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

Supreme Court briefAug 19, 2024

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No. 24A173

In the Supreme Court of the United States

JOSEPH R. BIDEN, JR., PRESIDENT OF THE UNITED STATES, ET AL.,

Applicants,

MISSOURI, ET AL.,

BRIEF FOR TEXAS, ALASKA, AND SOUTH CAROLINA

AS AMICI CURIAE IN SUPPORT OF RESPONDENTS

KEN PAXTON

Attorney General of Texas

BRENT WEBSTER

First Assistant Attorney General

OFFICE OF THE

ATTORNEY GENERAL

P.O. Box 12548 (MC 059)

Austin, Texas 78711-2548

Tel.: (512) 936-1700

Aaron.Nielson@oag.texas.gov

AARON L. NIELSON

Solicitor General

Counsel of Record

LANORA C. PETTIT

Principal Deputy Solicitor General

JACOB C. BEACH

Assistant Solicitor General

Counsel for Amici States

T A B L E OF C O N T E N TS

Page

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

Interest of Amici Curiae ................................................................................................................. 1

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

Argument .......................................................................................................................................... 5

The SAVE Plan’s Final Rule is unlawful many times over. ...................................... 5

Congress has not authorized the Plan. ................................................................. 5

The SAVE Plan also flunks the APA. ................................................................ 12

II. This application underscores the importance of the Amici States’

application....................................................................................................................... 14

The Alaska Injunction covers the provisions addressed in this

application. ............................................................................................................. 14

The Amici States have standing to challenge the entire SAVE

Plan. ......................................................................................................................... 18

The Eighth Circuit’s injunction nullifies the federal government’s

balance-of-harms arguments with respect to the Alaska

injunction. ............................................................................................................... 20

III. The Court should grant certiorari before judgment for both

applications. .................................................................................................................... 21

Conclusion ....................................................................................................................................... 23

T A B L E OF A U T H OR I T I E S

Page(s)

Cases:

Alabama Association of Realtors v. HHS,

594 U.S. 758 (2021) .................................................................................................................... 7

Am. Inst. of Certified Pub. Accts. v. IRS,

804 F.3d 1193 (D.C. Cir. 2015) ............................................................................................... 19

Am. Tradition P’ship, Inc. v. Bullock,

567 U.S. 516 (2012) .................................................................................................................. 22

Biden v. Nebraska,

600 U.S. 482 (2023) .................................................................................. 1-10, 12-13, 16, 21-22

Concrete Pipe & Prods. of Cal., Inc. v. Constr. Laborers Pension Tr.,

508 U.S. 602 (1993) .................................................................................................................. 19

Dep’t of Com. v. New York,

588 U.S. 752 (2019) .................................................................................................................... 7

DHS v. Regents of the Univ. of Cal.,

591 U.S. 1 (2020) ...................................................................................................................... 13

FDA v. Brown & Williamson Tobacco Corp.,

529 U.S. 120 (2000) .................................................................................................................... 8

Loper Bright Enters. v. Raimondo,

144 S.Ct. 2244 (2024) ....................................................................................................... 3, 9, 11

Mistretta v. United States,

488 U.S. 361 (1989) .................................................................................................................. 11

NRDC, Inc. v. Perry,

940 F.3d 1072 (9th Cir. 2019) ................................................................................................. 13

Nat’l Lifeline Ass’n v. FCC,

921 F.3d 1103 (D.C. Cir. 2019) ............................................................................................... 13

NLRB v. Jones & Laughlin Steel Corp.,

325 U.S. 838 (1945) .................................................................................................................. 21

Ohio v. EPA,

144 S.Ct. 2040 (2024) ........................................................................................................... 4, 22

Prometheus Radio Project v. FCC,

652 F.3d 431 (3d Cir. 2011) ................................................................................................ 13-14

United States v. X-Citement Video, Inc.,

513 U.S. 64 (1994) .................................................................................................................... 11

Util. Air Regul. Grp. v. EPA,

573 U.S. 302 (2014) ................................................................................................................ 7- 9

West Virginia v. EPA,

597 U.S. 697 (2022) ....................................................................................................... 3, 6-9, 22

Whitman v. Am. Trucking Ass’ns,

531 U.S. 457 (2001) .................................................................................................................. 12

Constitutional Provision and Statutes:

U.S. Const., art. I, §9 ..................................................................................................................... 11

5 U.S.C.:

§706(2)(A).................................................................................................................................. 12

§706(2)(D) ................................................................................................................................. 12

20 U.S.C.:

§1087e(d)(1) .............................................................................................................................. 10

§1087e(d)(1)(D) ................................................................................................................... 9, 11

§1087e(e)(4) ................................................................................................................................ 9

§1098e(a)(3) .............................................................................................................................. 10

§1098e(b)(1) .............................................................................................................................. 10

31 U.S.C. §3711(a).......................................................................................................................... 10

Other Authorities:

Improving Income Driven Repayment for the William D. Ford Federal

Direct Loan Program and the Federal Family Education Loan (FFEL)

Program/ SAVE Plan, 88 Fed. Reg. 43,820 (July 10, 2023)..................................... 8, 10, 12

Ingrid Jacques, Courts Keep Telling Biden His Student Loan Scam Is Illegal.

