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, LEAVE TO FILE WITHOUT 10 DAYS’
NOTICE, AND LEAVE TO FILE ON 8½- BY 11-INCH PAPER, AND BRIEF
OF LAW PROFESSORS AS AMICI CURIAE IN SUPPORT OF
APPLICANTS’ APPLICATION TO VACATE THE INJUNCTION ENTERED
BY THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH
CIRCUIT
JEFFREY B. DUBNER
Counsel of Record
SEAN A. LEV
AMAN T. GEORGE
SARAH R. GOETZ
DEMOCRACY FORWARD FOUNDATION
P.O. Box 34553
Washington, DC 20043
(202) 383-0794
jdubner@democracyforward.org
Counsel for Amici Curiae
Amici curiae are law professors at law schools around the nation. They
respectfully move for leave to file the enclosed brief in support of Applicants’
application to vacate the injunction entered by the United States Court of Appeals
for the Eighth Circuit pending appeal of the preliminary injunction issued by the
United States District Court for the Eastern District of Missouri, including leave to
file without ten days’ notice to the parties, as ordinarily required by this Court’s Rule
37.2(a), and leave to file in 8½-by-11-inch format, as provided in Rule 33.2. Amici are:
•
William Araiza, Stanley A. August Professor of Law, Brooklyn
Law School
•
Matthew Bruckner, Associate Professor of Law, Howard
University School of Law
•
Erwin Chemerinsky, Dean, and Jesse H. Choper
Distinguished Professor of Law, University of California,
Berkeley School of Law
•
Pamela Foohey, Professor of Law, Indiana University Maurer
School of Law
•
Jonathan Glater, Professor, University of California, Berkeley
School of Law
•
Luke Herrine, Assistant Professor of Law, University of
Alabama School of Law
•
Dalié Jiménez, Professor of Law, and Director, Student Loan
Law Initiative, University of California, Irvine School of Law
•
Jeffrey Lubbers, Professor of Practice in Administrative Law,
American University Washington College of Law
•
Chrystin Ondersma, Professor of Law, and Judge Morris Stern
Scholar, Rutgers Law School
•
Peter Shane, Jacob E. Davis and Jacob. E. Davis III Chair in
Law, Ohio State University Moritz College of Law, &
Distinguished Scholar in Residence, and Adjunct Professor of
Law, New York University School of Law
1
•
Peter Strauss, Betts Professor Emeritus of Law, Columbia
Law School
Amici’s professional expertise includes scholarship regarding student
financial assistance programs under Title IV of the Higher Education Act of 1965,
consumer finance, administrative and constitutional law, this Court’s modes of
statutory interpretation, and the development of precedent concerning the major
questions doctrine. Amici have a strong interest in assisting this Court in resolving
questions of law that go to the core of their professional expertise.
The attached brief reflects Amici’s engagement with the statutory text of the
HEROES Act of 2003 and this Court’s precedents regarding the interpretation of that
text, as well as the authority of administrative agencies more generally to act under
authority granted to them by Congress. Accordingly, the proposed brief will assist the
Court because it applies this Court’s interpretive methodology to a heretoforeunlitigated act of Congress, demonstrating that the waiver announced by the
Secretary of Education is authorized by the statute and that maintaining the Eighth
Circuit’s stay of the District Court’s judgment is not justified by Respondents’ low
likelihood of success on the merits.
Counsel for Amici have consulted with the parties’ counsel. In light of the
briefing schedule, it was not feasible to give the parties ten days’ notice of filing of
this brief, but counsel for Amici informed counsel for all parties on November 18 (the
day that Applicants filed their Application with this Court) of their intent to file.
Applicants take no position on this motion. Counsel for Respondents have consented
to the timely filing of an amicus brief.
2
To the extent that leave is required, Amici respectfully move for leave to
file the attached brief on 8½- by 11-inch paper rather than in booklet form, given the
expedited nature of the briefing. Should the Clerk’s Office, the Circuit Justice, or the
Court so require, Amici commit to re-filing expeditiously in booklet format. See S. Ct.
Rule 21.2(c).
For the foregoing reasons, Amici respectfully move for leave to file the
attached amicus curiae brief in support of Applicants’ application for a stay of the
injunction pending appeal.
Dated: November 22, 2022
Respectfully submitted,
/s/ Jeffrey B. Dubner
JEFFREY B. DUBNER
Counsel of Record
SEAN A. LEV
AMAN T. GEORGE
SARAH R. GOETZ
DEMOCRACY FORWARD FOUNDATION
P.O. Box 34553
Washington, DC 20043
(202) 383-0794
jdubner@democracyforward.org
Counsel for Amici Curiae
3
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
BRIEF OF LAW PROFESSORS AS AMICI CURIAE IN SUPPORT OF
APPLICANTS’ APPLICATION TO VACATE THE INJUNCTION ENTERED
BY THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH
CIRCUIT
JEFFREY B. DUBNER
Counsel of Record
SEAN A. LEV
AMAN T. GEORGE
SARAH R. GOETZ
DEMOCRACY FORWARD FOUNDATION
P.O. Box 34553
Washington, DC 20043
(202) 383-0794
jdubner@democracyforward.org
Counsel for Amici Curiae
TABLE OF CONTENTS
Page(s)
Table of Authorities ....................................................................................................... ii
Interest of Amici Curiae ................................................................................................ 1
Introduction and Summary of Argument ..................................................................... 1
Argument ....................................................................................................................... 3
I.
II.
The text of the HEROES Act of 2003 authorizes the Secretary’s action............. 3
A.
The Act authorizes the Secretary of Education to waive or modify
the provisions of Title IV waived here. ......................................................... 4
B.
The COVID-19 pandemic created a “national emergency” that
authorizes the Secretary to waive or modify the provisions at
issue here. ...................................................................................................... 5
C.
Lower-income student borrowers are “affected individuals.” ...................... 6
D.
The Secretary reasonably concluded that debt relief is “necessary
to ensure that” borrowers are not “placed in a worse position
financially” due to the national emergency. ................................................. 8
The major questions doctrine does not bar the Secretary’s action. ................... 10
A.
B.
The Secretary’s action does not trigger the doctrine. ................................ 10
1.
