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

No. 22A444

In the

Supreme Court of the United States

JOSEPH R. BIDEN, JR., in his official capacity

as the President of the United States of America, 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

HAMILTON LINCOLN LAW INSTITUTE

AS AMICUS CURIAE IN SUPPORT OF RESPONDENTS

HAMILTON LINCOLN LAW INSTITUTE

Theodore H. Frank

1629 K Street, NW, Suite 300

Washington, DC 20006

(703) 203-3848

Counsel for Amicus Curiae

Hamilton Lincoln Law Institute

Motion for Leave to File Brief as Amicus Curiae

Hamilton Lincoln Law Institute (“HLLI”) moves the Court for leave

to file the enclosed brief as amici curiae in support of respondents and in

opposition to the United States’ application to vacate the Eighth Circuit’s

injunction (i) without 10 days’ notice to the parties of amici’s intent to file

as ordinarily required by Sup. Ct. R. 37.2(a), and (ii) in an unbound

format on 8½-by-11-inch paper rather than in booklet form. The

respondents do not oppose the filing of this brief, and the United States

takes no position.

The United States filed its application on November 18, 2022. The

same day, Justice Kavanaugh requested a response to the application by

noon (EST), November 23, 2022. In light of the expedited briefing

schedule, it was not feasible to provide 10 days’ notice to the parties. And

the compressed timeframe prevented HLLI from having the brief

finalized in sufficient time to allow it to be printed and filed in booklet

form.

As set forth in the enclosed brief, HLLI has a strong interest in the

outcome of this application. Amicus curiae HLLI is a public-interest law

firm committed to, among other thingsamong other things, defending the

constitutional separation of powers and principles of limited government

against executive-branch abuse. This case not only presents critical

separation-of-powers issues, but has personal resonance for the many

1

attorneys of HLLI who expect to pay tuition for children attending

college. The government’s illegal changes to federal student loan policy

will create perverse incentives that will substantially raise tuition for

future students.

HLLI therefore seeks leave to file this brief in opposition to the

application to vacate the Eighth Circuit’s preliminary injunction.

CONCLUSION

The Court should grant amicus curiae leave to file the enclosed brief

without 10 days’ notice to the parties of amici’s intent to file as ordinarily

required by Sup. Ct. R. 37.2(a), and (ii) in an unbound format on 8½-by11-inch paper rather than in booklet form.

Dated: November 23, 2022

Respectfully submitted,

/s/ Theodore H. Frank

Theodore H. Frank

HAMILTON LINCOLN LAW INSTITUTE

1629 K Street, NW, Suite 300

Washington, DC 20006

Telephone: (703) 203-3848

Email: ted.frank@hlli.org

Counsel for Amicus Curiae

Hamilton Lincoln Law Institute

2

No. 22A444

In the

Supreme Court of the United States

JOSEPH R. BIDEN, JR., in his official capacity

as the President of the United States of America, 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 HAMILTON LINCOLN LAW INSTITUTE

AS AMICUS CURIAE IN SUPPORT OF RESPONDENTS

HAMILTON LINCOLN LAW INSTITUTE

Theodore H. Frank

1629 K Street, NW, Suite 300

Washington, DC 20006

(703) 203-3848

Counsel for Amicus Curiae

Hamilton Lincoln Law Institute

Table of Contents

Motion for Leave to File Brief as Amicus Curiae ..................................... 1

Table of Contents ......................................................................................ii

Table of Authorities ...................................................................................ii

Interest of Amicus Curiae ......................................................................... 1

Summary of the Argument ....................................................................... 2

Argument ................................................................................................... 2

I.