Will It Stop Him? Nah!, USA TODAY (July 1, 2024, 4:04 A.M. ET) .............................. 2, 3

Michael Brickman, Democrats are Plotting a Brazen $147B Student-Loan

Debt ‘October Surprise,’ N.Y. POST (Aug. 14, 2024) ............................................................. 2

Monroe Harless, Education Department Attacks Republicans, Touts

Biden’s Agenda in Official Letter, THE FEDERALIST (July 15, 2024) ..................... 2, 8, 21

iii

I N T E R ES T O F A M IC I C U R I A E

Amici curiae are the States of Texas, Alaska, and South Carolina, who are applicants

in Alaska v. Department of Education, No. 24A11 (U.S.). The Amici States have already

secured a nationwide injunction (the Alaska injunction) against the portions of the SAVE

Plan that the federal government’s application asks this Court to allow to go into effect. As

explained in the Amici States’ application, however, the U.S. Court of Appeals for the Tenth

Circuit erroneously stayed that injunction in an unreasoned order over the dissent of Judge

Tymkovich. Because the federal government’s application would have the Court disregard

the Alaska injunction, the Amici States’ interests in the enforceability of both that

injunction and the Eighth Circuit’s injunction are implicated. Indeed, as counsel explained

in his letter to the Court of August 10, 2024, so long as the Eighth Circuit’s injunction

remains in place, this Court need not provide emergency relief to the Amici States.

Furthermore, allowing the provisions of the SAVE Plan that the federal government’s

application addresses to go into effect would irreparably harm the Amici States. Before the

District of Kansas, the federal government offered no evidence contradicting the States’

evidence of injury. The Amici States have a significant interest in preventing that

irreparable harm. They also have additional merits and standing arguments that fully

support those of Respondents here.*

No counsel for any party authored this brief, in whole or in part. No person or entity

other than amici contributed monetarily to its preparation or submission. On August 15,

2024, counsel of record for all parties received notice of amici’s intention to ﬁle this brief.

S U M M A R Y O F TH E A R G U M E N T

In many respects a rehash of their response to the Amici States’ application in the

Alaska litigation, the federal government’s application here is most remarkable for what it

lacks: (i) any defense of President Biden’s public boasting that this Court’s decision in

Biden v. Nebraska, 600 U.S. 482 (2023), “didn’t stop” him from nationwide student-loan

cancellation1; (ii) any defense of Secretary Cardona’s use of official communication

channels to proclaim to borrowers across the nation that “the Biden-Harris team” will

continue to battle “Republican elected officials” through this litigation2; (iii) any reason

why its reading of the Higher Education Act would not allow the Department of Education

to cancel every penny of the $1.6 trillion in student loans the Department holds; (iv) any

discussion of the Department’s decision to ignore Nebraska when promulgating the SAVE

Plan, even though this Court decided Nebraska ten days before the Department published

the Final Rule; or (v) an explanation why the Court should grant certiorari before judgment

for its application, but not the Amici States’ application, even though the latter application

directly addresses the portions of the SAVE Plan that the federal government asks this

Court to allow the Department to implement.

Ingrid Jacques, Courts Keep Telling Biden His Student Loan Scam Is Illegal. Will

It Stop Him? Nah!, USA TODAY (July 1, 2024, 4:04 A.M. ET), https://bit.ly/46fPThb.

Monroe Harless, Education Department Attacks Republicans, Touts Biden’s

Agenda in Official Letter, THE FEDERALIST (July 15, 2024), https://perma.cc/4T26-A3X5;

see also Michael Brickman, Democrats are Plotting a Brazen $147B Student-Loan Debt

‘October Surprise,’ N.Y. POST (Aug. 14, 2024), https://bit.ly/4dNwCqb.

In Nebraska, this Court held that “‘[t]he basic and consequential tradeoffs’ inherent in

a mass debt cancellation program ‘are [questions] that Congress would likely have intended

for itself.’” Id. at 506 (quoting West Virginia v. EPA, 597 U.S. 697, 730 (2022)). The Court

thus refused to allow the federal government to give away $430 billion, id. at 504, and left

in place a nationwide injunction entered by the Eighth Circuit preventing that from

happening. That should have been the end of it. Agencies cannot act without authority from

Congress and must respect court decisions. See Loper Bright Enters. v. Raimondo, 144

S.Ct. 2244, 2257 (2024).

Rather than doing so, however, the Department plowed ahead with the SAVE Plan—

which costs $45 billion more than the HEROES Act Plan that was at issue in Nebraska. See

Appendix to U.S. Application (U.S.Appx.) at 6a. Indeed, the President has announced that

“[t]he Supreme Court tried to block me from relieving student debt. But they didn’t stop

me.” Jacques, supra. Yet the Court applied the major questions doctrine in Nebraska

because “[t]he economic and political significance of the Secretary’s action is staggering,”

the “Secretary’s assertion of administrative authority has conveniently enabled him to

enact a program that Congress has chosen not to enact itself,” and “it would seem more

accurate to describe the program as being in the wheelhouse of the House and Senate

Committees on Appropriations” than of any federal agency. Nebraska, 600 U.S. at 502-04

(cleaned up). Nothing in that analysis remotely suggests the Court’s ruling would have been

different had the federal government used its second-choice statute to effectuate its “mass

debt cancellation program.” Id. at 506. The Court thus should grant certiorari before

judgment and summarily order vacatur of the SAVE Plan based on Nebraska alone. At a

minimum, it should deny the federal government’s application.

