W. Virginia, 142 S. Ct. at 2618 (Gorsuch, J.,

concurring); see also Gundy, 139 S. Ct. at 2142

(Gorsuch, J., dissenting) (“Although it is nominally a

canon of statutory construction, we apply the major

questions doctrine in service of the constitutional rule

that Congress may not divest itself of its legislative

power by transferring that power to an executive

agency.”).

Given its basis in the separation of powers, the

major questions doctrine counsels judicial skepticism

in the face of all forms of agency action with “economic

and political significance.” W. Virginia, 142 S. Ct. at

2608. The EPA took such an action in West Virginia

when it purported to “substantially restructure the

- 11 -

American energy market” by forcing a nationwide

shift from coal to renewable sources of energy. Id. at

2610. The EPA was able to assert this “unprecedented

power over American industry” by helping itself to

Congress’ Article I authority to regulate interstate

commerce. Id. at 2612. But the Constitution requires

such muscular exercises of the commerce power to be

undertaken by Congress itself, not an agency. And

indeed, far from leaving the issue for the agency to

work out behind the scenes, Congress “considered and

rejected” the imposition of a nationwide cap-andtrade system “multiple times.” Id. at 2614. The EPA’s

action thus threatened to undermine the separation

of powers.

When confronted with such cases, courts should

assure themselves that Congress has paved the way

for the agency’s action through an unmistakable

delegation of authority. Only then may the agency

“implement and enforce the law[]” Congress has

enacted. Gundy, 139 S. Ct. at 2123 (plurality op.).

Absent such a clear congressional statement, there is

a risk that the agency is not so much implementing

the law as it is “attempting to ‘work [a]round’ the

legislative process to resolve for itself a question of

great political significance.” W. Virginia, 142 S. Ct. at

2621 (Gorsuch, J., concurring) (citation omitted).

While these types of aggressive agency actions

often regulate private conduct (Pet.Br.48–49),

agencies can usurp Congress’ authority in other ways

as well. For example, the Constitution grants

Congress, and Congress alone, the power to tax,

borrow, and appropriate. U.S. Const. art. I, § 8. Any

- 12 -

agency purporting to exercise those powers should be

required to point to a clear delegation of authority,

even if the agency’s action does not directly regulate

private behavior.

This Court’s decision in King v. Burwell, which

addressed an IRS rule that expanded the eligibility of

tax credits under the Affordable Care Act, illustrates

the broad scope of the doctrine. 576 U.S. at 485–86.

There, the IRS’s rule did not regulate private conduct

but instead “involv[ed] billions of dollars in spending

each year and affect[ed] the price of health insurance

for millions of people.” Ibid. Although the IRS’s rule

did not regulate private conduct, the Court easily

concluded that whether the tax credits were

“available on Federal Exchanges” was a “question of

deep ‘economic and political significance.’” Id. The

Court thus declined to defer to the IRS on this

question. Id. at 486.4 King’s application of the major

questions doctrine to the IRS’s purported exercise of

Congress’ power to tax and spend confirms the broad

scope of the doctrine.

A rigid application of the factors identified in West

Virginia is incongruent with that scope. For example,

while the fact that Congress had declined to enact a

cap-and-trade system after robust debate suggested

4 The Court ultimately concluded, based on the context and

structure of the Affordable Care Act, that the IRS’s

interpretation was correct, and that Congress had intended for

the tax credits to be made available to those who purchased

insurance through Federal Exchanges. King, 576 U.S. at 497–

98.

- 13 -

that the EPA’s imposition of a similar system

exceeded its statutory authority, one can imagine

other patterns of legislative conduct that would raise

similar concerns. Sometimes Congress declines even

to debate policy proposals floated by the executive due

to significant political opposition from that body. An

agency subsequently implementing that same policy

would rightly be suspected of effecting an end-run

around the legislative process. Similarly, as is the

case here, when Congress has considered various

proposals on a certain subject, it is safe to assume that

Congress has not sub silentio delegated to an agency

the authority to adopt a different policy addressing

that same subject.