The text and legislative history of the HEROES Act

demonstrate the absurdity and illegality of the executive

branch’s attempted violation of the major-questions doctrine. ....... 2

Conclusion ............................................................................................... 13

ii

Table of Authorities

Cases

Ala. Ass’n of Realtors v. HHS,

141 S. Ct. 2485 (2021) .................................................................... 10

Brown v. Cardona,

2022 U.S. Dist. LEXIS 205875 (N.D. Tex. Nov. 10, 2022)......... 2, 13

Competitive Enter. Inst. v. FCC,

970 F.3d 372 (D.C. Cir. 2020)........................................................... 1

Davis v. Mich. Dep’t of Treasury,

489 U.S. 803 (1989) .......................................................................... 5

Dobbs v. Jackson Women’s Health Org.,

142 S. Ct. 2228 (2022) ................................................................... 7-8

FDA v. Brown & Williamson Tobacco Corp.,

529 U.S. 120 (2000) ....................................................................... 5-6

Int’l Union v. MSHA,

407 F.3d 1250 (D.C. Cir. 2005) ....................................................... 13

W. Virginia v. EPA,

142 S. Ct. 2587 (2022) ................................................... 5-6, 8, 10, 13

Whitman v. American Trucking Assoc., Inc.,

531 U.S. 457 (2001) .......................................................................... 2

Rules and Statutes

11 U.S.C. §523(a)(8)................................................................................... 9

20 U.S.C. §1078-10 ............................................................................... 9-10

20 U.S.C. §1078-10(c)(3) ....................................................................... 9-10

ii

20 U.S.C. §1078-11 ............................................................................... 9-10

20 U.S.C. §1087e(d)(1)(D).......................................................................... 9

20 U.S.C. §1087e(d)(1)(E) .......................................................................... 9

20 U.S.C. §1087e(e)(1) ............................................................................... 9

20 U.S.C. §1087e(h) ................................................................................... 9

20 U.S.C. §1087ee ...................................................................................... 9

20 U.S.C. §1098(d) ................................................................................ 9-10

20 U.S.C. §1098e ....................................................................................... 9

20 U.S.C. §1098aa(b) ................................................................................. 3

20 U.S.C. §1098aa(b)(5)............................................................................. 3

20 U.S.C. §1098aa(b)(6)............................................................................. 3

20 U.S.C. §1098bb(a)(1)............................................................................. 8

20 U.S.C. §1098bb(a)(2)(A) ................................................................. 4, 7-8

20 U.S.C. §1098bb(a)(2)(B) ........................................................................ 4

20 U.S.C. §1098bb(b)(1)............................................................................. 3

20 U.S.C. §1098bb(b)(2)............................................................................. 3

20 U.S.C. §1098cc ...................................................................................... 4

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

20 U.S.C. §1098ee(2) .............................................................................. 4-5

20 U.S.C. §1098ee(2)(A) ......................................................................... 4-5

20 U.S.C. §1098ee(2)(B) ......................................................................... 4-5

20 U.S.C. §1098ee(2)(C) ............................................................................ 5

iii

20 U.S.C. §1098ee(2)(D) ............................................................................ 5

Fed. R. App. P. 29(a)(2) ............................................................................. 2

Fed. R. App. P. 29(a)(4)(E) ........................................................................ 2

Legislative History

147 Cong. Rec. H7155 (Oct. 23, 2001) ....................................................... 7

147 Cong. Rec. S13311 (Dec. 14, 2001) ..................................................... 7

149 Cong. Rec. H2522-25 (Apr. 1, 2003) ................................................... 6

149 Cong. Rec. H2553-54 (Apr. 1, 2003) ................................................... 7

149 Cong. Rec. S10866 (July 31, 2003) ..................................................... 7

153 Cong. Rec. H10790 (Sept. 30, 2007) ................................................ 6-7

H.R. 2034, 117th Cong. §2 (2021) ............................................................. 8

H.R. 6800, 116th Cong. §150117 (2020).................................................... 9

Pub. L. 107-122, 115 Stat. 2386 (Jan. 15, 2002) ....................................... 3

Pub. L. 108-76, 117 Stat. 904 (Aug. 18, 2003) .......................................... 3

Pub. L. 109-8 § 220, 119 Stat. 23 (Apr. 20, 2005) ..................................... 9