But that is just the beginning of the SAVE Plan’s flaws. As the Amici States’

application explains, the Court will be hard pressed to find a clearer example of unreasoned

decisionmaking. The Department finalized the SAVE Plan on July 10, 2023—ten days after

this Court decided Nebraska. Yet the Final Rule expresses the Department’s confidence

that it may pursue hundreds of billions of dollars’ worth of debt relief under the HEROES

Act and says the Department was waiting on this Court’s decision. See, e.g., Application

(App.) at 7, Alaska v. Dep’t of Educ., No. 24A11 (July 19, 2024). This Court, however, had

already decided the issue. Such a black-and-white misstatement of a material point of law

and fact cannot possibly stand under Ohio v. EPA, 144 S.Ct. 2040 (2024). Furthermore, the

Department has yet to identify any case upholding any rule in the history of the United

States of equivalent scope, complexity, or cost for which only a 30-day comment period was

provided. To put this truncated comment period in perspective, the Department provided

the public roughly one day per $15 billion—or roughly $660 million per hour and $11 million

per minute—to comment on this massive handout.

Nonetheless, the federal government asks this Court to vacate the Eighth Circuit’s

injunction to allow provisions of the SAVE Plan worth hundreds of billions of dollars to go

into effect. Its arguments uniformly fail for the reasons given by Respondents; the Eighth

Circuit did not err by doing again essentially the same thing it did in Nebraska.

In seeking relief from this Court, however, the federal government’s application

ignores another elephant in the room: The Amici States have already secured an injunction

against those provisions, and their application asks this Court to vacate the Tenth Circuit’s

unreasoned stay of that injunction. The federal government also challenges Missouri’s

standing, notwithstanding Nebraska, but ignores that the District of Kansas found—based

on uncontroverted evidence—that the Amici States have standing to challenge the SAVE

Plan in its entirety. The federal government’s application thus only underscores why the

Court should, at a minimum, grant the Amici States’ application. More fundamentally, it

demonstrates why the Court should construe both applications as petitions for certiorari

and grant both, thus allowing the Court to definitively resolve every standing and merits

issue related to the unlawful SAVE Plan and associated Final Rule.

ARGUMENT

The SAVE Plan’s Final Rule is Unlawful Many Times Over.

The Eighth Circuit correctly granted an injunction pending appeal because

Respondents have demonstrated a likelihood of success on the merits and the remaining

injunction factors support such relief. Yet the Eighth Circuit’s analysis does not identify all

the reasons why the SAVE Plan (and associated Final Rule) is unlawful. In evaluating the

federal government’s application, the Court should not lose sight of important additional

failings.

A. Congress has not authorized the Plan.

The Eighth Circuit correctly explained why the SAVE Plan fails under Nebraska.

After all, with a price tag of $475 billion, “[t]he SAVE plan is even larger in scope than the

loan-cancellation program” in Nebraska. U.S.Appx.6a. Yet the federal government again

relies on “wafer-thin reed[s]” to justify “such sweeping power.” U.S.Appx.8a (alteration in

original) (quoting Nebraska, 600 U.S. at 499). The Eighth Circuit accordingly enjoined the

federal government “from any further forgiveness of principal or interest, from not

charging borrowers accrued interest, and from further implementing SAVE’s paymentthreshold provisions” with respect to “any borrower whose loans” are subject to the plan.

U.S.Appx.9a. The Eighth Circuit was right to reject the federal government’s statutory

arguments—especially because Nebraska eliminates any doubt that the major questions

doctrine applies. But to be clear, the Department’s statutory arguments would fail even if

the SAVE Plan cost only $475.00—not $475,000,000,000.00.

In Nebraska, the Court held that “‘[t]he basic and consequential tradeoffs’

inherent in a mass debt cancellation program ‘are ones that Congress would likely have

intended for itself.’” Nebraska, 600 U.S. at 506 (quoting West Virginia, 597 U.S. at 730).

Because the SAVE Plan is also a “mass debt cancellation program,” the same principle

controls here. The federal government attempts (at 30-31) to portray Nebraska’s holding

as limited to the HEROES Act. Even if that were so (and it is not), that would go only to

whether the Higher Education Act (HEA) satisfies the clear-statement rule. Whether the

doctrine applies in the first place, however, is “inherent” to the question and adheres to any

“mass debt cancellation program.” Nebraska, 600 U.S. at 506 (emphasis added).

Even apart from Nebraska’s holding with respect to student loans in particular, the

SAVE Plan satisfies every plausible consideration used to determine whether a question is

major, including (1) “economic” significance; (2) “political” significance; (3) “histor[ical]”

precedent; and (4) “the breadth of the authority … asserted.” West Virginia, 597 U.S. at

721. All support the Eighth Circuit’s injunction.

First, the SAVE Plan’s economic significance is self-evident. Even the Department’s

$156 billion estimate is three times the $50 billion price tag that was sufficient to trigger

the doctrine in Alabama Association of Realtors v. HHS, 594 U.S. 758 (2021) (per curiam).