The Secretary’s action is not unheralded. .......................................... 12
2.
The Secretary’s action does not transform the Department’s
regulatory authority. ........................................................................... 15
3.
The economic and political significance of the Secretary’s
action do not trigger the doctrine........................................................ 17
The Secretary’s action is justified by clear congressional
authorization. .............................................................................................. 20
Conclusion .................................................................................................................... 21
i
TABLE OF AUTHORITIES
Page(s)
Cases
Ala. Ass’n of Realtors v. HHS,
141 S. Ct. 2485 (2021) .................................................................... 11, 15, 16, 18, 19
Biden v. Missouri,
142 S. Ct. 647 (2022) .......................................................................................... 6, 13
Davis v. Mich. Dep’t of Treasury,
489 U.S. 803 (1989) ................................................................................................ 10
FCC v. Prometheus Radio Project,
141 S. Ct. 1150 (2021) .............................................................................................. 9
FDA v. Brown & Williamson Tobacco Corp.,
529 U.S. 120 (2000) .................................................................................... 10, 11, 20
Gonzales v. Oregon,
546 U.S. 243 (2006) .......................................................................................... 11, 19
Hardt v. Reliance Standard Life Ins. Co.,
560 U.S. 242 (2010) .............................................................................................. 3, 4
Horne v. Flores,
557 U.S. 433 (2009) .................................................................................................. 7
Indus. Union Dep’t, AFL-CIO v. Am. Petroleum Inst.,
448 U.S. 607 (1980) ............................................................................................ 3, 18
Johnson v. Transp. Agency,
480 U.S. 616 (1987) ................................................................................................ 20
King v. Burwell,
576 U.S. 473 (2015) .......................................................................................... 11, 18
Kisor v. Wilkie,
139 S. Ct. 2400 (2019) ............................................................................................ 16
MCI Telecomms. Corp. v. Am. Tel. & Tel. Co.,
512 U.S. 218 (1994) ...................................................................................... 4, 15, 16
NFIB v. OSHA,
142 S. Ct. 661 (2022) .................................................................... 4, 6, 11, 13, 16, 21
ii
TABLE OF AUTHORITIES—continued
Page(s)
Texas v. EPA,
983 F.3d 826 (5th Cir. 2020) .................................................................................. 10
Trump v. Hawaii,
138 S. Ct. 2392 (2018) ............................................................................................ 10
Utility Air Regul. Grp. v. EPA,
573 U.S. 302 (2014) .......................................................................... 3, 11, 15, 16, 19
Webster v. Doe,
486 U.S. 592 (1988) ................................................................................................ 10
West Virginia v. EPA,
142 S. Ct. 2587 (2022) ......................................... 3, 10, 11, 12, 15, 16, 18, 19, 20, 21
Whitman v. Am. Trucking Ass’ns,
531 U.S. 457 (2001) ................................................................................................ 16
Wis. Cent. Ltd. v. United States,
138 S. Ct. 2067 (2018) .............................................................................................. 8
Statutes
20 U.S.C. § 1080 ........................................................................................................... 21
20 U.S.C. § 1087a ..................................................................................................... 4, 21
20 U.S.C. § 1087e ..................................................................................................... 4, 21
20 U.S.C. § 1087dd................................................................................................... 4, 21
20 U.S.C. § 1087hh ...................................................................................................... 15
20 U.S.C. § 1098bb ................................................................................. 2, 4, 5, 8, 10, 21
20 U.S.C. § 1098ee ................................................................................................... 7, 21
40 U.S.C. § 3147 ............................................................................................................. 5
43 U.S.C. § 1341 ............................................................................................................. 5
46 U.S.C. § 8301 ......................................................................................................... 5, 6
iii
TABLE OF AUTHORITIES—continued
Page(s)
Act of Aug. 18, 2003, Pub. L. No. 108-76,
117 Stat. 904 (Aug. 18, 2003) ................................................................................. 16
American Rescue Plan Act of 2021, Pub. L. No. 117-2,
135 Stat. 4 (Mar. 11, 2021)..................................................................................... 20
Regulations
34 C.F.R. Part 674 ......................................................................................................... 4
34 C.F.R. § 682.102 ..................................................................................................... 21
34 C.F.R. § 682.402 ................................................................................................. 4, 21
34 C.F.R. § 685.207 ..................................................................................................... 21
34 C.F.R. § 685.212 ........................................................................................................ 4
34 C.F.R. §§ 685.212-218 ............................................................................................. 21
68 Fed. Reg. 69,312 (Dec. 12, 2003) ............................................................................ 14
85 Fed. Reg. 15,337 (Mar. 13, 2020).............................................................................. 5
85 Fed. Reg. 61,505 (Sept. 29, 2020) ........................................................................... 18
85 Fed. Reg. 72,158 (Nov. 12, 2020) ............................................................................ 18
85 Fed. Reg. 79,856 (Dec. 11, 2020) ............................................................................ 13
87 Fed. Reg. 10,289 (Feb. 18, 2022) .............................................................................. 5
87 Fed. Reg. 61,512 (Oct. 12, 2022) ......................................................................... 4, 13
Other Authorities
Assistance for Housing and Other Needs, FEMA,
https://bit.ly/3tTPoqE (last updated Oct. 13, 2022) ................................................ 6
COVID-19 Disaster Declarations, FEMA,
https://bit.ly/3gh1uXZ (last updated Aug. 20, 2021) ............................................... 7
H.R. 2034, 117th Cong. (2021) .................................................................................... 20
iv
