Amicus Curiae Brief — Joseph R. Biden, President of the United States, et al., Applicants v. Nebraska, et al.
Supreme Court briefNov 22, 2022
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No. 22A444
IN THE
Supreme Court of the United States
JOSEPH R. BIDEN, JR.,
PRESIDENT OF THE UNITED STATES, ET AL.,
Applicants,
v.
STATE OF NEBRASKA, ET AL.,
Respondents.
On Application to Vacate the Injunction Entered by the United
States Court of Appeals for the Eighth Circuit
MOTION FOR LEAVE TO FILE AND BRIEF OF FORMER
REPRESENTATIVE GEORGE MILLER AS AMICUS
CURIAE IN SUPPORT OF APPLICATION TO VACATE
INJUNCTION
ELIZABETH B. WYDRA
BRIANNE J. GOROD*
SMITA GHOSH
J. ALEXANDER ROWELL
CONSTITUTIONAL
ACCOUNTABILITY CENTER
1200 18th Street NW, Suite 501
Washington, D.C. 20036
(202) 296-6889
brianne@theusconstitution.org
Counsel for Amicus Curiae
November 22, 2022
* Counsel of Record
No. 22A444
IN THE
Supreme Court of the United States
JOSEPH R. BIDEN, JR.,
PRESIDENT OF THE UNITED STATES, ET AL.,
Applicants,
v.
STATE OF NEBRASKA, ET AL.,
Respondents.
On Application to Vacate the Injunction Entered by the
United States Court of Appeals for the Eighth Circuit
MOTION FOR LEAVE TO FILE BRIEF OF
AMICUS CURIAE FORMER
REPRESENTATIVE GEORGE MILLER
Pursuant to Supreme Court Rule 37.2(b), amicus
curiae respectfully moves this Court for (1) leave to file
the accompanying brief in support of the application to
vacate the injunction and (2) to the extent leave is required, to file without 10 days’ advance notice to the
parties of amicus curiae’s intent to file. Respondents
consented to the filing of this brief, and Applicants
took no position on the filing.
Former Representative Miller was one of the chief
architects of the Higher Education Act and the Higher
Education Relief Opportunities for Students Act
(“HEROES Act”) of 2003, the legislation that
(i)
ii
authorized the targeted debt relief plan at issue in this
case. He is thus deeply familiar with the HEROES
Act. Indeed, he was a co-sponsor of the bill that became the HEROES Act of 2003, H.R. 1412, 108th
Cong., as well as related legislation in 2001, see H.R.
3086, 107th Cong.; in 2005, see H.R. 2132, 109th Cong.;
and in 2007, H.R. 3625, 110th Cong.
Furthermore, former Representative Miller has
frequently engaged with issues of higher education
policy. As a former member and chairman of the
House Education and Labor Committee, he has extensive expertise concerning the U.S. Department of Education and its role in managing the federal government’s portfolio of student loans. Accordingly, he has
an interest in this case.
Amicus therefore seeks leave to file the attached
brief urging the Court to vacate the injunction pending
appeal entered on November 14, 2022, by the United
States Court of Appeals for the Eighth Circuit. In the
proposed brief, amicus explains that the targeted debt
relief plan is authorized by the HEROES Act of 2003.
As he explains, the HEROES Act’s text and history
confirm that Congress gave the Secretary of Education
broad power to waive or modify laws affecting federal
student loans to address financial harms caused by national emergencies.
Moreover, given the expedited consideration of
this matter, amicus curiae respectfully requests leave
to file the brief without 10 days’ advance notice to the
parties of amicus curiae’s intent to file, to the extent
leave is required.
iii
Respectfully submitted,
ELIZABETH B. WYDRA
BRIANNE J. GOROD*
SMITA GHOSH
J. ALEXANDER ROWELL
CONSTITUTIONAL
ACCOUNTABILITY CENTER
1200 18th Street NW, Suite 501
Washington, D.C. 20036
(202) 296-6889
brianne@theusconstitution.org
Counsel for Amicus Curiae
November 22, 2022
* Counsel of Record
iv
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES .................................
v
INTEREST OF AMICUS CURIAE ......................
1
INTRODUCTION AND SUMMARY
OF ARGUMENT................................................
1
ARGUMENT .........................................................
6
I.
The Text of the HEROES Act Makes
Clear That the Secretary Has Broad
Authority to Respond to National
Emergencies ...............................................
6
II. The History of the HEROES Act
Confirms That It Authorizes Action as
Broad as Its Text Indicates........................
16
CONCLUSION .....................................................
23
v
TABLE OF AUTHORITIES
Page(s)
Cases
Ala. Ass’n of Realtors v. HHS,
141 S. Ct. 2485 (2021) ...........................
15
Balt. Gas & Elec. Co. v. F.E.R.C.,
252 F.3d 456 (D.C. Cir. 2001) ...............
11
Beecham v. United States,
511 U.S. 368 (1994) ...............................
9
Brooklyn Sav. Bank v. O’Neil,
324 U.S. 697 (1945) ...............................
7
Carr v. DeVos,
No. 19-cv-6597 (S.D.N.Y.) .....................
11
City of New York v. FCC,
486 U.S. 57 (1988) .................................
12
Concepcion v. United States,
142 S. Ct. 2389 (2022) ...........................
9
Dillon v. United States,
560 U.S. 817 (2010) ...............................
9
Fed. Energy Admin. v. Algonquin SNG,
Inc.,
426 U.S. 548 (1976) ...................................
12
vi
TABLE OF AUTHORITIES – cont’d
Page(s)
MCI Telecomm. Corp. v. Am. Tel. & Tel.