And the SAVE Plan’s true cost of approximately $475 billion, U.S.Appx.6a, is nearly ten

times that amount and even larger than the $430 billion at issue in Nebraska. As this Court

has explained, given such a massive price tag, “[t]here is no serious dispute that the

Secretary claims the authority to exercise control over ‘a significant portion of the American

economy.’” Id. at 503 (quoting Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 324 (2014)).

Second, as in Nebraska, the political significance of the SAVE Plan is confirmed by the

fact that “the Secretary’s assertion of administrative authority has ‘conveniently enabled

[him] to enact a program’ that Congress has chosen not to enact itself.” Id. (quoting West

Virginia, 597 U.S. at 731). If anything, that the highest levels of the Executive Branch are

using it as a partisan tool in an election year shows that the SAVE Plan is more politically

significant than the HEROES Act Plan—a point underscored (hopefully unintentionally)

by the application’s request for oral argument in this Court precisely when the issue will be

most politically salient. Judges “are not required to exhibit a naiveté from which ordinary

citizens are free.” Dep’t of Com. v. New York, 588 U.S. 752, 785 (2019) (cleaned up).

Third, as the District of Kansas explained, the SAVE Plan “represent[s] the first time

the Secretary has gone beyond the number set by Congress” to rewrite the material terms

of the loans Congress authorized. Appendix to Alaska et al. Application (AK.Appx.) at 027a,

Alaska, supra. Yet “[w]hen an agency claims to discover in a long-extant statute an

unheralded power to regulate ‘a significant portion of the American economy,’” courts

“typically greet its announcement with a measure of skepticism.” UARG, 573 U.S. at 324

(quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 123 (2000)). The

Department cannot overcome that skepticism by claiming that what it seeks to do here

merely incrementally extends prior practice when the SAVE Plan costs 30 times as much

as the previous highwater mark. Indeed, the Secretary boasts that this plan is “the most

affordable student loan repayment plan in history.” Harless, supra (emphasis added).

The SAVE Plan is similarly transformative in the way it turns putative “loans” into

partial grants. For undergraduate debt, “expected payments per $10,000 borrowed drop

from $11,844 … to $6,121.” Improving Income Driven Repayment for the William D. Ford

Federal Direct Loan Program and the Federal Family Education Loan (FFEL) Program/

SAVE Plan, 88 Fed. Reg. 43,820, 43,880 (July 10, 2023) (Final Rule). In other words, what

had been an actual loan with repayment of principal and interest is transformed into a

roughly 40% outright gift and 60% interest-free loan. For many borrowers, the

transformation is even starker: “Borrowers with only undergraduate debt who have

lifetime income in the bottom quintile are projected to repay $873 per $10,000 ….” Id. at

43,881. And as the Amici States’ application explains, millions of borrowers pay nothing at

all. This is plainly transformative. It was meant to be.

Fourth, “the breadth of the authority that [the Department] has asserted” is also fatal

to the SAVE Plan. West Virginia, 597 U.S. at 721. Here, the Department offers no reason

why, under its unprecedented reading of the statute, it could not abolish all $1.6 trillion of

student debt in the Department’s portfolio. Yet that is essentially all “the Government’s

$1.7 trillion in annual discretionary spending.” Nebraska, 600 U.S. at 503.

Finally, although this factor is obviously less relevant after Loper Bright, it is also

significant that the Department has no relevant expertise here. After all, the Department

has never successfully promulgated a rule like this one. The closest is the HEROES Act

Plan, which was smaller but still unlawful. The Department also plainly has no more

expertise than the EPA did in West Virginia and UARG, yet the EPA lost. As the Court

has explained, when the price tag of a program runs into the billions of dollars—let alone

nearly half a trillion dollars—“the program” falls within “the ‘wheelhouse’ of the House and

Senate Committees on Appropriations.” Nebraska, 600 U.S. at 504.

Because the major questions doctrine applies, the question is whether the HEA

supplies “‘clear congressional authorization.’” West Virginia, 597 U.S. at 723 (quoting

UARG, 573 U.S. at 324). Here, the statutory provisions do not authorize mass cancellation

at all, let alone give “clear … authorization” for it. Id.

The Department’s argument fails at the outset because it relies on a provision that does

not mention loan forgiveness. Instead, the HEA allows the Secretary to create “an income

contingent repayment plan, with varying annual repayment amounts based on the income

of the borrower, paid over an extended period of time prescribed by the Secretary, not to

exceed 25 years.” 20 U.S.C. §1087e(d)(1)(D) (emphasis added); see also id. §1087e(e)(4)

(“[Such plans] shall require payments that vary in relation to the appropriate portion of the

annual income of the borrower … as determined by the Secretary.” (emphasis added)).

Nevertheless, the Department claims that the Secretary has “discretion as to how

much a borrower must pay,” with no floor—only a ceiling that the repayment period

“cannot exceed 25 years” and that the amount repaid “must be set based upon the

borrower’s annual adjusted gross income and … account for the spouse’s income if the

borrower is married and files a joint tax return.” Final Rule at 43,826-27. But the

Department’s reading ignores the crucial word “repayment.” Although the HEA allows for

loan forgiveness in certain specific circumstances, Nebraska, 600 U.S. at 484,

§1087e(d)(1)(D) is not one of them. In fact, Congress insisted that “repayment” “includ[e]

principal and interest on the loan.” 20 U.S.C. §1087e(d)(1) (emphasis added).