TABLE OF AUTHORITIES—continued
Page(s)
H.R. 6800, 116th Cong. (2020) .................................................................................... 20
Letter from Phillip L. Swagel, Director, Cong. Budget Office, to
Members of Congress (Sept. 26, 2022), https://bit.ly/3U71fwE ............................ 17
Edouard Mathieu et al., Coronavirus (COVID-19) Cases, Our World
in Data, https://bit.ly/3AuMyMQ (last updated Nov. 22, 2022) ............................ 5
Pausing Federal Student Loan Payments, White House Statements &
Releases (Jan. 20, 2021), https://bit.ly/3UmyWKZ; .............................................. 13
President Donald J. Trump Approves Missouri Disaster Declaration,
White House Statements & Releases (Mar. 26, 2020),
https://bit.ly/3EHvbL9 .............................................................................................. 7
Press Release, U.S. Dep’t of Educ., Department of Education
Announces Actions to Fix Longstanding Failures in the Student
Loan Programs (Apr. 19, 2022), https://bit.ly/3DDF9wr ...................................... 17
Press Release, U.S. Dep’t of Educ., Department of Education
Announces Expansion of COVID-19 Emergency Flexibilities to
Additional Federal Student Loans in Default (Mar. 30, 2021),
https://bit.ly/3UjVb48 ............................................................................................. 13
Press Release, U.S. Dep’t of Educ., Education Department Approves
$1.5 Billion in Debt Relief for 79,000 Borrowers Who Attended
Westwood College (Aug. 30, 2022), https://bit.ly/3DB7svE .................................. 18
Press Release, U.S. Dep’t of Educ., Education Department Approves
$3.9 Billion Group Discharge for 208,000 Borrowers Who Attended
ITT Technical Institute (Aug. 16, 2022), https://bit.ly/3NasrbQ .......................... 18
Press Release, U.S. Dep’t of Educ., Education Department Approves
$5.8 Billion Group Discharge to Cancel All Remaining Loans for
560,000 Borrowers Who Attended Corinthian (June 1, 2022),
https://bit.ly/3DhLvjA ............................................................................................. 18
S. 2235, 116th Cong. (2019)......................................................................................... 20
U.S. Dep’t of Educ., Office of Fed. Student Aid, Borrower Defense
Findings, https://bit.ly/3DhundS (last visited Nov. 22, 2022) .............................. 18
v
INTEREST OF AMICI CURIAE 1
Amici curiae Dean Erwin Chemerinsky and Professors William Araiza,
Matthew Bruckner, Pamela Foohey, Jonathan Glater, Luke Herrine, Dalié Jiménez,
Jeffrey Lubbers, Chrystin Ondersma, Peter Shane, and Peter Strauss are professors
of law at universities throughout the United States, with expertise in student
financial assistance programs under Title IV of the Higher Education Act of 1965 and
administrative and constitutional law. Amici file this brief in support of Applicants
because this case presents important questions within amici’s professional expertise,
namely, the scope of the Department of Education’s authority to provide relief to
borrowers and the development of this Court’s statutory interpretation methodology,
particularly in the context of its precedent concerning the major questions doctrine.
INTRODUCTION AND SUMMARY OF ARGUMENT
This Court should grant the application to vacate the injunction entered by the
Eighth Circuit. The government’s brief identifies the many reasons for that
conclusion. This brief focuses on one of those reasons: the government is likely to
prevail on the merits. 2 That is because Congress, through the plain language of the
relevant statute, delegated precisely the authority exercised here, and the major
questions doctrine does not alter that conclusion.
1 Pursuant to Rule 37.6, no party’s counsel authored this brief in whole or in part, no party or party’s
counsel contributed money intended to fund this brief, and no person other than amici, their members,
and their counsel contributed money to fund this brief.
2 Amici also note separately that President Biden does not appear to be a proper party to this action.
The debt relief challenged in this case is solely an exercise of the Department of Education’s authority
under the HEROES Act of 2003, not any action taken by the President.
1
The relevant statutory text is clear as sunlight. The HEROES Act of 2003
authorizes the Secretary of Education to “waive or modify any statutory or regulatory
provision applicable to the student financial assistance programs under [T]itle IV of
the [Higher Education] Act [of 1965] as the Secretary deems necessary in connection
with a . . . national emergency.” 20 U.S.C. § 1098bb(a)(1). That is exactly what the
Secretary did here: waive or modify certain provisions of Title IV so that borrowers
are not put in a worse financial position because of a national emergency.
The Secretary’s action coincides with the Department of Education’s plan to
resume collections on federally held student loans, following a nearly three-year
suspension of such payments in response to a global health crisis. Even as
repayments resume, millions of borrowers continue to face personal financial
difficulties emanating from the COVID-19 pandemic and its substantial ongoing
effects. The Secretary reasonably concluded that borrowers with incomes below
$125,000 ($250,000 for joint filers) will face a significant risk of default and other
harmful financial repercussions, and hence announced that the Department would
pair the resumption of repayments with a one-time, partial relief of repayment
obligations on federally held student debt for lower-income borrowers. This action
was an appropriate and lawful exercise of the Department’s authority under the
HEROES Act.
In the face of the clear statutory text, the Eighth Circuit’s declining to explain
its conclusion that this case raises “substantial” merits questions is insufficient to
support an injunction. For their part, in their briefing below, Respondents relied on
invented limits on the explicit waiver and modification authority that have no
2
support in the statutory text and are inconsistent with past agency practice across
Administrations.
Respondents’ invocation of the major questions doctrine is likewise unavailing.
The Secretary has not “‘claim[ed] to discover in a long-extant statute an unheralded
power’ representing a ‘transformative expansion in [its] regulatory authority,’” West
Virginia v. EPA, 142 S. Ct. 2587, 2610 (2022) (quoting Utility Air Regul. Grp. v. EPA,
573 U.S. 302, 324 (2014)), exerted an “unprecedented power over American industry,”
id. at 2612 (quoting Indus. Union Dep’t, AFL-CIO v. Am. Petroleum Inst., 448 U.S.
607, 645 (1980)), or regulated a sector of the economy that Congress did not intend it
to regulate, id. at 2612-13. It took the exact type of action Congress empowered it to
take (waiver or modification of provisions of Title IV of the Higher Education Act) in
the precise context Congress authorized it to act (national emergencies) for the
specific purpose Congress intended (relief of borrowers affected by an emergency).
This is not the exceptional case calling for application of a special mode of statutory
analysis. And regardless, the statute provides “clear congressional authorization” for
the power that the Department has exercised, id. at 2609 (quoting Utility Air, 573
U.S. at 324).
ARGUMENT
I.
The text of the HEROES Act of 2003 authorizes the Secretary’s
action.