Co.,
512 U.S. 218 (1994) ...................................
8, 10
Merck & Co. v. U.S. Dep’t of Health
& Hum. Servs.,
962 F.3d 531 (D.C. Cir. 2020) .................
14
Missouri v. Biden,
142 S. Ct. 647 (2022) .................................
23
Mourning v. Fam. Publ’ns Serv.,
Inc.,
411 U.S. 356 (1973) ............................... 13, 14, 22
North Dakota ex rel. Bd. of Univ. & School
Lands v. Yeutter,
914 F.2d 1031 (8th Cir. 1990) ...................
12
S.C. Pub. Serv. Auth. v. FERC,
762 F.3d 41 (D.C. Cir. 2014) .................
7
Thorpe v. Hous. Auth. of Durham,
393 U.S. 268 (1969) ...................................
14
United States v. Griffin,
707 F.2d 1477 (D.C. Cir. 1983) .................
11
Util. Air Regul. Grp. v. EPA,
573 U.S. 302 (2014) ...................................
19
vii
TABLE OF AUTHORITIES – cont’d
Page(s)
Webster v. Doe,
486 U.S. 592 (1988) ...................................
12
Weingarten v. Devos,
468 F. Supp. 3d 322 (D.D.C. 2020) ...........
11
West Virginia v. EPA,
142 S. Ct. 2587 (2022) ...............................
15
Whitman v. American Trucking Ass’ns,
531 U.S. 457 (2001) ...................................
15
Statutes and Legislative Materials
34 C.F.R. § 30.70(e) ......................................
10
34 C.F.R. § 682.102(a) ..................................
7
34 C.F.R. § 682.209 ......................................
7
34 C.F.R. § 685.207(a) ..................................
7
147 Cong. Rec. H7132 (Oct. 23, 2001) .........
17
147 Cong. Rec. H7133 (Oct. 23, 2001) .........
17
147 Cong. Rec. H7134 (Oct. 23, 2001) .........
17
147 Cong. Rec. H10892 (Dec. 19, 2001) .......
17
149 Cong. Rec. H2525 (Apr. 1, 2003)...........
18
149 Cong. Rec. H2527 (Apr. 1, 2003)...........
18
149 Cong. Rec. H4586 (May 22, 2003).........
18
viii
TABLE OF AUTHORITIES – cont’d
Page(s)
151 Cong. Rec. H8111 (Sept. 20, 2005) .......
18
153 Cong. Rec. H10789 (Sept. 25, 2007) .....
18, 19
53 Fed. Reg. 33,427 (Aug. 30, 1988) ............
5, 10
68 Fed. Reg. 69,312 (Dec. 12, 2003).............
19
85 Fed. Reg. 15,337 (Mar. 18, 2020) ............
3
85 Fed. Reg. 79,856 (Dec. 11, 2020).............
4, 20
86 Fed. Reg. 5,008 (Jan. 19, 2021)...............
4, 20
87 Fed. Reg. 10,289 (Feb. 23, 2022).............
3
87 Fed. Reg. 61,512 (Oct. 12, 2022) .............
20
H. Rep. 122, 108th Cong. (2003) .................. 5, 18, 23
Higher Education Act, Pub. L. No. 89-329,
79 Stat. 1219 (1965) ..................................
2
Higher Education Amendments of 1992,
Pub. L. No. 102-325, 106 Stat. 448 ...........
2
Internal Revenue Manual § 20.1.3.2.7
(2010) .........................................................
7
National Defense Education Act of 1958,
Pub. L No. 85-864, 72 Stat. 1580 ..............
2
46 Op. O.L.C. 1 (Aug. 23, 2022) ...................
8, 20
Pub. L. No. 107-122, 115 Stat. 2386 (2002)
16, 17
ix
TABLE OF AUTHORITIES – cont’d
Page(s)
Pub. L. No. 108-76, 117 Stat. 904 (2003) ....
3, 18
Pub. L. No. 109-78, 119 Stat. 2043 (2005) ..
5
Pub. L. No. 110-93, 121 Stat. 999 (2007) .... 5, 17, 18
Pub. L. No. 116-136, § 3513, 134 Stat. 281
(2020) .........................................................
21
Pub. L. No. 117-2, § 9675, 135 Stat. 4
(2021) .........................................................
22
18 U.S.C. § 3582 ...........................................
9
20 U.S.C. § 1070(a).......................................
3
20 U.S.C. § 1082(a)....................................... 3, 10, 11
20 U.S.C. § 1087dd(c) ...................................
7
20 U.S.C. § 1087e(a) .....................................
10
20 U.S.C. § 1087hh.......................................
10
20 U.S.C. § 1096bb(a)...................................
7
20 U.S.C. § 1098aa(c) ...................................
6
20 U.S.C. § 1098bb(a)...................................
passim
20 U.S.C. § 1098bb(b)...................................
6, 14
42 U.S.C. § 1408 ...........................................
14
47 U.S.C. § 303(r) .........................................
12
x
TABLE OF AUTHORITIES – cont’d
Page(s)
Other Authorities
American Heritage Dictionary (4th ed.
2001)...........................................................
7, 8
Elizabeth Popp Berman & Abby Stivers,
“Student Loans as a Pressure on U.S.
Higher Education,” in The University
Under Pressure (Elizabeth Popp Berman
& Catherine Paradeise eds., 2016) ...........
2
Lawrence E. Gladieux, Federal Student
Aid Policy: A History and Assessment
U.S. Dep’t of Educ. (Oct. 1995) .................
1, 2
Sen. Robert Menendez, Press Release,
“Menendez, Warren Bill to Make
Student Loan Relief Tax-Free Passes as
Part of COVID Relief Package, Clearing
Hurdle for Broad Loan Forgiveness”
(Mar. 6, 2021) ............................................
22
Merriam-Websters’ Dictionary (11th ed.
2003)........................................................... 7, 8, 13
Off. Mgmt. & Budget, OMB Circular No.
A-11, Preparation, Submission, and
Execution of the Budget § 185.3(s) ...........
9
xi
TABLE OF AUTHORITIES – cont’d
Page(s)
U.S. Dep’t of Educ., Press Release, “BidenHarris Administration Announces Final
Student Loan Pause Extension Through
December 31 and Targeted Debt
Cancellation to Smooth Transition to
Repayment” (Aug. 24, 2022) .....................
4
U.S. Dep’t of Educ., Press Release,
“Delivering on President Trump’s
Promise, Secretary DeVos Suspends
Federal Student Loan Payments, Waives
Interest During National Emergency”
(Mar. 20, 2020) ..........................................