Furthermore, Congress requires a showing of “partial financial hardship” before the

Secretary can create plans with terms similar to the SAVE Plan’s (i.e., low payments

followed by forgiveness). To qualify, the borrower must show that the “annual amount due”

on the loan exceeds “15 percent” of income exceeding “150 percent of the poverty line.” Id.

§§1098e(a)(3)(A)-(B), (b)(1). Yet the Department here seeks to make forgiveness easier for

essentially every borrower than Congress did for those suffering financial hardship—which

turns the HEA upside down. The Department also makes two statutes superfluous:

Congress’s amendments to the HEA in 2007 and 2010. See NCLA Amicus Br. at 15, Alaska,

No. 24A11 (U.S. July 16, 2024) (“The 2007 CCRA and the 2010 HCERA make no sense if

the 1993 HEA Amendments already authorized the Department to unilaterally design a

more generous repayment plan like SAVE.”). And the SAVE Plan also nullifies the many

limits Congress has put on grant programs, to say nothing of Congress’s directive that

federal agencies must “try to collect a claim of the United States Government for money ...

arising out of the activities of, or referred to, the agency.” 31 U.S.C. §3711(a).

Against all of this, the federal government argues (at 37-38) that past policies have

assumed that loan cancellation is permissible at the end of 20 or 25 years of payments. Yet

assumptions about what claimed ambiguities in a statute might allow an agency to do are

the opposite of a clear statement, all the more so after Loper Bright. Regardless, as the

District of Kansas correctly explained, what the Department attempts to do here goes far

beyond what any administration has done before. AK.Appx.027a.

The Department’s theory also has no limiting principle. Under its view, it could

forgive 100% of every loan at the stroke of a pen merely by setting payments at 0.1% of

discretionary income, defined as income above 3000% of the federal poverty line, for two

months. Yet this Court construes statutes to avoid constitutional doubts, not invite them.

See, e.g., United States v. X-Citement Video, Inc., 513 U.S. 64, 78 (1994).

Here, the Department’s argument is hard to square with Article I’s allocation of

spending power to Congress. U.S. Const., art. I, §9. And if Congress in §1087e(d)(1)(D)

truly gave the Department discretion to give away hundreds of billions of dollars (or more)

merely because the Secretary believes it would be “appropriate,” then there’s no intelligible

principle. “[A]pplication of the nondelegation doctrine principally has been limited to the

interpretation of statutory texts, and, more particularly, to giving narrow constructions to

statutory delegations that might otherwise be thought to be unconstitutional.” Mistretta v.

United States, 488 U.S. 361, 373 n.7 (1989). It is hard to imagine a scenario where such a

narrowing construction would be more warranted than when an agency seeks to give away

$475 billion—and, by implication, claims power to give away $1.6 trillion—based on the

word “appropriate.” After all, “the degree of agency discretion that is acceptable varies

according to the scope of the power congressionally conferred,” and Congress “must

provide substantial guidance” with respect to “standards that affect the entire national

economy.” Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 475 (2001).

B. The SAVE Plan also flunks the APA.

Even if the Department had statutory authority to authorize mass-debt cancellation,

the SAVE Plan would violate the APA because, inter alia, (i) it is arbitrary and capricious,

5 U.S.C. §706(2)(A), and (ii) a mere 30-day comment period for one of the largest and most

expensive regulations in history is far too short, id. §706(2)(D).

As explained in the Amici States’ application, to estimate that the SAVE Plan

would cost ‘only’ $137.9 billion, the Department’s Proposed Rule excluded the HEROES

Act Plan’s massive debt cancellation, which debt the Department assumed would be off the

books before the SAVE Plan kicked in. Unsurprisingly, a commenter asked the

Department to consider the SAVE Plan’s cost if this Court were to reject the HEROES

Act Plan—as seemed likely given the Court had already granted certiorari before judgment

and left the Eighth Circuit’s nationwide injunction in place. This issue is critical: Without

HEROES Act cancellation, the SAVE Plan’s costs triple. See, e.g., U.S.Appx.6a, 63a.

The Department, however, refused to update its cost estimates because it was

“confident” it could “pursue debt relief” under the HEROES Act even though it was

“awaiting the Supreme Court’s ruling on the issue.” Final Rule, at 43,875. This Court,

however, had decided Nebraska a full ten days before the rule was published. It is hard to

imagine what could be more arbitrary and capricious than ignoring a decision of this Court

that tripled the cost of a program that was already in major questions territory.

Although the federal government says nothing about this issue in its application, it has

previously defended the Department’s refusal to engage with Nebraska on the ground that

the Secretary sent the SAVE Plan to the General Printing Office before Nebraska was

decided—as if rushing a rule out the door to avoid a decision of this Court isn’t itself an

indictment. But that is not even what the Secretary said the very day this Court decided

Nebraska. See, e.g., App. at 25, Alaska, supra. Moreover, it ignores that “agencies are free

to withdraw a proposed rule before it has been published in the Federal Register, even if

the rule has received final agency approval.” NRDC, Inc. v. Perry, 940 F.3d 1072, 1077 (9th

Cir. 2019). To be sure, this is not the SAVE Plan’s only violation of basic requirements of

reasoned decisionmaking under the APA, but it is enough. A federal agency’s decision to

blind itself to precedent from this Court is the opposite of reasoned decisionmaking.