Pub. L. 109-78, 119 Stat. 2043 (Sept. 30, 2005) ....................................... 3

Pub. L. 110-93, 121 Stat. 999 (Sept. 30, 2007) ..................................... 3, 7

Pub. L. 116-136, 134 Stat. 281 (Mar. 27, 2020) ........................................ 9

S. 2235, 116th Cong. §101 (2019) .............................................................. 8

S. Ct. R. 37.6 .............................................................................................. 2

iv

Other Authorities

Camera, Lauren,

Pelosi: Biden Lacks Authority to Cancel Student Debt,

U.S. NEWS & WORLD REP. (Jul. 28, 2021)....................................... 11

Lucca, David O., et al.,

Credit Supply and the Rise in College Tuition: Evidence from

the Expansion in Federal Student Aid Programs,

FED. RESERVE BANK OF N.Y. STAFF REP. #733 (rev. Feb. 2017) ....... 1

Notice of Debt Cancellation Legal Memorandum,

87 Fed. Reg. 52943 (Aug. 30, 2022) ................................................ 12

Rubinstein, Reed D.,

Memorandum for Betsy DeVos, Secretary of Education, re:

Student Loan Principal Balance Cancellation, Compromise,

Discharge, and Forgiveness Authority (Jan. 12, 2021) ............. 10-11

Somin, Ilya,

Federal Court Issues Dubious Decision Dismissing Six-State

Lawsuit Against Biden Loan Forgiveness Program for Lack

of Standing,

Volokh Conspiracy blog (Oct. 20, 2022) ........................................... 1

Stratford, Michael & Eugene Daniels,

How Biden Finally Got to ‘Yes’ on Cancelling Student Debt,

POLITICO (Aug. 25, 2022) ........................................................... 12-13

Tabarrok, Alex,

The Student Loan Giveaway is Much Bigger Than You

Think,

Marginal Revolution blog (Aug. 27, 2022) ....................................... 1

Use of the HEROES Act of 2003 to Cancel the Principal Amounts

of Student Loan,

46 O.L.C. __ (Aug. 23, 2022) ........................................................... 12

v

Interest of Amicus Curiae

Amicus curiae Hamilton Lincoln Law Institute (“HLLI”) is a

501(c)(3) public-interest law firm committed to, among other things,

defending the constitutional separation of powers and principles of

limited government against executive-branch abuse. E.g., Competitive

Enter. Inst. v. FCC, 970 F.3d 372 (D.C. Cir. 2020). This case not only

presents critical separation-of-powers issues, but has personal resonance

for the many attorneys of HLLI who expect to pay tuition for children

attending college. The government’s illegal changes to federal student

loan policy will create perverse incentives that will substantially raise

tuition for future students. E.g., David O. Lucca, et al., Credit Supply and

the Rise in College Tuition: Evidence from the Expansion in Federal

Student Aid Programs, FED. RESERVE BANK OF N.Y. STAFF REP. #733 (rev.

Feb. 2017); Alex Tabarrok, The Student Loan Giveaway is Much Bigger

Than You Think, Marginal Revolution blog (Aug. 27, 2022). Regrettably,

because this actuarially certain expectation of future economic harm is

not “imminent,” existing standing doctrine might preclude HLLI

attorneys from bringing suit on behalf of themselves. Missouri, on the

other hand, has suffered cognizable injury. App. 4a-5a; Ilya Somin,

Federal Court Issues Dubious Decision Dismissing Six-State Lawsuit

Against Biden Loan Forgiveness Program for Lack of Standing, Volokh

Conspiracy blog (Oct. 20, 2022). HLLI supports Missouri’s suit and the

1

plaintiffs’ successful suit in Brown v. Cardona, 2022 U.S. Dist. LEXIS

205875 (N.D. Tex. Nov. 10, 2022).

Under this Court’s Rule 37.6, 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 its counsel made

a monetary contribution to its preparation or submission.

Summary of the Argument

This brief seeks to aid the Court through adding important context

through focusing on the legislative text and history of the HEROES Act

that demonstrate the mastodon-in-the-mousehole problem here. Cf.