20
U.S. Dep’t of Educ., Press Release,
“Secretary DeVos Extends Student Loan
Forbearance Period Through January
31, 2021, in Response to COVID-19
National Emergency” (Dec. 4, 2020) .........
20
1
INTEREST OF AMICUS CURIAE1
During his forty-year career representing California’s seventh and eleventh congressional districts,
Representative George Miller frequently engaged with
issues of higher education policy. Indeed, he was one
of the chief architects of the HEROES Act of 2003, the
legislation that authorized the targeted debt relief
plan at issue in this case. He was a co-sponsor of the
bill that became the HEROES Act of 2003, H.R. 1412,
108th Cong., as well as related legislation in 2001, see
H.R. 3086, 107th Cong.; in 2005, see H.R. 2132, 109th
Cong.; and in 2007, H.R. 3625, 110th Cong. As a former member and chairman of the House Education
and Labor Committee, he also has extensive expertise
concerning the U.S. Department of Education and its
role in managing the federal government’s portfolio of
student loans. Accordingly, he has an interest in this
case.
INTRODUCTION AND
SUMMARY OF ARGUMENT
To facilitate the “democratization of college opportunities in the United States,” Congress has long provided for federal involvement in the student loan market. Lawrence E. Gladieux, Federal Student Aid Policy: A History and Assessment 43, U.S. Dep’t of Educ.
1 Under Rule 37.6 of the Rules of this Court, amicus states that
no counsel for a party authored this brief in whole or in part, and
no counsel or party made a monetary contribution intended to
fund the preparation or submission of this brief. No person other
than amicus or his counsel made a monetary contribution to its
preparation or submission.
2
(Oct. 1995). Indeed, in 1958, Congress created the first
federally funded, low-interest loans for college students, convinced that the “security of the Nation requires the fullest development of the mental resources
and technical skills of its young men and women.” National Defense Education Act of 1958, Pub. L. No. 85864, § 101, 72 Stat. 1580, 1581. Since then, lawmakers
have expanded educational access by providing guarantees for private loans, see Higher Education Act,
Pub. L. No. 89-329, 79 Stat. 1219 (1965), and authorizing direct loans to student borrowers from the government, see Higher Education Amendments of 1992,
Pub. L. No. 102-325, § 429, 106 Stat. 448; see generally
Appl. 4 (describing variety of loan programs encompassed under Title IV of the Higher Education Act).
These programs embody an “explicit federal commitment to equalizing college opportunities for needy
students,” Gladieux, supra, at 44, and aim to improve
higher education options through the mechanism of
student choice, see Elizabeth Popp Berman & Abby
Stivers, “Student Loans as a Pressure on U.S. Higher
Education,” in The University Under Pressure 129,
129-31 (Elizabeth Popp Berman & Catherine Paradeise eds., 2016) (noting that “policymakers are also
interested in encouraging competition for funding
among colleges in the hopes of improving their performance”).
In all of these laws, Congress enlisted federal
agencies to administer the federal government’s expansive student loan program. As relevant here, the
Higher Education Act (“HEA”) authorizes the Secretary of Education to regulate student loan programs in
order to “assist in making available the benefits of
3
postsecondary education to eligible students” through
the provision of federal financial aid. 20 U.S.C.
§ 1070(a). It gives the Secretary the specific authority
to “compromise, waive, or release any right, title,
claim, lien, or demand” acquired in the Secretary’s performance of his vested “functions, powers, and duties”
to administer federal student loans, id. § 1082(a), and
it generally authorizes the Secretary to “prescribe such
regulations as may be necessary to carry out the purposes of this part,” id. § 1082(a)(1).
In 2003, Congress passed the HEROES Act of
2003. Pub. L. No. 108-76, 117 Stat. 904. Like the
HEA, that Act contains a waiver provision providing
that the Secretary of Education “may waive or modify
any statutory or regulatory provision” that applies to
student loan programs, as he “deems necessary in connection with a . . . national emergency.” 20 U.S.C.
§ 1098bb(a)(1). It specifically permits the Secretary to
use this authority “as may be necessary to ensure that”
federal student-aid recipients who are affected by national emergencies “are not placed in a worse position
financially in relation to that financial assistance because of their status as affected individuals.” Id.
§ 1098bb(a)(2).
In March 2020, former President Trump declared
the COVID-19 pandemic to be a “national emergency.”
See 85 Fed. Reg. 15,337 (Mar. 18, 2020); see also 87
Fed. Reg. 10,289 (Feb. 23, 2022) (continuing this designation). Since then, education secretaries serving
under both President Trump and President Biden
have invoked the HEROES Act in response to the
COVID-19 pandemic. For example, they used this authority to pause students’ repayment obligations and
4
suspend interest accrual on Department-held student
loans. See 85 Fed. Reg. 79,856, 79,857 (Dec. 11, 2020);
86 Fed. Reg. 5,008, 5,008 (Jan. 19, 2021).
On August 24, 2022, Secretary of Education Miguel Cardona announced the Department of Education’s Student Debt Relief Plan, which paired a final
extension of the longstanding payment pause with targeted debt cancellation in order “[t]o address the financial harms of the pandemic by smoothing the transition back to repayment and helping borrowers at highest risk of delinquencies or default once payments resume.” U.S. Dep’t of Educ., Press Release, “BidenHarris Administration Announces Final Student Loan
Pause Extension Through December 31 and Targeted
Debt Cancellation to Smooth Transition to Repayment” (Aug. 24, 2022); see id. (explaining that the “targeted relief . . . will help ensure borrowers are not
placed in a worse position financially because of the
pandemic”). As the federal government explains in detail, the plan targets the unique financial risks posed
by the expiration of the pandemic-related pause of interest accrual and repayment obligations, in combination with the current economic conditions facing borrowers. See Appl. 9-11, 30-35; Appl. App. 34a-35a
(Memo from James Kvaal, Undersec’y of Educ., describing the “significant pressures” created by pandemic-related inflation and the expiration of the payment pause).