The Department’s defense of its truncated 30-day comment period also cannot be

squared with the APA requirement that commenters be given a “meaningful opportunity”

to comment. Prometheus Radio Project v. FCC, 652 F.3d 431, 453 (3d Cir. 2011) (emphasis

added). Courts have not hesitated to invalidate agency actions where the comment periods

were too short to provide such an opportunity. See id. (invalidating 28-day comment period);

Nat’l Lifeline Ass’n v. FCC, 921 F.3d 1103, 1117 (D.C. Cir. 2019) (14 days). The point of

notice-and-comment rulemaking is to allow the public to provide relevant information and

to explain the pitfalls of a proposal in time for the agency to avoid errors. This is not a mere

formality, much less a box-checking exercise, but instead is the method “by which federal

agencies are accountable to the public and their actions subject to review by the courts.”

DHS v. Regents of the Univ. of Cal., 591 U.S. 1, 16 (2020).

The States are not asking courts to graft new procedural requirements onto the APA—

only to enforce Congress’s mandate that agencies provide a “meaningful opportunity” to

comment on proposed rule. See, e.g., Prometheus Radio Project, 652 F.3d at 453.

Essentially everyone in the United States will be affected by the SAVE Plan—per capita,

the plan costs more than $1,000 for each person in the country. No agency can impose such

extraordinary costs on hundreds of millions of people without Congress’s approval, let alone

with just 30 days for comments. And, unsurprisingly, the Department has not identified any

case upholding a rule of equivalent scope, complexity, or cost for which only a 30-day

comment period was provided. This is structural error that dooms the entire SAVE Plan

and must not be allowed to become a fixture of the administrative process.

II.

This Application Underscores the Importance of the Amici States’ Application.

For reasons explained by Respondents and set forth above, the federal government’s

application does not undermine the Eighth Circuit’s injunction. What it does do, however,

is underscore the significance of the Amici States’ application in at least three respects:

(i) the federal government’s (misguided) argument that Respondents lack standing to

challenge the SAVE Plan’s payment-threshold provisions ignores that the Amici States

have already secured a nationwide injunction against those provisions; (ii) the federal

government’s attacks on Respondents’ standing makes the District of Kansas’s factual

finding—based on uncontroverted evidence—that the Amici States have suffered an injury

all the more significant; and (iii) the Eighth Circuit’s injunction dooms the Department’s

balance-of-harm arguments with respect to the Alaska injunction.

A. The Alaska Injunction covers the provisions addressed in this application.

A central theme of the federal government’s application (at 19-22) is that Respondents

have standing to challenge the SAVE Plan’s loan-forgiveness provisions that accelerate

forgiveness by shortening the timeline from 20 years to 103—which remain stayed by the

Eastern District of Missouri’s injunction—but not to challenge the SAVE Plan’s paymentthreshold provisions, viz., (i) its redefinition of what constitutes “discretionary” income as

anything above 225% of the federal poverty line (up from 150%), and (ii) its revised cap that

decreases monthly payments from 10% of discretionary income to 5%. As Respondents

explain, such arguments are incorrect. They also run headlong into the Alaska injunction.

Before the Court are two coalitions of States that challenged the same Final Rule,

resulting in preliminary injunctions from two district courts on the same day. Yet the

injunctions were different. As the Amici States’ application explains (at 1, 10, 30 n.8), both

the District of Kansas and the Eastern District of Missouri entered injunctions on June 24,

2024, that enjoined different portions of the SAVE Plan. The Eastern District of Missouri’s

injunction enjoined the SAVE Plan’s loan-forgiveness provisions, while the Alaska

injunction enjoined the same, along with its payment-threshold provisions, albeit only as

applied after July 1, 2024. See U.S.Appx.4a; AK.Appx.045a.4 Together, the injunctions

Connected to this provision is the SAVE Plan’s rule that loans do not accrue interest

while borrowers pay nominal, if not zero, dollars to the principal. U.S.Appx.17a.

The federal government continues to insist (at 14-15) that the District of Kansas only

enjoined the SAVE Plan’s “payment-calculation provision”—in other words, the plan’s

revised cap on discretionary income from 10% to 5%. As explained in the Amici States’ reply

brief, the federal government’s crabbed reading of the Alaska injunction would set that

injunction at war with itself. Regardless, the Amici States have cross-appealed; accordingly,

if the Court were to grant certiorari before judgment out of the Tenth Circuit, the entire

dispute would be before the Court. Cf. U.S. App. at 39 n.7 (agreeing that if the Court grants

enjoin essentially every aspect and every application of the SAVE Plan.

The two district courts also found standing for similar but different reasons. Both sets

of States argued that the SAVE Plan causes pocketbook injuries because of the loss of

servicing fees and interest income. The Eastern District of Missouri, however, focused on

servicing fees because the case before it involved the identical party, and nearly identical

theory, that this Court accepted in Nebraska. See U.S.Appx.6a. The District of Kansas, by

contrast, focused on lost-interest revenue given uncontroverted evidence that Alaska would

lose $100,000 from the SAVE Plan’s implementation. AK.Appx.070a.