Likewise, while an agency’s sudden discovery of a

long-disclaimed (or never-before asserted) power may

signal an unconstitutional overreach, W. Virginia,

142 S. Ct. at 2610–12, an agency invoking a more

recent statute to refight a battle the executive lost

during the legislative process is equally out of bounds.

And though various agencies may have competence in

particular subject matters, they lack competence to

balance the competing interests involved in politically

and economically significant decisions.5 The major

5 See Ronald A. Cass, Delegation Reconsidered: A Delegation

Doctrine for the Modern Administrative State, 40 Harv. J.L. &

Pub. Pol’y 147, 191 (2017) (“Basic judgments on regulation of

society can produce the sort of coercive rules for the citizenry

that were the subject of greatest concerns at the founding—

concerns that were the basis for constitutional structures

dividing and limiting legislative power. These judgments are not

appropriate for administrative decision-making, even when

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questions doctrine should be flexible enough to

account for the various scenarios in which executive

agencies may be tempted to step beyond their

constitutional role.

C. A robust version of the major questions doctrine

is especially important today given the recent

tendency of executives to use agency action when

confronted with congressional resistance.6 For

example, two years ago, Congress imposed a fourmonth “eviction moratorium for properties that

participated in federal assistance programs or were

subject to federally backed loans.” Ala. Ass’n of

Realtors v. Dep’t of Health and Human Servs., 141 S.

Ct. 2485, 2486–87 (2021). But when Congress refused

the President’s request to renew the moratorium, the

CDC did the job itself, imposing a sweeping, openended eviction moratorium, backed by criminal

attached to some regulatory structure that invokes executive

powers such as prosecution.”).

As an empirical matter, the number of “economically

significant” rules published by federal agencies has steadily

grown since the early 1980s. See George Washington University

Regulatory Studies Center, Columbian College of Arts &

Sciences, Economically Significant Rules by Agency,

https://tinyurl.com/5n72pcfb. “Economically significant” rules

are those that have an “annual effect on the economy of $100

million or more or adversely affect in a material way the

economy, a sector of the economy, productivity, competition, jobs,

the environment, public health or safety, or State, local, or tribal

governments or communities.” Exec. Order No. 12866, 58 Fed.

Reg. 51735 (1993).

6

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penalties, that applied to every private landlord in the

country. Ibid.7

In a similar manner, when Congress rebuffed the

President’s request for a nationwide vaccine mandate,

OSHA stepped in to impose a “vaccine mandate for

much of the Nation’s work force,” NFIB, 142 S. Ct. at

662, and various executive branch agencies,

exercising Congress’ procurement power, imposed a

mandate on federal contractors, see Georgia v.

President of the United States, 46 F.4th 1283 (11th

Cir. 2022); Louisiana v. Biden, 55 F.4th 1017 (5th Cir.

2022).

The common thread connecting these cases is that

each agency purported to set policy that Congress

would normally be expected to establish through the

exercise of its Article I authority—e.g., the commerce

power, spending power, procurement power, etc.—

after Congress refused to accede to the executive’s

wishes. Indeed, the underlying rationale for the

executive branch’s recent propensity to find

“elephants in mouseholes” appears to be Congress’

7 Given that Congress relied on its spending power—not its

commerce power—to impose the initial eviction moratorium,

even Congress likely could not have extended its moratorium to

cover all private property. See Coronavirus Aid, Relief, and

Economic Security Act, Pub. L. 116–136, 134 Stat. 281,

§ 4024(a)(2) (defining “covered property” by reference to

federally funded programs). The CDC thus did not merely usurp

Congress’ Article I authority, it likely violated basic principles of

federalism by exercising a general police power the Constitution

reserved to the States.

- 16 -

unwillingness to further the executive’s agenda.