Whitman v. American Trucking Assoc., Inc., 531 U.S. 457, 468 (2001).

Argument

I.

The text and legislative history of the HEROES Act

demonstrate the absurdity and illegality of the executive

branch’s attempted violation of the major-questions

doctrine.

The administration has relied on the HEROES Act to both execute

the Debt Forgiveness Program—at a cost of hundreds of billions of

dollars—and to evade the normal notice-and-comment protections of the

2

Administrative Procedure Act. Cf. 20 U.S.C. §1098bb(b)(1)-(2). This

approach violates the text and intent of the Act.

The HEROES Act was a wartime measure passed in the wake of

the September 11 attacks and again shortly after the start of the Iraq

War. See Pub. L. 107-122, 115 Stat. 2386 (Jan. 15, 2002); Pub. L. 108-76,

117 Stat. 904 (Aug. 18, 2003). At first the Act was to sunset in 2005, but

Congress extended it for two additional years (Pub. L. 109-78, 119 Stat.

2043 (Sept. 30, 2005)), and in 2007, Congress made the Act permanent

with no amendments. Pub. L. 110-93, 121 Stat. 999 (Sept. 30, 2007).

From the acronym title of the bill to the text of the HEROES Act

itself, every aspect of the law is targeted primarily to military personnel.

Section 1098aa(b)

sets

forth

Congress’s

findings

justifying

the

legislation; each finding speaks exclusively with respect to the armed

forces and the men and women who serve in them. Congress recognized

that “The men and women of the United States military put their lives

on hold, leave their families, jobs, and postsecondary education in order

to serve their country and do so with distinction.” 20 U.S.C.

§1098aa(b)(5). The final finding concludes “There is no more important

cause for this Congress than to support the members of the United States

military and provide assistance with their transition into and out of

active duty and active service.” 20 U.S.C. §10988aa(b)(6).

3

Other provisions of the HEROES Act similarly are exclusively

devoted to members of the armed services. For instance, §10988cc deals

exclusively with “Tuition refunds or credits for members of armed forces”

and the definitions in Section 1098ee relate largely to terms such as

“Military Operation,” “Active Duty,” and “Qualifying National Guard

Duty.”

Furthermore, the Act only authorizes the Secretary to waive or

modify any provision relating to student financial assistance programs

“to ensure that recipients of student financial assistance . . . who are

affected individuals are not placed in a worse position financially in

relation to that financial assistance because of their status as affected

individuals.” 20 U.S.C. §1098bb(a)(2)(A) (emphasis added). Any action

the Secretary took must fulfill its objective “without impairing the

integrity of the student financial assistance programs.” 20 U.S.C.

§1098bb(a)(2)(B).

The bill defines “affected individual” as

an individual who—

(A) is serving on active duty during a war or other

military operation;

(B) is performing qualifying National Guard duty during

a war or other military operation;

4

(C) resides or is employed in an areas that is declared a

disaster area by any Federal, State, or local official in

connection with a national emergency; or

(D) suffered a direct economic hardship as a direct result

of a war or other military operation or national

emergency, as determined by the Secretary.

20 U.S.C. §1098ee(2). Subparts (A) and (B), like the rest of HEROES Act,

exclusively refer to members of the armed forces. Subparts (C) and (D)

are the only provisions of the HEROES Act that reach beyond members

of the armed force, but only in limited circumstances. The borrower must

reside or be employed in disaster area that has been declared in

connection with a national emergency, or the borrower must have

suffered an economic hardship as a direct result of a war, military

operation, or national emergency (e.g., spouses of service members called

to active duty or deployed overseas; residents of a city hit by a disruptive

terrorist attack). Subpart D also requires the Secretary to make a

determination that borrowers suffered a direct economic hardship

because of the military operation or national emergency.