The states argue, among other things, that this
debt relief plan “exceeds the Secretary’s authority” under the HEROES Act. Appl. App. 2a. But this argument is at odds with the text and history of the Act.
The law’s plain text authorizes the Secretary to “waive
5
or modify” student loan provisions in response to certain conditions, clearly permitting the Secretary to reduce students’ debt burdens by way of waiver or modification of the laws requiring repayment. Indeed, this
is how the Department of Education and the courts
have understood the Secretary’s waiver authority for
decades. See, e.g., 53 Fed. Reg. 33,427 (Aug. 30, 1988)
(interpreting HEA provision permitting “waiver” of
student loan provisions to permit the Secretary to
“suspend or terminate collection of a debt, in any
amount” (emphasis added)). Furthermore, by allowing
waivers or modifications that the Secretary “deems
necessary” in response to a national emergency, 20
U.S.C. § 1098bb(a)(1), and authorizing “actions” that
“may be necessary to ensure” that certain goals are
met, id. at § 1098bb(a)(2), Congress gave the Secretary
broad discretion to determine when such waivers or
modifications might be necessary.
The history of the HEROES Act confirms what its
plain text makes clear. As amicus knows from his involvement in the drafting of the Act, Congress modeled
the HEROES Act of 2003 on a 2001 law that gave the
Secretary substantial authority to protect borrowers
who were affected by the September 11 terrorist attacks. While the HEROES Act was originally set to
expire in 2005, Congress then extended the Secretary’s
authority for two years, see Pub. L. No. 109-78, 119
Stat. 2043 (2005), and in 2007 made the Act permanent, see Pub. L. No. 110-93, 121 Stat. 999 (2007). At
each of these junctures, Congress gave the Secretary
of Education broad discretion and “flexibility” to protect student loan recipients from military emergencies,
national disasters, and any “unforeseen issues that
6
may arise.” H. Rep. 122, 108th Cong., at 8 (2003). Secretaries across administrations have used that authority on several occasions both before and during the
COVID pandemic. Thus, far from cabining the Secretary to “relatively narrow[]” action, States’ Mot. Inj.
Pending Appeal at 18, Nebraska v. Biden, No. 22-3179
(8th Cir. Nov. 14, 2022), the Act confers significant authority on the Secretary to ease the burdens on borrowers who have been affected by unexpected national
emergencies. And that is exactly what the Secretary
has done here.
ARGUMENT
I.
The Text of the HEROES Act Makes Clear
That the Secretary Has Broad Authority to
Respond to National Emergencies.
The HEROES Act gives the Secretary of Education
the authority to “waive or modify any statutory or regulatory provision” regarding federal student-loan programs “as the Secretary deems necessary in connection with a . . . national emergency.” 20 U.S.C.
§ 1098bb(a)(1). The Secretary is authorized to exercise
this authority “as may be necessary to ensure” that
federal student-aid recipients who are affected by national emergencies “are not placed in a worse position
financially in relation to that financial assistance because of their status as affected individuals.” Id.
§ 1098bb(a)(2). The Secretary “is not required to exercise the waiver or modification authority” under the
HEROES Act “on a case-by-case basis.”
Id.
§ 1098bb(b)(3).
7
A. The text of the HEROES Act authorizes the
Secretary of Education to reduce or eliminate a borrower’s debt obligation.
By allowing the Secretary to waive or modify “statutory or regulatory provision[s] applicable to the student financial assistance programs under title IV” of
the HEA, id. § 1096bb(a); id. § 1098aa(c) (“References
in this part to ‘the Act’ are references to the Higher
Education Act of 1965.”), the Act allows the Secretary
to reduce or eliminate a borrower’s debt burden. As an
initial matter, the provisions requiring individuals to
repay student loans are “statutory or regulatory provision[s] applicable to the student financial assistance
programs under title IV.” Id. § 1098bb(a)(1); see, e.g.,
id. § 1087dd(c) (requiring loan agreements to “provide[] for repayment of the principal amount of the
loan”); 34 C.F.R. § 685.207(a)(1) (“[a] borrower is obligated to repay the full amount of a Direct Loan”); id.
§ 682.102(a) (“[a] borrower is obligated to repay the
full amount” of a loan under the FFEL Program); id.
§ 682.209 (“Repayment of a loan.”).
By permitting the Secretary to “waive” these provisions, the Act permits the Secretary to “give up,” “relinquish,” or “refrain from . . . enforcing” them. Waive,
Merriam-Websters’ Dictionary 1406 (11th ed. 2003);
Waive, American Heritage Dictionary 914 (4th ed.
2001) (“give up (a claim or right) voluntarily”).
“Waive” is often used to refer to a decision to decline to
seek payment of an amount owed. See Brooklyn Sav.
Bank v. O’Neil, 324 U.S. 697, 704 (1945) (understanding a damages waiver as a “bar[ to] subsequent action
to recover” those damages); S.C. Pub. Serv. Auth. v.
FERC, 762 F.3d 41, 80 (D.C. Cir. 2014) (understanding
8
“waive” as “promising not to penalize”); Internal Revenue Manual § 20.1.3.2.7 (2010) (“Waivers are sometimes granted . . . to provide relief from estimated tax
penalties” and to allow the IRS to “cancel an estimated
tax penalty.”).
And by authorizing the Secretary to “modify”
these provisions, the Act allows him to change them so
that the amount of a student debtor’s loan obligation
is reduced. American Heritage Dictionary 545 (4th ed.
2001) (defining “modify” as “change,” “make . . . less
extreme, severe, or strong”); Modify, Merriam-Websters’ Dictionary 1406 (11th ed. 2003) (“to make less
extreme”). To be sure, this Court has observed that
the term “modify” sometimes connotes only limited or
incremental changes, see MCI Telecomm. Corp. v. Am.
Tel. & Tel. Co., 512 U.S. 218, 225 (1994); see 46 Op.