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

(2001); cf. Tamara Keith, Wielding a Pen and a Phone,

Obama Goes it Alone, National Public Radio (Jan. 20,

2014), https://tinyurl.com/mr2zph72 (“I am going to

be working with Congress where I can to accomplish

this, but I am also going to act on my own if Congress

is deadlocked.”). But congressional gridlock resulting

from today’s polarized political environment does not

justify the abandonment of our constitutional

structure.

Unfortunately, although COVID-19 may be

receding, the epidemic of agency overreach shows no

signs of stopping. Earlier this year, for example, the

FTC announced a proposed rule to ban all

employment-based noncompete agreements,8 even

though “[i]n its more than 100-year history, the FTC

has never enforced a rule to regulate competition, and

Congress never intended the agency to have that

power.”9 Meanwhile, the Consumer Financial

Protection Bureau has announced an interpretation

of its authority to prohibit any “unfair, deceptive, or

abusive act or practice” that would allow it to regulate

what it deems discriminatory “effects” with no

consideration for the guardrails that this Court has

8 Federal Trade Commission, FTC Proposes Rule to Ban

Noncompete Clauses, Which Hurt Workers and Harm

Competition (Jan. 5, 2023), https://tinyurl.com/ywvn5w2e.

9 Suzanne P. Clark, The Chamber of Commerce Will Fight

the

FTC,

Wall

Street

Journal

https://tinyurl.com/mrnk9yyd.

- 17 -

(Jan.

22,

2023),

imposed upon disparate-impact liability.10 The EPA

and Army Corps of Engineers continue to create

expansive definitions of the Waters of the United

States that subject ever more private land to federal

control and expensive permitting requirements,

usurping the States’ primary role in regulating land

and water resources. See 33 C.F.R. Part 328; 40

C.F.R. Part 120. And, here, the Department has

attempted to add $500 billion to the federal debt

through a blanket loan forgiveness program in an

apparent effort to fulfill President Biden’s campaign

promise. See infra, Part II.

The best defense against these administrative

incursions is the major questions doctrine.

Accordingly, even if an agency action does not share

all the same features highlighted in West Virginia,

the doctrine should not be cast aside. To be sure,

many of the hallmarks of improper agency action

listed in West Virginia will often be present in major

questions cases because agencies usurping Congress’

authority tend to act outside their areas of core

competence, issue rules with massive economic

consequences, invoke long-extant statutes, change

their position on the extent of their authority, and

regulate in areas subject to heated congressional

debate. But each of these features is merely a

10 See Pltf’s Combined Reply In Support of Mot. for Summary

Judgment, Chamber of Commerce of the United States of

America v. Consumer Financial Protection Bureau, No. 22-cv00381, ECF No. 28 at 22–26 (E.D. Tex. Jan. 10, 2023), available

at https://tinyurl.com/343kwmd4.

- 18 -

symptom of the fundamental disease—the agency is

purporting to act as a “sort of junior-varsity

Congress,” wielding the powers that belong to the

legislative branch. Mistretta, 488 U.S. at 427 (Scalia,

J., dissenting). When that is the case, courts should

require the agency to “point to ‘clear congressional

authorization’ for the power it claims.” W. Virginia,

142 S. Ct. at 2609. This “clear-statement rule[]” will

“help courts ‘act as faithful agents of the

Constitution.’” Id. at 2616 (Gorsuch, J., concurring)

(citing A. Barrett, Substantive Canons and Faithful

Agency, 90 B. U. L. Rev. 109, 169 (2010)).11

II.

The Major Questions Doctrine Applies To

The Department’s Action Here Because

We Would Normally Expect Congress To

Decide Whether To Spend $500 Billion On

A Blanket Loan Forgiveness Program.