“It is a fundamental canon of statutory construction that the words

of a statute must be read in their context and with a view to their place

in the overall statutory scheme.” Davis v. Mich. Dep’t of Treasury, 489

U.S. 803, 809 (1989). “Where the statute at issue is one that confers

authority upon an administrative agency, that inquiry must be ‘shaped,

at least in some measure, by the nature of the question presented’—

5

whether Congress in fact meant to confer the power the agency has

asserted.” W. Virginia v. EPA, 142 S. Ct. 2587, 2607-08 (2022) (quoting

FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159 (2000)). In

these “major questions” cases, “the ‘history and the breadth of the

authority that [the agency] has asserted,’ and the ‘economic and political

significance’ of that assertion, provide a ‘reason to hesitate before

concluding that Congress’ meant to confer such authority.” Id. at 2608

(quoting Brown & Williamson Tobacco Corp., 529 U.S. at 159-60).

Congress’s discussion of the bill showed, consistent with the text,

that representatives thought they were simply relieving active-duty

military from “making student loan payments … while they are away.”

149 Cong. Rec. at H2522 (Apr. 1, 2003) (Rep. Garrett). See also id. at

H2524 (Rep. Isakson) (the Act ensures that the “loan payments” of troops

who “serve us in the Middle East and in Iraq” “are deferred until they

return” (emphasis added)); id. at H2524-25 (Rep. Boehner) (“None of us

believe that our active duty soldiers should … have to make payments on

their student loans while in fact they are not here.”); id. at H2525 (Rep.

Burns) (“The HEROES bill would excuse military personnel from their

Federal student loan obligations while they are on active duty”). The

2007 discussion was no different. See 153 Cong. Rec. at H10790 (Sept. 30,

2007) (“This bill is specific in its intent to insure that, as a result of a war

or military contingency operation or national emergency, our men and

6

women in uniform are protected.”) (Rep. Kline); id. (“What this bill does

is allow the Secretary of Education to accommodate the unique needs of

our student soldiers”) (Rep. McKeon).

We hesitate to call these statements part of a “debate.” The 2001

HEROES Act passed by unanimous voice vote weeks after 9/11. 147

Cong. Rec. H7155 (Oct. 23, 2001); 147 Cong. Rec. S13311 (Dec. 14, 2001).

The 2003 Act passed the House 421-1 via a suspension of the rules, and

the Senate passed it by unanimous consent. 149 Cong. Rec. S10866 (July

31, 2003); 149 Cong. Rec. H2553-54 (Apr. 1, 2003). The 2007 Act that

made the HEROES Act permanent was a three-paragraph bill that

Congress passed by voice vote. Pub. L. 110-93, 121 Stat. 999.

And the first decades of use of the HEROES Act reflects those

limited uncontroversial goals of avoiding “plac[ing affected individuals]

in

a

worse

position.”

20

U.S.C. §1098bb(a)(2)(A).

Despite

the

September 11 attacks and multiple wars and the devastation of

Hurricanes Katrina and Harvey, the Department never used the

HEROES Act to cancel a single soldier’s—much less a civilian’s—loan

debt. Not one legislator suggested in the runup to its passage that the

HEROES Act authorized the Department to do so.1

1 That one does so opportunistically as amicus decades later carries

no weight, even if he had done so contemporaneously. “What motivates

one legislator to vote for a statute is not necessarily what motivates

7

Little wonder: the statute permits the Department only to “waive”

or “modify” certain provisions. 20 U.S.C. §1098bb(a)(1). But these

“modest words” cannot bear the weight the Department places on them.

W. Virginia, 142 S. Ct. at 2609. The Department’s waivers or

modifications can do no more than ensure that borrowers “are not

place[d] 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) (emphasis added). Canceling debt puts debtors

in a better position, rather than the same position in relation to their debt

as before the “war or other military operation or national emergency.” 20

U.S.C. §1098bb(a)(1). And as discussed above, the legislative discussion

assumed that the Secretary would defer, rather than cancel, obligations.