O.L.C. 1, 10 (Aug. 23, 2022), but that is only when surrounding context suggests that connotation. In MCI,
this Court held that the FCC’s authority to “modify”
tariff filing requirements did not “contemplate” a rule
that would exempt most of the regulated market from
filing at all. 512 U.S. at 228. But the Court in MCI
did not look at the definition of “modify” alone. Rather,
it found “further indication” from the context in which
the word was used—the fact that the section authorizing modification contained a “sole exception” that prohibited the modification of a notice period. The disjuncture between the FCC’s broad reading of the modification authority and the very specific exception led
this Court to interpret narrowly the word “modify.” Id.
at 229 (“Is it conceivable that the statute is indifferent
to the Commission’s power to [make broad
9
modifications] and yet strains out the gnat of extending the waiting period for tariff revision beyond 120
days?”).
By contrast, in the HEROES Act, the term “modify” appears as part of the phrase “waive or modify.”
20 U.S.C. § 1098bb(a)(1). There are no “exceptions” to
the modification authority. In fact, the authority exists “[n]otwithstanding any other provision of law,” id.,
and alongside the companion authority to “waive” provisions, see Beecham v. United States, 511 U.S. 368,
371 (1994) (“That several items in a list share an attribute counsels in favor of interpreting the other
items as possessing that attribute as well.”).
Furthermore, the word “modify” can, in some circumstances, refer to “substantial” changes up to and
including the elimination of certain obligations in their
entirety. For example, the power to “modify” a term of
imprisonment under 18 U.S.C. § 3582(c)(2) gives
courts “the power to ‘reduce’ an otherwise final sentence” by any degree, Dillon v. United States, 560 U.S.
817, 825-26 (2010) (any reduction authorized so long
as it aligns with § 3582(c)(2)’s reference to Sentencing
Commission guidance); Concepcion v. United States,
142 S. Ct. 2389, 2398 (2022) (the “broad discretion” of
federal courts at sentencing “carries forward to later
proceedings that may modify an original sentence”).
And in federal budgeting, the authority to “modify” a
loan authorizes “changes [to] the estimated cost of an
outstanding direct loan” and can include “forgiveness.”
Off. Mgmt. & Budget, OMB Circular No. A-11, Preparation, Submission, and Execution of the Budget
§ 185.3(s); see id. (“Modifications produce a one-time
change in the subsidy cost of outstanding direct loans
10
(or direct loan obligations).”). Even when interpreting
the Communications Act in MCI, this Court noted that
the FCC’s modification authority could be used to “defer filing or perhaps even waive it altogether in limited
circumstances.” 512 U.S. at 234 (emphasis added).
In short, the HEROES Act permits the reduction
or elimination of a student borrower’s debt burden by
allowing the Secretary to “relinquish” or “make more
moderate” the provisions that require repayment of
student loans. This understanding of “waive” and
“modify” aligns with the way that agencies have interpreted these terms in similar statutory provisions. For
example, the HEA has long authorized the Secretary
to “modify,” 20 U.S.C. § 1082(a)(4), or “compromise,
waive, or release” any “right, title, claim, lien, or demand” acquired in the Secretary’s performance “functions, powers, and duties” to administer federal student loans, id. § 1082(a)(6) (regarding FFELP loans);
see also 20 U.S.C. § 1087hh(1), (2) (Perkins Loans); id.
§ 1087e(a) (making Direct Loans subject to “the same
terms, conditions, and benefits as [FFELP]”). Regulations interpreting these provisions have permitted the
agency to “terminate collection of a debt in any
amount.” 34 C.F.R. § 30.70(e)(1) (effective July 1,
2017) (emphasis added); 53 Fed. Reg. § 33,427 (Aug.
30, 1988) (codified at former 34 C.F.R. § 30.70(h))
(“Notwithstanding [the Department’s other settlement
authorities] the Secretary may compromise a debt, or
suspend or terminate collection of a debt, in any
amount if the debt arises under [the FFELP or Perkins
Loan Program].” (emphasis added)). In some cases,
the Department has used its modification authority to
eliminate a student’s debt obligations entirely. See
11
Carr v. DeVos, No. 19-cv-6597 (S.D.N.Y.), Dkt. No. 151 (Decl. of Cristin Bulman) (noting that one plaintiff’s
“loans were modified by the Secretary pursuant to 20
U.S.C. § 1082(a)(4), resulting in balances of $0.00”);
Gov’t Opp. Mot. Inj. Pending Appeal at 27, Nebraska
v. Biden, No. 22-3179 (8th Cir. Nov. 14, 2022) (citing
cancellation actions for students of closed schools).
Courts have also permitted the Department of Education and its predecessor, the Office of Education, to
use the “waiver” authority to “decline to enforce” rights
against a student, so long as the declination is “in the
larger interests of the student loan program.” United
States v. Griffin, 707 F.2d 1477, 1482 (D.C. Cir. 1983);
Carr, No. 19-cv-6597 (S.D.N.Y.), Dkt. No. 16 (Stipulation of Dismissal). And courts have also held that the
Secretary’s decision to exercise this waiver authority
“is committed to [her] absolute discretion.”
Weingarten v. Devos, 468 F. Supp. 3d 322, 338 (D.D.C.
2020) (citing Balt. Gas & Elec. Co. v. F.E.R.C., 252
F.3d 456, 459 (D.C. Cir. 2001)).
B. The statute’s plain text also authorizes the Secretary to reduce student loan balances in response to
the COVID-19 pandemic. The HEROES Act gives the
Secretary the discretion to waive loan provisions as he
or she “deems necessary in connection with a . . . national emergency.” 20 U.S.C. § 1098bb(a)(1). The Secretary is authorized to exercise this authority “as may
be necessary to ensure” that federal student-aid recipients who are affected by national emergencies “are
not placed in a worse position financially in relation to
that financial assistance because of their status as affected individuals.” Id. § 1098bb(a)(2).
12
This text plainly grants the Secretary broad discretion to determine what relief is appropriate for student borrowers affected by a national emergency. The
phrase “deems necessary” “fairly exudes deference” to
the Secretary, Webster v. Doe, 486 U.S. 592, 600 (1988),
and confers “legitimate discretionary power,” City of
New York v. FCC, 486 U.S. 57, 67 (1988) (interpreting
the phrase “may be necessary” in 47 U.S.C. § 303(r));
North Dakota ex rel. Bd. of Univ. & School Lands v.