These cases’ paths diverged further on appeal. The Tenth Circuit stayed the Alaska

injunction in an unreasoned order. AK.Appx.001a. After the Tenth Circuit’s stay order, the

sole reason the Department remained unable to give away billions of dollars was the

Eastern District of Missouri’s injunction. Reasoning that only the “forgiveness-ofprincipal” provisions were enjoined by that injunction, however, the Department continued

forgiving loans by setting “payment-threshold provisions” that resulted in $0 payments.

U.S.Appx.4a. Missouri requested emergency relief from the Eighth Circuit because such

conduct violated the district court’s order to cease implementing any provisions of the Final

Rule “that permit loan forgiveness.” U.S.Appx.75a. The Eighth Circuit administratively

stayed the rule on July 18, 2024, U.S.Appx.11a, and then on August 9, 2024, enjoined the

Department “from any further forgiveness of principal or interest, from not charging

certiorari before judgment, it could address both the arguments in the federal

government’s appeal to the Eighth Circuit and those in Respondents’ cross appeal, and so

“consider all of the relevant provisions of the rule on the merits”).

borrowers accrued interest, and from further implementing SAVE’s payment-threshold

provisions” with respect to “any borrower whose loans” are subject to the plan,

U.S.Appx.9a.

That injunction pending appeal thus prevents implementation not only of the

provisions covered by the Eastern District of Missouri’s injunction, but also the Alaska

injunction. The Eighth Circuit did so to prevent the Department from circumventing the

Eastern District of Missouri’s injunction “through a new so-called ‘hybrid rule’” that

“combines the parts of SAVE that the district court did not enjoin, such as the paymentthreshold provisions”—covered by the Alaska injunction—“and nonaccrual of interest,

with the forgiveness-of-principal provisions in REPAYE,” which is the plan that existed

before the Department replaced it with the Final Rule at issue here. U.S.Appx.4a.

In its application, the federal government seeks to leverage the fact that the

Eastern District of Missouri’s injunction is limited to the SAVE Plan’s forgiveness

provisions to argue that Respondents cannot challenge the SAVE Plan’s paymentthreshold provisions, which, it says, are not tied to Missouri’s fee-based standing. The

application thus urges the Court to allow the Department to implement the SAVE Plan’s

payment-threshold provisions—which, as the Amici States’ application explains, are

responsible for the lion’s share of the plan’s $475 billion price tag.

The federal government’s argument fails because, as Respondents observe, the

Department cannot use the SAVE Plan’s payment-threshold provisions to do what the

Eastern District of Missouri’s injunction forbids: loan forgiveness. That the loan

forgiveness provisions result in de jure forgiveness while the payment-thresholds

provisions result in de facto forgiveness is a difference in the form, not the substance, of

Respondents’ injuries.

Even if the federal government were right, however, it would not follow that the

Department can implement the SAVE Plan’s payment-threshold provisions. Those

provisions are separately barred by the Alaska injunction, and the Amici States have

applied to the Court to vacate the Tenth Circuit’s unreasoned and erroneous stay. The

Amici States’ standing is not limited to the SAVE Plan’s forgiveness provisions.

The application’s argument is thus too clever by half. The federal government asks the

Court to deny the Amici States’ application respecting the payment-thresholds provisions,

while also urging the Court to vacate the Eighth Circuit’s injunction because Respondents

supposedly lack standing to challenge those provisions. The application is wrong because

Missouri plainly has standing. And if it were otherwise, then it would be especially

important for the Court to grant the Amici States’ application.

B. The Amici States have standing to challenge the entire SAVE Plan.

The flaw in the federal government’s “heads-I-win-tails-you-lose” theory is even more

apparent because the Kansas district court found that the Amici States have standing to

challenge the entire SAVE Plan—both its forgiveness and payment-thresholds provisions.

The federal government’s arguments against the Amici States’ standing confront two

insurmountable obstacles: (i) the clear-error standard of review, and (ii) their choice to

leave the States’ standing evidence uncontroverted by failing to submit even a scintilla of

evidence themselves. As the district court explained, “[w]ithout any contradictory evidence,

defendants have given [the court] no facts to reach a different conclusion” than that the

SAVE Plan harms the States. AK.Appx.070a. And the Department has never meaningfully

contested the district court’s factual finding that “the states’ public instrumentalities—and

therefore the states—will suffer harm in the form of reduced interest income.”

AK.Appx.071a. For good reason: Alaska offered unrebutted testimony estimating that loss

at $100,000 over the next two years and ample reasoning behind how that number was

formulated. AK.Appx.095a-96a. Without any evidence supporting the Department’s

position, a court cannot reach a “definite and firm conviction that a mistake has been

committed” to find clear error. Concrete Pipe & Prods. of Cal., Inc. v. Constr. Laborers

Pension Tr. for S. Cal., 508 U.S. 602, 622 (1993) (quotation omitted).

Especially important here, the Amici States’ standing is not limited to loan forgiveness.

As the district court found, the Alaska Student Loan Corporation, South Carolina State

Education Assistance Authority, and Texas Higher Education Coordinating Board will lose

interest income because of the SAVE Plan. AK.Appx.074a-75a. This is so because the plan

unlawfully provides benefits—including through its payment thresholds—that are not

available to borrowers who deal with state loan instrumentalities, and the Department

allows those borrowers to consolidate their loans with new federal loans. AK.Appx.060a.