As this Court has repeatedly explained, statutory interpretation begins with
the text of a statute, with “plain and unambiguous statutory language” enforced
“according to its terms,” Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242, 251
3
(2010). The HEROES Act of 2003 “plainly authorizes” the Department to issue the
limited debt relief here. NFIB v. OSHA, 142 S. Ct. 661, 665 (2022) (per curiam).
A.
The Act authorizes the Secretary of Education to waive or
modify the provisions of Title IV waived here.
“[T]he Secretary of Education . . . may waive or modify any statutory or
regulatory provision applicable to the student financial assistance programs under
Title IV of the [Higher Education] Act [of 1965] as the Secretary deems necessary in
connection with a . . . national emergency.” 20 U.S.C. § 1098bb(a)(1). This is a grant
of substantial power. Compare 20 U.S.C. § 1098bb(a)(1) (authorizing Secretary to
“waive or modify” provisions of the HEA (emphasis added)), with MCI Telecomms.
Corp. v. Am. Tel. & Tel. Co., 512 U.S. 218, 227-29 (1994) (rejecting FCC’s assertion of
authority to “modify” a requirement that common carriers file tariffs by eliminating
it altogether, because the authority to “modify” connotes only “moderate change”).
The Secretary’s action faithfully implements this authority to waive or modify
provisions of Title IV. As the administrative record shows, all the provisions waived
or modified in this case fall within Title IV, and thus within the clear grant of
authority in the HEROES Act. See 87 Fed. Reg. 61,512 (Oct. 12, 2022) (waiving or
modifying various provisions governing loan terms, payment conditions, cancellation,
and discharge of Title IV loans at 20 U.S.C. §§ 1087a, 1087e, 1087dd; 34 C.F.R.
Part 674, Subpart D; 34 C.F.R. §§ 682.402, 685.212). There is no serious question (and
Respondents below did not contest) that, if the other prerequisites for exercising the
Secretary’s authority are met, the Secretary’s waivers and modifications of these
provisions were permissible.
4
B.
The COVID-19 pandemic created a “national emergency” that
authorizes the Secretary to waive or modify the provisions at
issue here.
The HEROES Act authorizes waivers of Title IV provisions in connection with
a “national emergency.” 20 U.S.C. § 1098bb(a)(1). The COVID-19 pandemic, including
its past, present, and future effects, constitutes such an emergency. In March 2020,
President Trump declared that the COVID-19 outbreak was a national emergency
that threatened to strain the nation’s healthcare systems. 85 Fed. Reg. 15,337 (Mar.
13, 2020). In February 2022, President Biden continued the national emergency,
87 Fed. Reg. 10,289 (Feb. 18, 2022); by then, the United States had documented more
than 78 million cases of COVID-19 and more than 934,000 deaths from the disease,
and those numbers are still rising. 3
Respondents have nevertheless argued that “national emergenc[ies] are by
nature temporary, and the same must be true of the relief afforded.” Resp. C.A. Mot.
For Inj. Pending Appeal (Resp. Mot.) 20 (emphasis omitted). The statute contains no
such limitation. The Act explicitly authorizes the Secretary to “waive or modify”
student-loan provisions. 20 U.S.C. § 1098bb(a)(1). Congress did not use more limited
language, such as the power to “suspend,” as it has in some other emergency statutes.
See, e.g., 43 U.S.C. § 1341(c) (Secretary of the Interior may “suspend operations under
any lease” for development of outer Continental Shelf “during a . . . national
emergency”); 40 U.S.C. § 3147 (President may “suspend”
statutory wage
requirements for federal contractors “during a national emergency”); 46 U.S.C.
3 Edouard Mathieu et al., Coronavirus (COVID-19) Cases, Our World in Data, https://bit.ly/3AuMyMQ
(last updated Nov. 22, 2022).
5
§ 8301(d)(1) (Secretary of Homeland Security may “suspend any part” of regulations
concerning crew makeup on Coast Guard vessels “during a national emergency”).
Moreover, the Secretary has previously used HEROES Act authority to grant
permanent financial relief to borrowers. See infra Section II.A.1; Applicants’ Br. 2223. Respondents have not cited any authority for the proposition that emergencies
cannot be met with relief that has permanent effects, nor could they. Indeed, this
Court recently held that the COVID-19 emergency justified the imposition of
vaccination requirements on workers in healthcare facilities, Biden v. Missouri, 142
S. Ct. 647 (2022), a permanent measure that “cannot be undone at the end of the
workday,” NFIB, 142 S. Ct. at 665 (citation omitted).
Respondents’ apparent intuition that temporary emergencies only justify
temporary relief would be a curious and unheard-of constraint on government action;
after all, the federal government does not ask disaster victims to return other forms
of financial assistance provided to assist with post-disaster recovery, such as funds
for housing and home repair, energy subsidies, or funeral expenses. 4
C.
Lower-income student borrowers are “affected individuals.”
Respondents have also argued that the debt cancellation exceeds the
Secretary’s authority because the program’s beneficiaries do not live in a “disaster
area” and some beneficiaries may not have suffered “direct economic hardship as a
direct result” of the COVID-19 emergency. Resp. Mot. 21. Again, the text of the
statute forecloses their argument.
4 See Assistance for Housing and Other Needs, FEMA, https://bit.ly/3tTPoqE (last updated Oct. 13,
2022).
6
The HEROES Act treats as “affected individuals” anyone who “resides or is
employed in an area that is declared a disaster area by any Federal, State, or local
official in connection with a national emergency.” 20 U.S.C. § 1098ee(2). All 50 States,
all U.S. territories, and the District of Columbia have been individually designated
as disaster areas in connection with the COVID-19 pandemic, at the request of each
state’s governor. See, e.g., President Donald J. Trump Approves Missouri Disaster
Declaration,
White
https://bit.ly/3EHvbL9;
House
see
Statements
also
&
COVID-19
Releases
Disaster
(Mar.
26,
2020),
Declarations,
FEMA,
https://bit.ly/3gh1uXZ (last updated Aug. 20, 2021). Therefore, under the plain
language of the statute, any student borrower who lives or works in one of the States,
including the Respondent States, “resides or is employed in . . . a disaster area” and
qualifies as an “affected individual” under the Act. 20 U.S.C. § 1098ee(2)(C). Nothing
more is necessary under the statute.