Yeutter, 914 F.2d 1031, 1035 (8th Cir. 1990) (statute
permitting waiver “if the Secretary determines” that
certain conditions are met “fairly exudes deference” to
the Secretary).
In Webster, this Court emphasized the importance
of the word “deem” in a statute granting the Director
of the Central Intelligence Agency the authority to terminate an employee “whenever he shall deem such termination necessary or advisable in the interests of the
United States.” Webster, 486 U.S. at 615. “[I]t should
be noted,” the Court explained, that the statute “allows
termination of an Agency employee whenever the Director ‘shall deem such termination necessary or advisable in the interests of the United States’ . . . not
simply when the dismissal is necessary or advisable to
those interests.” Id. at 600. Congress’s use of the word
“deem” underscored that the termination decision was
committed to the Director’s discretion. Id.; see id. at
615-16 (Scalia, J., dissenting) (noting that it was “compellingly obvious” that the statutory text committed
“individual employee discharges to the Director’s discretion,” but disagreeing with the conclusion that the
Director’s decision was reviewable for constitutional
defect); Fed. Energy Admin. v. Algonquin SNG, Inc.,
13
426 U.S. 548, 561 (1976) (interpreting a statute authorizing the president to “take such action, and for
such time, as he deems necessary” in a particular circumstance to “clearly . . . grant him a measure of discretion”). Like the statute at issue in Webster, the HEROES Act “exudes deference” to the Secretary to determine when a waiver or modification of loan-related
provisions is appropriate.
To be sure, § 1098bb(a)(2) guides the Secretary’s
discretion by specifying the circumstances in which
certain relief is appropriate, but even this guidance
confers “broad authority” on the Secretary. Mourning
v. Fam. Publ’ns Serv., Inc., 411 U.S. 356, 365 (1973).
This subsection provides that the Secretary may waive
or modify student loan conditions “as may be necessary to ensure” that borrowers who are affected by national emergencies “are not placed in a worse position
financially in relation to that financial assistance because of their status as affected individuals,” 20 U.S.C.
§ 1098bb(a)(2)(A), and that administrative requirements placed on these borrowers are “minimized . . . to
the extent possible without impairing the integrity of
the student financial assistance programs, to ease the
burden on such students and avoid inadvertent, technical violations or defaults,” id. § 1098bb(a)(2)(B).
By authorizing actions that “may be necessary to
ensure” that certain goals are met, id. § 1098bb(a),
Congress empowered the Secretary to take actions
necessary to “make sure” or “make certain” those goals
are satisfied. Ensure, Merriam-Websters’ Dictionary
416 (11th ed. 2003). In other words, this language
merely guides—rather than eliminates—the Secretary’s discretion. Indeed, when interpreting similar
14
language in a statute’s general rulemaking provision,
this Court explained that provisions allowing agencies
to “make . . . such rules and regulations as may be necessary to carry out the provisions of this Act,” Mourning, 411 U.S. at 369 (1973) (citing 42 U.S.C. § 1408),
require a “reasonabl[e]” relationship between the provisions of the Act and an agency’s regulation, id. (citing Thorpe v. Hous. Auth. of Durham, 393 U.S. 268,
280-81 (1969)); see also Merck & Co. v. U.S. Dep’t of
Health & Hum. Servs., 962 F.3d 531, 537-38 (D.C. Cir.
2020) (when a statute authorized regulations “necessary to carry out the administration of” the Medicare
and Medicaid programs, it authorized regulations with
an “actual and discernible nexus” to the “conduct or
management” of those programs). As the federal government explains in detail, the plan at issue here
bears a “reasonable relationship” and a “discernible
nexus” to the goals in § 1098bb(a)(2). See Appl. 18-20;
Appl. App. 36a (describing “Rationale for PandemicConnected Loan Discharge Program”).
Finally, other contextual cues confirm the breadth
of the Secretary’s discretion. First, the Act exempts
any waiver or modification decision from many procedural requirements, including notice-and-comment
rulemaking under the Administrative Procedure Act.
20 U.S.C. § 1098bb(b)(1), (d). Second, the Act specifically provides that the Secretary “is not required to exercise the waiver or modification authority . . . on a
case-by-case basis.” Id. § 1098bb(b)(3). Finally, the
Act specifies that the Secretary can use the waiver and
modification authority “[n]otwithstanding any other
provision of law, unless enacted with specific reference
to this section.” Id. § 1098bb(a)(1). By freeing the
15
Secretary from the constraints of procedural obligations and individualized decision-making, Congress
made clear its plan to vest the Secretary with broad
discretion to take any actions that he deems necessary
to ensure that student borrowers are not negatively affected by national emergencies.
C. Finally, as amicus well knows from his participation in the drafting of the HEROES Act, the states’
contention that the loan-forgiveness plan “exceeds the
Administration’s authority” is completely without
merit. States’ Mot. Inj. Pending Appeal at 1, Nebraska
v. Biden, No. 22-3179 (8th Cir. Nov. 14, 2022). In fact,
the Secretary’s plan is exactly the type of initiative
that the Act authorizes. By using broad terms, the
HEROES Act gives the Secretary the authority to
make the type of “major policy decision[],” id. at 17, at
issue here—an appropriate exercise of the authority
that Congress has delegated to the education agency
to facilitate the administration of student loans. See
supra 2-3; see also Ala. Ass’n of Realtors v. HHS, 141
S. Ct. 2485, 2489 (2021) (considering whether an
agency action was within the agency’s “particular domain”); West Virginia v. EPA, 142 S. Ct. 2587, 2612-13
(2022) (“When an agency has no comparative expertise
in making certain policy judgments, we have said,
Congress presumably would not task it with doing so.”
(quotation marks omitted)).