The Department’s decision to forgive up to $500

billion of federal loans implicates the very separationof-powers concerns that animate the major questions

doctrine. As an initial matter, the Department’s

decision to forgive debt is a dramatic (if slightly

Although the major questions doctrine unquestionably

narrows the scope of the Chevron doctrine, nothing in West

Virginia or this Court’s other major questions cases clearly

abandons the Chevron framework. But where, as here, the

agency is not merely providing an “administrative

interpretation” to an ambiguous statute but rather is exercising

authority vested in Congress under Article I, Chevron deference

is plainly inappropriate, and courts should require clear

congressional authorization.

11

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unorthodox) exercise of the appropriations power.

When Congress appropriated the funds it extended as

loans to federal borrowers, it did so on the condition

that it would be repaid with interest. Unilaterally

forgiving those loans retroactively converts them into

grants. Financially speaking, the Department’s

action is no different than the IRS creating a new tax

credit or unilaterally lowering the tax rate for certain

classes of federal taxpayers. Moreover, by “reduc[ing]

cash inflows to the Treasury,” the Department’s

action blows a half-trillion-dollar hole in the budget,

which “will increase the amounts that the federal

government borrows over time.”12 If the government

is unable or unwilling to borrow the necessary funds,

it will be forced to increase taxes to cover this new

spending. Given the looming fight in Congress over

when and by how much to raise the debt ceiling,

Congress undoubtedly has a strong interest in the

decision to add $500 billion to the federal debt.13

The Department’s loan forgiveness program also

has the appearance of being an administrative “work

around” in the face of congressional inaction. First,

the loan forgiveness program, announced two-and-a12 Cong. Budget Office, Costs of Suspending Student Loan

Payments and Canceling Debt at 1–2 (Sept. 26, 2022)

https://tinyurl.com/n932w7ht.

13 See Mini Racker, Why the Debt Ceiling Matters and What

Happens if Congress Refuses to Raise it, Time (Jan. 17, 2023) ,

https://tinyurl.com/yc7ptx4h (explaining that failure to raise the

debt ceiling would prevent the Treasury from borrowing enough

funds to cover existing spending commitments).

- 20 -

half months before the 2022 midterm election,

“follow[ed] through” on a promise that President

Biden made during the 2020 campaign.14 Indeed,

when announcing the program, a spokesperson for

the administration opined that “a post-high school

education should be a ticket to a middle-class life” but

that the “cost of borrowing for college is a lifelong

burden that deprives them of that opportunity.”15 The

spokesperson asserted that the plan “will benefit tens

of millions of middle-class Americans, their families,

and the economy as a whole.”16 That type of rhetoric

is typically used to unveil substantial new spending

programs or tax reductions. It is not the language of

an administrative agency striving to faithfully

implement existing law.

Second, while we might not expect Congress to

address individual requests for waivers and loan

forgiveness, the decision to spend half a trillion

dollars is an important fiscal decision that would

presumably elicit robust debate in Congress. And,

unsurprisingly, such debate has repeatedly taken

place. See, e.g., H.R. 2034, 117th Cong. (2021); H.R.

6800, 116th Cong. § 150117(h) (2020); S. 2235, 116th

Cong. (2019). Congress’ considered decision not to

enact a bill discharging hundreds of billions of dollars

The White House, Background Press Call by Senior

Administration Officials on Student Loan Relief (Aug. 24, 2022),

https://tinyurl.com/3rx8xcmu.

14

15 Ibid.

16 Ibid.

- 21 -

in student loans in response to the pandemic

highlights the political nature of the Department’s

decision.

Third, the Department’s Office of the General

Counsel previously concluded in a well-researched

and thoughtful memorandum that the agency lacked

any statutory authority to issue blanket loan

forgiveness.17 Whether or not that analysis was

correct, the agency’s sudden about-face on the key

question of its authority to issue across-the-board

loan forgiveness raises the specter that the agency—

under pressure to fulfill the President’s campaign

promise—is attempting to compensate for Congress’s

refusal to grant the desired relief. Accordingly, this

case is a quintessential major questions case.