Congress has “conspicuously and repeatedly declined to enact”

explicit legislation seeking to do what the administration claims the

HEROES Act does here. W. Virginia v. EPA, 142 S. Ct. 2587, 2610 (2022);

see, e.g., S. 2235, 116th Cong. §101 (2019) (cancelling up to $50,000 of

student loan debt for those who make under $100,000) (died without vote

after being referred to committee); H.R. 2034, 117th Cong. §2 (2021)

(cancelling the outstanding balance on loans for all borrowers under a

certain income cap) (died without vote after being referred to committee).

scores of others to enact it.” Dobbs v. Jackson Women’s Health Org., 142

S. Ct. 2228, 2256 (2022) (quotation and citation omitted).

8

Even after the HEROES Act first passed, Congress made it harder,

rather than easier, to cancel student-loan debt—for example, making it

tougher to discharge federally guaranteed loans in bankruptcy. 11

U.S.C. §523(a)(8); Pub. L. 109-8 § 220, 119 Stat. 23, 59 (Apr. 20, 2005).

When Congress did want to provide relief for student debt—

including during the COVID crisis—it did so with specificity and

modulation reflecting legislative compromise, rejecting proposals that

went only a fraction as far as the administration is attempting here. See,

e.g., 20 U.S.C. §§1087e(d)(1)(D) & (E) and 1098e (income repayment

plans); 20 U.S.C. §1087e(e)(1) (income-contingent repayment plans); 20

U.S.C. §1087e(h) (relief where borrower can demonstrate fraud); compare

also CARES Act, Pub. L. 116-136 § 3513, 134 Stat. 281, 404 (Mar. 27,

2020) (mandating forbearance, but not forgiveness, on swath of federal

student loans) and id. §2206, 134 Stat. at 346-47 (providing tax benefits

to employers who pay employee student loans) with H.R. 6800, 116th

Cong. §150117 (2020) (proposing to cancel up to $10,000 of student loan

debt for economically distressed borrowers) (passed House 208-199 and

died in Senate after July 2020 committee hearings).

And Congress has never tasked the Department of Education with

identifying broad classes of borrowers entitled to loan forgiveness.

Rather, when Congress wants the Secretary to cancel debt for a class of

borrowers, it explicitly describes those groups. E.g., 20 U.S.C. §1078-10

9

(teachers); 20 U.S.C. §1078-10(c)(3) (teachers in mathematics, science, or

special education); 20 U.S.C. §1078-11 (service in areas of national need);

20 U.S.C. §1087ee (certain public service); 20 U.S.C. §1098(d) (disabled

veterans). By attempting to do so itself, the Department is seeking to

expand and “transform” its statutorily prescribed role. W. Virginia, 142

S. Ct. at 2610. These facts alone justify applying the major-questions

doctrine because courts “presume that Congress intends to make major

policy decisions itself, not leave those decisions to agencies.” W. Virginia,

142 S. Ct. at 2613 (cleaned up); see also Ala. Ass’n of Realtors v. HHS,

141 S. Ct. 2485, 2490 (2021) (rejecting Biden administration attempt to

use COVID to rationalize gigantic unrelated wealth transfer through

agency action).

Because the major-questions doctrine applies, the Department

needed “clear congressional authorization” for the Program. W. Virginia,

142 S. Ct. at 2609. It is unimaginable that Congress gave the executive

branch that authority in uncontroversial bills passed by voice vote. Thus,

the Rubenstein Memo correctly concluded that the HEROES Act was

never intended to provide the Secretary broad discretion to execute a

mass

cancellation

of

federal

student

debt.

Reed

Rubenstein,

Memorandum for Betsy DeVos, Secretary of Education, re: Student Loan

Principal

Forgiveness

Balance

Cancellation,

Authority

6

Compromise,

(Jan. 12,

10

2021)

Discharge,

and

(available

at

https://tinyurl.com/a4n326cw). The HEROES Act does not provide the

Secretary the statutory authority to perform a “blanket or mass

cancellation, compromise, discharge, or forgiveness of student loan

principal balances, and/or to materially modify the repayment amounts

or terms thereof, whether due to the Covid-19 pandemic or for any other

reason.” Id. at 8. As Speaker Nancy Pelosi stated,

People think that the president of the United States has

the power for debt forgiveness … He does not. He can

postpone, he can delay, but he does not have that power.