It may be that Congress does not “hide elephants
in mouseholes,” Whitman v. American Trucking
Ass’ns, 531 U.S. 457, 468 (2001), but here the statute
places the elephant in plain sight. Because the statute
clearly authorizes the Secretary to take broad action,
it authorizes policy decisions—even allegedly “major”
16
ones, States’ Mot. Inj. Pending Appeal at 17, Nebraska
v. Biden, No. 22-3179 (8th Cir. Nov. 14, 2022)—like the
debt relief plan. And as the next Section explains, the
history of the HEROES Act only confirms that the
statute authorizes just the type of broad relief envisioned by the Secretary’s targeted debt relief plan.
II. The History of the HEROES Act Confirms
that It Authorizes Action as Broad as Its
Text Indicates.
The HEROES Act’s history further confirms the
breadth of the Secretary’s authority to waive and modify student loan provisions in response to national
emergencies.
A. In the HEROES Act of 2003, Congress provided
the Secretary with the flexibility to adopt a wide variety of responses to unforeseen circumstances.
A few months after the September 11 terrorist attacks, Congress passed the HEROES Act of 2001,
“provid[ing] the Secretary of Education with specific
waiver authority to respond to conditions in the national emergency declared by the President on September 14, 2001,” “or subsequent national emergencies declared by the President by reason of terrorist attacks.” Pub. L. No. 107-122, 115 Stat. 2386, 2388
(2002). It authorized the Secretary to “waive or modify
any statutory or regulatory provision applicable to”
student loan programs “as may be necessary to ensure
that” individuals affected by the terrorist attacks—
which included those who “suffered direct economic
hardship as a direct result,” id. at 2386, 2388—were
“not placed in a worse position financially in relation
17
to those loans” because they were affected by the attacks, id. at 2386.
When debating this bill, members of Congress emphasized the flexibility it provided to the Secretary of
Education. Amicus Representative Miller, for example, noted that the Act gave the Secretary the power to
“adjust the laws governing student aid programs, if
necessary, in response to the September 11 attacks.”
147 Cong. Rec. H10892 (Dec. 19, 2001). Another Member explained that these adjustments would allow the
Secretary to “reduce the effects of . . . upheaval” for
students and their families. 147 Cong. Rec. H7132
(Oct. 23, 2001) (Rep. McKeon).
Representative
Boehner explained that the bill “addresses the issue
arising from what has occurred,” but “also allows the
Secretary to address needs arising from incidents that
may occur in the future,” 147 Cong. Rec. H7133 (Oct.
23, 2001), gesturing toward the Secretary’s authority
to respond to future terrorism-related emergencies, see
115 Stat. 2388.
Furthermore, lawmakers recognized that the Secretary might take broad action in exercise of that authority. They explained, for example, that the law enabled the Secretary to “relax repayment obligations,”
and “reduce or delay monthly student loan payments.”
See 147 Cong. Rec. H7133 (Oct. 23, 2001) (Rep.
Boehner). And in response to the contention that the
law authorized “too much compensation,” one lawmaker observed that this was “a ridiculous discussion,” because Congress did “not have the capacity to
give too much.” 147 Cong. Rec. H7134 (Oct. 23, 2001)
(Rep. Owens).
18
Shortly before the expiration of the 2001 Act, Congress passed the HEROES Act of 2003, which expanded the Secretary’s authority. Specifically, the
HEROES Act of 2003 broadened the definition of “affected individuals” to include student debtors affected
by any presidentially declared national emergency, rather than only those relating to terrorism. See 117
Stat. 905-6 (2003).
When passing the HEROES Act of 2003, lawmakers continued to emphasize the breadth of discretion
that it gave the Secretary. A House Report described
an amendment containing the HEROES Act as
“[p]rovid[ing] the Secretary with the authority to implement waivers deemed necessary and not yet contemplated.” H. Rep. 122, 108th Cong. (2003), at 9; id.
at 8 (adding that the law “[g]rants the Secretary of Education specific waiver authority within Title IV of the
Higher Education Act to provide relief to those affected
by . . . any unforeseen issues that may arise”). Members also made clear that the law would allow the Secretary “to act quickly should a situation arise that has
not been considered,” 149 Cong. Rec. H2525 (Apr. 1,
2003) (Rep. McKeon), and would provide the flexibility
to “address events now unforeseen,” id. at H2527 (Rep.
Holt); 149 Cong. Rec. H4586 (May 22, 2003) (Rep. Kildee) (urging the Secretary to “use[] the authority we
grant him,” including to pause the accrual of interest
on servicemembers’ loans).
This “flexibility” was also central to Congress’s
plan when it reauthorized the HEROES Act in 2005,
see 151 Cong. Rec. H8111 (Sept. 20, 2005) (Rep. Kline),
and made its provisions permanent in 2007, see 153
Cong. Rec. H10789 (Sept. 25, 2007) (Rep. Sestak)
19
(“Without prompt passage of H.R. 3625, the Secretary’s authority to provide this flexibility will expire at
the end of this week.”). Indeed, in making the Act permanent, Congress stated its “sense” that the Act authorized broad action in unforeseen “situations.” 121
Stat. 999. In addition to military emergencies, lawmakers explained that this flexibility would help the
Secretary respond to “unforeseen national emergencies,” including Hurricane Katrina, 153 Cong. Rec.
H10789 (Sept. 25, 2007) (Rep. Kline); id. (Rep. Sestak)
(referencing “national emergencies and natural disasters”).
B. The states claim that the Education Department has used a novel, “unheralded power” to enact its
loan forgiveness program. See Util. Air Regul. Grp. v.
EPA, 573 U.S. 302, 324 (2014). This is incorrect: from
the very beginning, the HEROES Act of 2003 has been
used by the Secretary of Education to assist borrowers
affected by national emergencies.
The Department of Education published its first
notice of waivers and modifications pursuant to the
Act in December 2003. 68 Fed. Reg. 69,312 (Dec. 12,
2003). While a small subset of these waivers and modifications applied only to those on military duty, most
applied more broadly. Id. at 69,313-18. For example,
the Secretary waived certain requirements for affected
individuals, including those who “reside or are employed in a disaster area,” to make it easier for them
to qualify for loan cancellation programs. Id. at
69,314-17.