Respondents have emphasized a different definition of “affected individual”:
those who have “suffered direct economic hardship as a direct result of a war or other
military operation or national emergency, as determined by the Secretary,” id.
§ 1098ee(2)(D); see, e.g., Resp. Mot. 21. But subsections (2)(D) and (2)(C) are
alternative definitions of “affected individual.” Cf., e.g., Horne v. Flores, 557 U.S. 433,
454 (2009) (“Use of the disjunctive ‘or’ makes it clear that each of the provision’s three
grounds for relief is independently sufficient.”). Respondents’ insistence that any
relief be limited to those who suffered direct hardship as a result of the COVID-19
national emergency would transform Congress’s “or” into an “and.” Congress could
have limited the Secretary’s waiver authority in disaster areas only to those directly
7
affected, but it chose not to, and this choice “requires respect, not disregard.” Wis.
Cent. Ltd. v. United States, 138 S. Ct. 2067, 2072 (2018).
Additionally, the HEROES Act explicitly relieves the Secretary of any
requirement that he “exercise the waiver or modification authority . . . on a case-bycase basis.” 20 U.S.C. § 1098bb(b)(3). Rather than requiring individual-by-individual
judgments about hardship for millions of borrowers, Congress permitted the
Secretary to make reasonable determinations about classes of borrowers when
tailoring relief. To interpret the statute otherwise ignores both the statute’s plain text
and Congress’s obvious intent to empower the Secretary to act with the scale and
speed necessary to address national emergencies. See also id. § 1098bb(a)(2)(B)
(authorizing Secretary to ensure that “administrative requirements placed on
affected individuals . . . are minimized, . . . to ease the burden” on student borrowers).
D.
The Secretary reasonably concluded that debt relief is
“necessary to ensure that” borrowers are not “placed in a
worse position financially” due to the national emergency.
As the Secretary explained, the diverse effects of a national emergency on
individuals’ financial positions relative to their loans can include increased likelihood
of default, inability to afford repayment without depleting funds for necessities and
savings, and a reduction in borrowers’ future abilities to obtain credit or employment.
See App. 37a-39a. The HEROES Act authorizes the Secretary to consider these
harmful effects and waive repayment provisions as he “deems necessary” to ensure
that a national emergency does not place borrowers “in a worse position financially”
than they would have been in otherwise. 20 U.S.C. § 1098bb(a)(1), (a)(2)(A).
8
Respondents have argued that, because relief in this instance takes the form
of a reduction in principal owed by qualifying borrowers, the Secretary’s action puts
these borrowers in a better position than they were in prior to the pandemic, rather
than ensuring that they are not placed in a worse position because of the pandemic.
See Resp. Mot. 19. The administrative record, however, supports the Department’s
conclusion that the pandemic emergency caused substantial deterioration in lowerincome borrowers’ financial positions, with these borrowers substantially more likely
to have trouble making payments in 2022 than in 2019. App. 37a-39a. The
Department found that borrowers whose loan obligations would be eliminated by the
Secretary’s action were disproportionately likely to be low income and at high risk of
default; and for remaining borrowers, the effect of loan forgiveness on their monthly
payments was roughly equivalent to the payment pause that has persisted
throughout the pandemic. App. 40a-41a.
The Secretary reasonably concluded that his action was necessary and
appropriate to offset the harms of the pandemic emergency. Respondents may
disagree with this conclusion, but their disagreement does not render the Secretary’s
contrary decision arbitrary, see, e.g., FCC v. Prometheus Radio Project, 141 S. Ct.
1150, 1158 (2021) (actions are not arbitrary and capricious where “agency has acted
within a zone of reasonableness”), much less contrary to the statute, as Respondents
have argued.
Respondents’ argument is likewise belied by Congress’s decision to vest the
Secretary with the authority to “deem [relief] necessary” to avoid borrowers being in
a worse position relative to their loans than they would have been absent the
9
pandemic. 20 U.S.C. § 1098bb(a)(1), (a)(2)(A). The statute thus anticipated a
discretionary determination. See, e.g., Trump v. Hawaii, 138 S. Ct. 2392, 2408 (2018)
(statute authorizing President to “suspend the entry of all aliens or any class of aliens
. . . for such period as he shall deem necessary” or subject to “any restrictions he may
deem to be appropriate” constituted a “comprehensive delegation” that authorized the
suspension of entry of nationals from several countries); Webster v. Doe, 486 U.S. 592,
600 (1988) (statute allowing termination of CIA employees when the Director “‘shall
deem [] necessary’ . . . exudes deference to the Director”); see also, e.g., Texas v. EPA,
983 F.3d 826, 836-37 (5th Cir. 2020) (statutory text giving EPA Administrator
“discretion to make changes whenever it ‘deems necessary’” gave “the agency
discretion to determine when changes are necessary, not merely authority to make
changes when it has no other option”).
II.
The major questions doctrine does not bar the Secretary’s action.
A.
The Secretary’s action does not trigger the doctrine.
In West Virginia, this Court explained that “the words of a statute must be
read in their context and with a view to their place in the overall statutory scheme.”
142 S. Ct. at 2607 (quoting Davis v. Mich. Dep’t of Treasury, 489 U.S. 803, 809 (1989)).
Where a statute’s purpose is to confer power upon an executive agency, “that inquiry
must be ‘shaped . . . by the nature of the question presented’—whether Congress in
fact meant to confer the power the agency has asserted.” Id. at 2608 (quoting FDA v.
Brown & Williamson Tobacco Corp., 529 U.S. 120, 159 (2000)). In “ordinary” cases—
that is, the vast majority of cases—that context has “no great effect on the appropriate
analysis.” Id. But in rare “‘extraordinary cases’ . . . the ‘history and the breadth of the
10
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. (quoting Brown & Williamson, 529 U.S. at 159-60).
Those extreme cases in which an agency “claim[ed] to discover in a long-extant
statute an unheralded power” representing a “transformative expansion in [its]
regulatory authority” are subject to the major questions doctrine. Id. at 2610 (quoting
Utility Air, 573 U.S. at 324).