Thus, although these state entities will receive their principal back, they will lose streams

of interest income, a classic pocketbook injury since at least the days of Hammurabi.

Furthermore, although the Amici States provided uncontroverted real-world evidence

of injury, nothing in Article III required them to do so. After all, the Amici States have

standing because they can “show an actual or imminent increase in competition,” which

“will almost certainly cause an injury in fact.” Am. Inst. of Certified Pub. Accts. v. IRS, 804

F.3d 1193, 1197 (D.C. Cir. 2015). The rule that competitors have standing is premised on

“basic economic logic.” Id. at 1198 (quotation omitted). And it amply supports standing here

because the States compete with the federal government in the market for student loans,

yet the SAVE Plan unlawfully makes federal loans far more attractive—to the tune of

hundreds of billions of dollars. In all events, as the district court explained, “Alaska’s ASLC

declaration … explains the SAVE Plan’s incentives for borrowers to consolidate and

testifies that the SAVE Plan already is causing borrowers to consolidate. And defendants

haven’t rebutted this evidence with any evidence of their own.” AK.Appx.071a.5

The Amici States’ injuries confirm that whatever the Court thinks of the federal

government’s standing theories about Missouri, the Amici States have standing with

respect to the entire SAVE Plan, including any provisions the Department hopes to

implement by challenging the Eighth Circuit’s injunction.

C. The Eighth Circuit’s injunction nullifies the federal government’s balanceof-harms arguments with respect to the Alaska injunction.

The federal government’s effort to vacate the Eighth Circuit’s injunction is relevant to

the Amici States’ application in a third respect, as well. Both before the Tenth Circuit and

in opposition to the States’ application to this Court, the Department argued that staying

the Alaska injunction is warranted because of administrative burdens and supposed

borrower confusion—arguments the federal government (at 5, 37) repeats here. Those

The Amici States have also raised additional standing theories, but the theory adopted

by the district court is sufficient, especially given clear error review and complete dearth of

contrary evidence.

arguments are no longer remotely plausible. The Eighth Circuit administratively stayed

the entire SAVE Plan over a month ago, meaning the Department has already been forced

to incur any administrative costs in connection with pausing the plan, and borrowers have

already been reminded (as if they needed it) that the SAVE Plan almost certainly violates

federal law and that—as with Nebraska—borrowers should not expect to benefit from it.6

The Eighth Circuit’s injunction further reinforces these points.

This changed landscape means the Court should at least vacate the Tenth Circuit’s

unreasoned stay whatever it does with respect to the federal government’s application. See,

e.g., NLRB v. Jones & Laughlin Steel Corp., 325 U.S. 838 (1945) (vacating in light of

“changed circumstances”). Even under the federal government’s mistaken view of the

breadth of the Alaska injunction, such an order would prevent the Department from

implementing the SAVE plan’s revised cap on discretionary income from 10% to 5%, which

the federal government admits (at 29 n.6) costs $59 billion even before accounting for

Nebraska (which makes it cost nearly $180 billion). In short, given the Eighth Circuit’s

injunction, the Department’s arguments for staying the Alaska injunction already no

longer work even under its own theory regarding the balance of harms.

III.

The Court Should Grant Certiorari Before Judgment for Both Applications.

Finally, the Eighth Circuit’s injunction confirms that the Court should grant certiorari

before judgment with respect to both applications. In fact, the Court should summarily

Regardless, the fact that the Secretary can send emails to borrowers nationwide

about this litigation, see Harless, supra, defeats any appeal to borrower confusion.

order that the Final Rule be vacated in light of Nebraska (which the Final Rule ignores)

and Ohio (an intervening decision the Final Rule cannot possibly satisfy).

The federal government purports to seek certainty for administrators and borrowers,

and there is nothing more certain than a decision from this Court summarily reiterating

that “‘[t]he basic and consequential tradeoffs’ inherent in a mass debt cancellation program

‘are ones that Congress would likely have intended for itself.’” Nebraska, 600 U.S. at 506

(quoting West Virginia, 597 U.S. at 730). There is precedent, moreover, for such strong

medicine. See, e.g., Am. Tradition P’ship, Inc. v. Bullock, 567 U.S. 516, 516 (2012) (per

curiam). Absent such an order, the Department’s attempted circumvention of the Eastern

District of Missouri’s injunction—not to mention the Court’s ruling in Nebraska—confirms

that the federal government will continue to try to give away nearly a half trillion dollars of

the public’s money without authority from Congress. Indeed, a third round of nationwide

mass-debt cancellation has already begun. See, e.g., App. at 8, Alaska, supra.

Alternatively, the Court should set both cases for briefing and oral argument, which

will ensure that every issue is presented with respect to the merits and standing, including

the District of Kansas’s square finding that the Amici States have standing to challenge

every aspect of the unlawful SAVE Plan.

CONCLUSION

The Court should deny the federal government’s application, grant certiorari before

judgment in this case and No. 24A11, summarily order vacatur of the SAVE Plan and its

Final Rule, or set both cases for briefing and oral argument. At a minimum, the Court

should vacate the Tenth Circuit’s stay given the federal government’s application.

Respectfully submitted.