The fact that the Department has purported to

appropriate and spend money, rather than regulate

conduct, does not change this outcome. True, an

agency

purporting

to

exercise

Congress’

appropriations power in a politicized manner may not

present the same direct threat to individual liberty as

an agency implementing an onerous economic

regulation. But such usurpation is every bit the threat

to the separation of powers, which is itself the

Constitution’s main structural bulwark against

tyranny. Indeed, when describing the powers the

17 Reed Rubinstein, Memorandum to Betsy DeVos Secretary

of Education, United States Department of Education, Office of

the

General

Counsel

(Jan.

12,

2021),

https://tinyurl.com/35ax82ju.

- 22 -

Constitution vested in Congress, Alexander Hamilton

listed the power of the purse before the power to

“prescribe[] the rules by which the duties and rights

of every citizen are to be regulated.” Hamilton, The

Federalist Papers, No. 78. James Madison similarly

“regarded” the “power over the purse” “as the most

complete and effectual weapon with which any

constitution can arm the immediate representatives

of the people, for obtaining a redress of every

grievance, and for carrying into effect every just and

salutary measure.” Madison, The Federalist Papers,

No. 58. Justice Story similarly observed that “it is

highly proper that [C]ongress should possess the

power to decide how and when any money should be

applied” “to the discharge of the expenses, debts, and

other engagements of the government.” 2 Story,

Commentaries on the Constitution of the United

States § 1348 (3d ed. 1858). “If it were otherwise, the

executive would possess an unbounded power over the

public purse of the nation; and might apply all its

moneyed resources at his pleasure.” Ibid.

As this Court put it more recently, the

“fundamental and comprehensive purpose” of the

Appropriations Clause is “to assure that public funds

will be spent according to the letter of the difficult

judgments reached by Congress as to the common

good and not according to the individual favor of

Government agents or the individual pleas of

litigants.” Office of Personnel Mgmt. v. Richmond, 496

U.S. 414, 427–28 (1990); see also Kate Stith, Congress’

Power of the Purse, 97 Yale L. J. 1343, 1349 (1988) (“If

Congress could not prohibit the Executive from

- 23 -

withdrawing funds from the Treasury, then the

constitutional grants of power to the legislature to

raise taxes and to borrow money would be for naught

because the Executive could effectively compel such

legislation by spending at will.”).

Given the importance of the power of the purse to

our constitutional structure, one would expect

Congress to make appropriations decisions, especially

since federal expenditures affect politically sensitive

decisions about how much to borrow and/or tax. The

Court should thus uphold the Department’s loan

forgiveness program only if the agency can identify a

“clear congressional authorization” for the power it

claims. W. Virginia, 142 S. Ct. at 2609. To satisfy that

rigorous standard, the agency must point to

“something more than a merely plausible textual

basis for the agency action.” Ibid. An “ambiguous

statutory text” cannot support the Department’s

politically significant assertion of authority. Utility

Air, 573 U.S. at 324.

CONCLUSION

This Court should clarify that the major questions

doctrine applies whenever an agency wields

legislative authority to set a policy that Congress

itself would normally be expected to establish.

Because the Department’s loan-forgiveness program,

which effectively converts $500 billion of federal loans

to grants is precisely the type of appropriation policy

Congress could be expected to make, the Court should

- 24 -

uphold the program only if the Department can point

to clear congressional authorization.

Respectfully

submitted,

JENNIFER B. DICKEY

JORDAN L. VON BOKERN

U.S. CHAMBER

LITIGATION CENTER

1615 H Street, NW

Washington, DC 20062

ROBERT E. DUNN

Counsel of Record

EIMER STAHL LLP

99 S. Almaden Blvd.

Suite 600

San Jose, CA 95113

(408) 889-1690

rdunn@eimerstahl.com

AMY MILLER

EIMER STAHL LLP

10 East Doty Street

Suite 621

Madison, WI 53703

Counsel for Amicus Curiae

February 3, 2023

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