The cases that the Court has treated as “extraordinary” show what types of
agency actions are unheralded and transformative in the relevant sense. Brown &
Williamson involved the FDA’s assertion of “the power to regulate, and even ban,
tobacco products,” which had never before fallen within the FDA’s jurisdiction. Id. at
2608. Alabama Association of Realtors v. HHS, 141 S. Ct. 2485 (2021) (per curiam),
involved the CDC’s assertion of authority to regulate landlords’ eviction practices
nationwide. Utility Air concerned the EPA’s regulation of “millions of small sources,
such as hotel and office buildings, that had never before been subject to such [EPA]
requirements.” West Virginia, 142 S. Ct. at 2608. Gonzales v. Oregon dealt with the
Attorney General’s attempt to rescind state-issued medical licenses. 546 U.S. 243
(2006). NFIB v. OSHA considered the occupational-health agency’s ability to require
vaccinations and weekly testing outside of the workplace. 142 S. Ct. at 665. King v.
Burwell involved the IRS’s interpretation of the Affordable Care Act, where Congress
was unlikely to delegate construction of the statute to an agency with “no expertise
in crafting health insurance policy.” 576 U.S. 473, 486 (2015). And in West Virginia
itself, the EPA attempted to convert an authority that had always been understood
11
to “ensur[e] the efficient pollution performance of [an] individual regulated source”
into one that allowed it to “forc[e]” one segment of the power industry to “cease
making power altogether.” 142 S. Ct. at 2612. In each case, an agency regulated far
beyond where or what Congress expected it to regulate.
Ignoring this context, Respondents have contended that the Secretary’s action
triggers the major questions doctrine merely because it involves a large amount of
money and because recent proposals for sweeping debt-relief legislation were not
enacted. But the major-questions analysis requires more. Consideration of the
Department’s prior assertions of HEROES Act authority, its traditional mission and
expertise, and the structure of the Act all compel the opposite conclusion: The
challenged waivers and modifications do not amount to an unheralded,
transformative power. And even if this Court were to adopt Respondents’ preferred
mode of analysis, which finds no purchase in the case law and which the Court should
reject, the Secretary’s action still would not trigger the doctrine, and would satisfy it
if triggered.
1. The Secretary’s action is not unheralded.
Respondents portray the Secretary’s action here as unprecedented in two ways:
the scope of affected individuals is broad, and the waiver of a payment obligation
provides permanent relief. But neither is in any way new. The history and breadth of
the Department’s prior uses of its HEROES Act authority show that the challenged
waivers
and
modifications
align
with
its
longstanding,
uncontroversial
understanding of that authority. Far from novel, unheralded assertions of authority,
the Secretary’s action here is consistent with the scope and effect of prior waivers and
12
modifications. Compare, e.g., NFIB, 142 S. Ct. at 666 (striking down OSHA vaccine
mandate where “OSHA, in its half century of existence, ha[d] never before adopted a
broad public health regulation” of that kind), with Biden v. Missouri, 142 S. Ct. at
653 (upholding HHS vaccine mandate where “the Secretary routinely imposes
conditions of participation” on healthcare workers and “has always justified” such
requirements by reference to the statutory provisions in question).
First, this is not the first time that the Department has drawn on its HEROES
Act authority to relieve a broad, nationwide class of borrowers from repayment and
other obligations in response to the COVID-19 pandemic, nor the first Administration
to do so. Beginning in March 2020, Secretary DeVos temporarily eliminated the
accrual of interest and suspended payment on all federally held student loans, and
she paused collection actions and wage garnishment to recoup delinquent loans. See
85 Fed. Reg. 79,856 (Dec. 11, 2020). That relief was made available to all federal
borrowers across the United States, all of whom the Secretary determined—as a
categorical matter—were affected by the COVID-19 pandemic. See id. at 79,857. The
incoming Biden Administration extended these waivers. See Pausing Federal Student
Loan
Payments,
White
House
Statements
&
Releases
(Jan.
20,
2021),
https://bit.ly/3UmyWKZ; see also Press Release, U.S. Dep’t of Educ., Department of
Education Announces Expansion of COVID-19 Emergency Flexibilities to Additional
Federal Student Loans in Default (Mar. 30, 2021), https://bit.ly/3UjVb48. The waivers
remain in effect today and are currently set to expire at the end of the year. See 87
Fed. Reg. at 61,512.
13
The class of beneficiaries covered by the action challenged here is no larger
than that covered by previous, uncontroversial actions—indeed, less expansive, given
that the Secretary’s action imposes an income threshold that was absent from the
ongoing nationwide payment pause. Further, there is nothing novel about providing
relief to all borrowers who reside in a disaster area; indeed, that has been the case
since the passage of the HEROES Act. See, e.g., 68 Fed. Reg. 69,312 (Dec. 12, 2003)
(providing waivers and modifications to all federal borrowers residing or employed in
a disaster area).
Second, the substance of the challenged action is not markedly different from
previous exercises of authority under the Act. The Department has in the past
permanently waived payments and otherwise made it easier for borrowers to
discharge debts. For example, soon after the passage of the Act, the Department
waived the requirement that borrowers return unearned grant funds, which they are
ordinarily obligated to do under the Higher Education Act, when they withdraw from
an institution because they reside in a disaster area or have suffered economic
hardship because of a national emergency. See id. at 69,314. Likewise, under the
Department’s ongoing pause on loan payments and elimination of interest accrual,
borrowers who have continued to pay their principal during the moratorium will have
lower monthly interest payments when the pause is lifted. These waivers and
modifications amount to permanent reductions in borrowers’ repayment obligations
of the type that Respondents argue falls outside the bounds of permissible emergency
relief. See Resp. Mot. 20.
14
Thus, unlike the CDC’s novel use of a decades-old statute to regulate evictions
(Ala. Ass’n of Realtors, 141 S. Ct. at 2489) or EPA’s sector-threatening restrictions on
coal power production (West Virginia, 142 S. Ct. at 2610-11), the Department’s
determination is comparable in key respects to its prior, uncontroversial exercise of
its authority under the HEROES Act.
2. The Secretary’s action does not transform the Department’s
regulatory authority.