That has to be [accomplished through] an act of

Congress.

Lauren Camera, Pelosi: Biden Lacks Authority to Cancel Student Debt,

U.S. NEWS & WORLD REP. (Jul. 28, 2021).

The

Biden

Administration’s

flip

is

thinly

reasoned.

The

administrative record is limited to a 13-page memorandum marked

“Confidential” prepared by Undersecretary of Education James Kvaal

dated August 24, 2022 (Kvaal Memo). The Kvaal Memo references

internal Department of Education analysis and outside sources as

evidence of the negative impact of the pandemic on student loan

borrowers as well as the justifications for the income thresholds and

amounts of relief granted. Accompanying the Kvaal Memo was a

memorandum from Richard Cordray, the Chief Operating Officer for

Federal Student Aid, to Secretary Cardona authorizing the program

11

(“Cordray Memo”). The Cordray Memo is also dated August 24, 2022 and

was signed by Secretary Cardona at 9:25 a.m. that same day. This thin

“administrative record” only surfaced after the filing of litigation

challenging the loan forgiveness plan. See ECF No. 27-1 (Exh. A),

Nebraska v. Biden, No. 22-cv-01040 (E.D. Mo. Oct. 7, 2022); ECF No. 24-1

(Exh. A), Brown v. U.S. Dept. of Educ., No. 22-cv-00908 (N.D. Tex.

Oct. 19, 2022).

The Kvaal and Cordray Memos are dated one day after two legal

memorandums that assert that the HEROES Act does in fact grant the

Secretary the authority to perform mass student debt cancellation. See

Notice of Debt Cancellation Legal Memorandum, 87 Fed. Reg. 52943,

52944 (Aug. 30, 2022) (originally dated Aug. 23, 2022); Use of the

HEROES Act of 2003 to Cancel the Principal Amounts of Student Loan,

46 O.L.C. __ (Aug. 23, 2022).

Of course, the Program did not simply come to fruition within 48

hours in August 2022. Rather, it was the culmination of months of

behind-the-scenes legal maneuvering and political lobbying that avoided

the legislative process for the cynical purpose of pretending to fulfill a

campaign promise before a challenging election cycle, and then blaming

courts when the administration would inevitably be held to account. See

46 O.L.C. Slip Op. at 11-12, n.2 (noting that the Education Department

requested OLC examine broad-based debt relief on August 16, 2021);

12

Michael Stratford & Eugene Daniels, How Biden Finally Got to ‘Yes’ on

Cancelling Student Debt, POLITICO (Aug. 25, 2022).

“‘[E]nabling legislation’ like the HEROES Act is not an ‘open book

to which the agency may add pages and change the plot line.’” Brown v.

Cardona, 2022 U.S. Dist. LEXIS 205875, *31-*32 (N.D. Tex. Nov. 10,

2022) (quoting W. Virginia, 142 S. Ct. at 2609).

No presidential administration has ever lawfully adopted a

program of similar size, scale, and importance without notice and

comment. The baseline presumption is that important and consequential

agency actions should be “tested via exposure to diverse public comment.”

Int’l Union v. MSHA, 407 F.3d 1250, 1259 (D.C. Cir. 2005). So too here.

The Debt Forgiveness Program is ultra vires.

Conclusion

For these reasons, this Court should deny the government’s

application.

13

Dated: November 23, 2022

Respectfully submitted,

/s/ Theodore H. Frank

Theodore H. Frank

HAMILTON LINCOLN LAW INSTITUTE

1629 K Street, NW, Suite 300

Washington, DC 20006

Telephone: (703) 203-3848

Email: ted.frank@hlli.org

Counsel for Amicus Curiae

Hamilton Lincoln Law Institute

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