After Congress made the Act permanent in 2007,
reiterating that the statute addresses situations faced
20
by “active duty military personnel and other affected
individuals,” 121 Stat. 999 (emphasis added), the Education Department continued to address the needs of
these individuals. On several occasions, most recently
in 2017, it extended and renewed nearly all of its 2003
HEROES Act waivers and modifications without major changes. See 46 Op. O.L.C. 1, 5-6 (Aug. 23, 2022).
Additionally, Secretaries of Education in the
Trump and Biden administrations have used their
HEROES Act authority to issue broad waivers and
modifications in response to the COVID-19 pandemic.
After President Trump declared a national emergency
in March 2020, Secretary Betsy DeVos used her HEROES Act authority to set the interest rates of federal
student loans to zero and allow all borrowers to suspend payments without penalty for “at least two
months.” U.S. Dep’t of Educ., Press Release, “Delivering on President Trump’s Promise, Secretary DeVos
Suspends Federal Student Loan Payments, Waives Interest During National Emergency” (Mar. 20, 2020);
see also 85 Fed. Reg. 79,856, 79,857 (Dec. 11, 2020);
U.S. Dep’t of Educ., Press Release, “Secretary DeVos
Extends Student Loan Forbearance Period Through
January 31, 2021, in Response to COVID-19 National
Emergency” (Dec. 4, 2020). The broad interest-free
payment pause was repeatedly extended by Education
Secretaries DeVos and Miguel Cardona pursuant to
their HEROES Act authority. See 85 Fed. Reg. 79,856,
79,856-57 (Dec. 11, 2020); 86 Fed. Reg. 5,008, 5,008
(Jan. 19, 2021); 87 Fed. Reg. 61,512, 61,513-14 (Oct.
12, 2022).
While the states object to the Plan because it provides relief for “every borrower who resides or is
21
employed in the United States or abroad,” no matter
how they were financially affected by the pandemic,
States’ Mot. Inj. Pending Appeal at 17, Nebraska v.
Biden, No. 22-3179 (8th Cir. Nov. 14, 2022), the interest-free payment pauses enacted by Secretaries Devos
and Cardona swept even more broadly. These pauses
applied to “all borrowers with federally held student
loans,” March 2020 Press Release, supra, at 1 (quoting
Secretary DeVos’s statement that “everyone should be
focused on staying safe and healthy, not worrying
about their student loan balance growing”). Before the
district court, the states contended that DeVos’s action
was permissible under the HEROES Act. See State of
Nebraska, et al., v. Joseph R. Biden Jr., et al., U.S. District Court for the Eastern District of Missouri,
YouTube
(Oct.
11,
2022),
39:40-41:30,
https://www.youtube.com/watch?v=iA8wm41bk2Q.
Rather than disapproving of any of these initiatives, Congress indicated awareness and even encouragement. Soon after Secretary DeVos’s initial invocation of the HEROES Act in response to COVID-19,
Congress enacted the CARES Act, which effectively
ratified and extended this action. Specifically, the
CARES Act directed the Secretary to “suspend all payments due for loans . . . through September 30, 2020”
and provided that “interest shall not accrue” during
that payment pause. Pub. L. No. 116-136, § 3513, 134
Stat. 281, 404-05 (2020). And in March 2021, Congress
enacted COVID relief legislation that eliminated a policy barrier to debt forgiveness under the HEROES Act.
The American Rescue Plan included a provision that
exempted student debt discharges in 2021 through
2025 from federal taxable income, clearing the way for
22
the Secretary to forgive student debt without triggering a costly federal tax bill for recipients that could, at
least in the short term, leave them worse-off as a result
of the relief. Pub. L. No. 117-2, § 9675, 135 Stat. 4,
185-86 (2021). An author of the provision, Senator
Robert Menendez, explained that he was “hopeful this
will pave the way for President Biden to provide real
debt relief so many student borrowers need.” Senator
Robert Menendez, Press Release, “Menendez, Warren
Bill to Make Student Loan Relief Tax-Free Passes as
Part of COVID Relief Package, Clearing Hurdle for
Broad Loan Forgiveness” (Mar. 6, 2021).
***
In summary, the HEROES Act provides that the
Secretary may “waive or modify” student loan conditions “as he deems necessary in connection with a . . .
national emergency” to ensure that affected borrowers
“are not placed in a worse position financially in relation to that financial assistance because of their status
as affected individuals.” 20 U.S.C. § 1098bb(a)(2)(A).
In this case, the Secretary determined that “many borrowers will be at heightened risk of loan delinquency
and default” when transitioning into repayment after
the expiration of the payment pause, and that forgiving a limited amount of student debt for certain borrowers would ensure that they were “not placed in a
worse position financially by the COVID-19 national
emergency as they restart payments.” App. 34a
(Memo from James Kvaal, Undersec’y of Educ.).
The Secretary’s action is a “reasonable” exercise of
the authority to “waive or modify” student loan conditions that he enjoys under the plain text of the
23
HEROES Act, Mourning, 411 U.S. at 369, and it also
aligns with Congress’s plan in passing that statute.
The targeted debt forgiveness program “provide[s] relief” in response to the “unforeseen issues” presented
by this unprecedented multi-year emergency. H. Rep.
122, 108th Cong. (2003), at 2. Indeed, the breadth of
the debt relief plan reflects the breadth of the economic
hardship created by the pandemic and the sobering
fact that the Department of Education “has never had
to address [a] . . . problem of this scale and scope before.” Missouri v. Biden, 142 S. Ct. 647, 653 (2022).
CONCLUSION
For the foregoing reasons, this Court should grant
the emergency application to vacate the injunction.
Respectfully submitted,
ELIZABETH B. WYDRA
BRIANNE J. GOROD*
SMITA GHOSH
J. ALEXANDER ROWELL
CONSTITUTIONAL
ACCOUNTABILITY CENTER
1200 18th Street NW, Suite 501
Washington, D.C. 20036
(202) 296-6889
brianne@theusconstitution.org
Counsel for Amicus Curiae
November 22, 2022
* Counsel of Record
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.