Similarly, the challenged action does not work a “‘radical or fundamental
change’ to a statutory scheme,” West Virginia, 142 S. Ct. at 2609-10 (quoting MCI,
512 U.S. at 229), nor one that would effect a “transformative expansion in [its]
regulatory authority,” id. (quoting Utility Air, 573 U.S. at 324).
The Department is not asserting jurisdiction over matters not previously
within its purview or trying to regulate topics Congress never assigned to it; it is
acting in the center of its statutory authority. The Secretary’s HEROES Act waiver
and modification authority falls squarely within the responsibilities Congress has
vested in the Secretary. For example, in tasking the Department of Education with
carrying out the purposes of the federal student loan programs, Congress already
authorized the Secretary to modify “any . . . provision of any note evidencing a loan”
made under Title IV and to “compromise, waive, or release any right, title, claim, lien,
or demand,” among other powers. 20 U.S.C. § 1087hh(1)-(2). Given that Congress
expressly authorized the Secretary to modify, compromise, or release federal studentloan debt, the Department’s use of its HEROES Act authority to do exactly that
hardly represents a “transformative expansion” or “radical or fundamental change”
15
in its power. West Virginia, 142 S. Ct. at 2609-10 (quoting MCI, 512 U.S. at 229, and
Utility Air, 573 U.S. at 324).
For that reason, this is not a case in which the agency “‘has no comparative
expertise’ in making certain policy judgments,” such that “‘Congress presumably
would not’ task it with doing so.” Id. at 2613 (quoting Kisor v. Wilkie, 139 S. Ct. 2400,
2417 (2019)). There is no “mismatch between [the] agency’s challenged action and its
congressionally assigned mission and expertise,” id. at 2623 (Gorsuch, J., concurring),
unlike the CDC intervening in landlord-tenant relations (Ala. Ass’n of Realtors, 141
S. Ct. at 2489) or OSHA requiring actions outside the workplace (NFIB, 142 S. Ct. at
665). The Department’s regulation of federal student loans is squarely within its
expertise. See supra Sec. II.A.1.
Nor is the Department attempting to exploit an “ancillary provision” of a
statute, one “designed to function as a gap filler.” West Virginia, 142 S. Ct. at 2610;
see also Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468 (2001) (Congress “does
not . . . hide elephants in mouseholes.”). The HEROES Act’s waiver and modification
authority is not some “previously little-used backwater” of a broader statute, see id.
at 2613; it is the heart of a statute designed to give the Secretary “specific waiver
authority to respond to . . . [a] national emergency.” Act of Aug. 18, 2003, Pub. L. No.
108-76, 117 Stat. 904 (Aug. 18, 2003). In fact, § 1098bb is the only provision in the
tightly drawn HEROES Act that gives effect to the law’s central purpose; the Act does
not contain back channels through which undelegated stores of agency authority
might be sneaking. See generally 20 U.S.C. §§ 1098aa-1098ee.
16
3. The economic and political significance of the Secretary’s
action do not trigger the doctrine.
As explained above, the hallmark of a major-questions case is an agency’s
exercise of unheralded, transformative power, see supra Sec. II.A.1-2, and this Court
should reject Respondents’ treatment of “economic and political significance” as an
isolated, amorphous test. But even if the Court were to accept Respondents’
conception of economic and political significance, which it should not, the major
questions doctrine still would not govern the Department’s action.
a. This Court should resist Respondents’ desire to view economic significance
in a vacuum. The Department’s action may concern a large amount of money—
approximately $13.3 billion per year, by one early analysis 5—but this figure must be
viewed in the context of the federal student-loan program as a whole, comprising
43 million borrowers with loans totaling approximately $1.6 trillion. 6
Given the overall size of the student-loan program, Department actions
managing this portfolio regularly involve large sums. For example, the Department
cancelled an estimated $6.8 billion in federal student debt under the Public Service
Loan Forgiveness program and an additional $7.8 billion for borrowers with
disabilities from January 2021 to April 2022—a total of $14.6 billion in debt
cancellation. 7 Likewise, the Department regularly discharges billions of dollars of
federal student loans held by hundreds of thousands of borrowers who have attended
educational institutions that the Department later determined misrepresented their
5 See Letter from Phillip L. Swagel, Director, Cong. Budget Office, to Members of Congress (Sept. 26,
2022), https://bit.ly/3U71fwE.
6 Id. at 3.
7 See Press Release, U.S. Dep’t of Educ., Department of Education Announces Actions to Fix
Longstanding Failures in the Student Loan Programs (Apr. 19, 2022), https://bit.ly/3DDF9wr.
17
credentials and accreditation or otherwise misled students about the value of the
education provided. 8 For example, over the course of three months this year, the
Department discharged more than $11 billion in federal loans held by borrowers who
attended just three institutions. 9 When managing a $1.6 trillion loan portfolio,
virtually every action that the Department takes to relieve borrowers might trigger
the major questions doctrine if courts looked only to the bottom-line amount. 10 That
would work a massive expansion in the major questions doctrine—a rule reserved for
“extraordinary” circumstances, West Virginia, 142 S. Ct. at 2608.
Moreover, the “cost” in question is not the type of cost considered in previous
cases, which involved “‘billions of dollars in spending’ by private persons or entities,”
West Virginia, 142 S. Ct. at 2621 (Gorsuch, J., concurring) (quoting King, 576 U.S. at
485)), resulting from an exercise of “unprecedented power over American industry,”
id. at 2612 (quoting Indus. Union Dep’t, 448 U.S. at 645); see also, e.g., Ala. Ass’n of
Realtors, 141 S. Ct. at 2489 (considering the “financial burden on landlords” resulting
from CDC’s eviction moratorium). Respondents here point instead to the cost imputed
See U.S. Dep’t of Educ., Office of Fed. Student Aid, Borrower Defense Findings,
https://bit.ly/3DhundS (last visited Nov. 22, 2022) (cataloguing Department’s discharges of debt
against institutions).
9 See Press Release, U.S. Dep’t of Educ., Education Department Approves $1.5 Billion in Debt Relief
for 79,000 Borrowers Who Attended Westwood College (Aug. 30, 2022), https://bit.ly/3DB7svE; Press
Release, U.S. Dep’t of Educ., Education Department Approves $3.9 Billion Group Discharge for
208,000 Borrowers Who Attended ITT Technical Institute (Aug. 16, 2022), https://bit.ly/3NasrbQ;
Press Release, U.S. Dep’t of Educ., Education Department Approves $5.8 Billion Group Discharge to
Cancel All Remaining Loans for 560,000 Borrowers Who Attended Corinthian (June 1, 2022),
https://bit.ly/3DhLvjA.
10 And it’s not just the Department of Education’s regular activity that would be disrupted by so
freewheeling a standard. Many agencies have promulgated multi-billion-dollar regulations without
raising major-questions hackles. See, e.g., 85 Fed. Reg. 61,505 (Sept. 29, 2020) (Department of Defense
rule regarding unclassified information with estimated costs of $6.5 billion annually); 85 Fed. Reg.
72,158 (Nov. 12, 2020) (multi-agency regulation regarding health-insurance disclosures with
estimated annual costs up to $10 billion).
8
18
to the federal government by a reduction in projected income generated by a federal
program. The absence of any costs to private parties is, on its own, sufficient to end
the major-questions inquiry. 11
Indeed, in describing the injury that supposedly gives rise to this case,
Respondents don’t allege that the action will trigger billions of dollars in costs to
private parties, nor could they. They merely contend that the debt-relief measure will
cost Missouri’s state-affiliated loan servicer money in lost account fees and that states
may lose some unspecified amount in tax revenue. See Resp. Mot. 8-13. These tenuous
allegations of marginal economic harm are a far cry from the effects one would expect
were the Department exercising an “extravagant statutory power over the national
economy,” West Virginia, 142 S. Ct. at 2609 (quoting Utility Air, 573 U.S. at 324).
b. Moreover, the mere existence of political disagreement with the Secretary’s
decision does not satisfy a “political significance” requirement. The major questions
doctrine is not so malleable that a determined litigant can stoke a controversy to
change the applicable standard of review.
Aside from their own disagreement, all that Respondents point to as evidence
of political significance is that Congress has failed to enact debt-relief measures over
the last three years. Resp. Mot. 17-18. But two of the three proposals that they have
cited are much broader in scope than the Department’s action here. See, e.g.,
11 Relatedly, because the Department’s action pertains only to federally held student loans, it raises
none of the federalism concerns that sometimes animate the Court’s major-questions analysis. See,
e.g., Ala. Ass’n of Realtors, 141 S. Ct. at 2489 (CDC’s national eviction moratorium “intrudes into an
area that is the particular domain of state law: the landlord-tenant relationship”); Gonzales, 546 U.S.
at 274 (“[T]he background principles of our federal system . . . belie the notion that Congress would
use such an obscure grant of authority to regulate areas traditionally supervised by the States’ police
power.”).
19
H.R. 2034, 117th Cong. (2021) (bill introduced in House that would cancel all student
debt for all borrowers with adjusted gross incomes up to $100,000); S. 2235, 116th
Cong. (2019) (bill introduced in Senate proposing cancellation of up to $50,000 for all
borrowers regardless of income). And the third was one provision of a $3 trillion
stimulus bill. See H.R. 6800, 116th Cong. § 150117(h) (2020).
Far more than this “simple inaction by Congress” is required to provide
meaningful evidence of intent. See Brown & Williamson, 529 U.S. at 155 (drawing on
35-year history of specific congressional action at odds with agency’s assertion of
authority); West Virginia, 142 S. Ct. at 2610 (Congress’s “conspicuously and
repeatedly declin[ing] to enact” a particular regulatory scheme was evidence of
congressional intent); see also Johnson v. Transp. Agency, 480 U.S. 616, 671-72 (1987)
(Scalia, J., dissenting) (“[O]ne must ignore rudimentary principles of political science
to draw any conclusions regarding [congressional] intent from the failure to enact
legislation.”).
And in this case, countervailing evidence points in the opposite direction: the
American Rescue Plan of 2021 anticipated further federal student-debt relief by
making any discharge of federal student loans through 2025 tax-exempt. See
American Rescue Plan Act of 2021, Pub. L. No. 117-2, 135 Stat. 4 (Mar. 11, 2021).
B.
The Secretary’s action is justified by clear congressional
authorization.
The Secretary’s action does not implicate the major questions doctrine, and no
further inquiry is necessary. But even if the challenged action did raise a major
statutory question, it is supported by clear congressional authorization, for “the
20
[underlying provision] plainly authorizes the Secretary’s” action. NFIB, 142 S. Ct. at
665.
For the reasons already explained, see supra Sec. I, the plain text of the
HEROES Act authorizes the Department’s action here. The text of the Act explicitly
authorizes the Department to modify or waive federally held student-debt
requirements in connection with a national emergency to ensure that affected
borrowers are not placed in a worse position financially. See §§ 1098bb(a)(1)-(2),
1098ee(2)(D). The Act permits the Secretary to modify or waive any provision that
applies to the three student-loan programs that the federal government administers
under the Higher Education Act. See 20 U.S.C. §§ 1087a-1087j. This broad grant of
authority naturally encompasses the ability to waive or modify the statutory and
regulatory provisions that obligate borrowers to repay their loans and specify the
consequences of failure to repay. See 20 U.S.C. §§ 1080, 1087e, 1087dd; 34 C.F.R.
§§ 682.102, 682.402, 685.207, 685.212-218. And because the Secretary’s action here
fits squarely within the text and purpose of the statute, the Court need not strain to
determine whether a statutory term designed for one context can be the basis for
regulation in another. See, e.g., West Virginia, 142 S. Ct. at 2614-15 (finding
ambiguity in the term “system,” which, when “shorn of all context . . . is an empty
vessel”).
CONCLUSION
The Court should grant Applicants’ application to vacate the injunction.
21
Respectfully submitted,
JEFFREY B. DUBNER
Counsel of Record
SEAN A. LEV
AMAN T. GEORGE
SARAH R. GOETZ
DEMOCRACY FORWARD FOUNDATION
P.O. Box 34553
Washington, DC 20043
(202) 383-0794
jdubner@democracyforward.org
Counsel for Amici Curiae
NOVEMBER 2022
22
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