Biden v. NebraskaBiden v. Nebraska
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
Title IV of the Higher Education Act of 1965 (Education Act) governs federal financial aid mechanisms, including student loans.
The issue presented in this case is whether the Secretary has authority under the Higher Education Relief Opportunities for Students Act of 2003 (HEROES Act) to depart from the existing provisions of the Education Act and establish a student loan forgiveness program that will cancel about $430 billion in debt principal and affect nearly all borrowers. Under the HEROES Act, the Secretary “may waive or modify any statutory or regulatory provision applicable to the student financial assistance programs under title IV of the [Education Act] as the Secretary deems necessary in connection with a war or other military operation or national emergency.”
In 2022, as the COVID–19 pandemic came to its end, the Secretary
Six States challenged the plan as exceeding the Secretary’s statutory authority. The Eighth Circuit issued a nationwide preliminary injunction, and this Court granted certiorari before judgment.
Held:
1. At least Missouri has standing to challenge the Secretary’s program. Article III requires a plaintiff to have suffered an injury in fact—a concrete and imminent harm to a legally protected interest, like property or money—that is fairly traceable to the challenged conduct and likely to be redressed by the lawsuit. Lujan v. Defenders of Wildlife, 504 U. S. 555, 560–561. Here, as the Government concedes, the Secretary’s plan would cost MOHELA, a nonprofit government corporation created by Missouri to participate in the student loan market, an estimated $44 million a year in fees. MOHELA is, by law and function, an instrumentality of Missouri: Labeled an “instrumentality” by the State, it was created by the State, is supervised by the State, and serves a public function. The harm to MOHELA in the performance of its public function is necessarily a direct injury to Missouri itself. The Court reached a similar conclusion 70 years ago in Arkansas v. Texas, 346 U. S. 368.
The Secretary emphasizes that, as a public corporation, MOHELA has a legal personality separate from the State. But such an instrumentality—created and supervised by the State to serve a public function—remains “(for many purposes at least) part of the Government itself.” Lebron v. National Railroad Passenger Corporation, 513 U. S. 374, 397. The Secretary also contends that because MOHELA can sue on its own behalf, it—not Missouri—must be the one to sue. But where a State has been harmed in carrying out its responsibilities, the fact that it chose to exercise its authority through a public corporation it created and controls does not bar the State from suing to remedy that harm itself. See Arkansas, 346 U. S. 368. With Article III satisfied, the Court need not consider the States’ other standing arguments. Pp. 7–12.
2. The HEROES Act allows the Secretary to “waive or modify” existing statutory or regulatory provisions applicable to financial assistance programs under the Education Act, but does not allow the Secretary to rewrite that statute to the extent of canceling $430 billion of student loan principal. Pp. 12–26.
(a) The text of the HEROES Act does not authorize the Secretary’s loan forgiveness program. The Secretary’s power under the Act to “modify” does not permit “basic and fundamental changes in the scheme” designed by Congress. MCI Telecommunications Corp. v. American Telephone & Telegraph Co., 512 U. S. 218, 225. Instead, “modify” carries “a connotation of increment or limitation,” and must be read to mean “to change moderately or in minor fashion.” Ibid. That is how the word is ordinarily used and defined, and the legal definition is no different.
The authority to “modify” statutes and regulations allows the Secretary to make modest adjustments and additions to existing provisions, not transform them. Prior to the COVID–19 pandemic, “modifications” issued under the Act were minor and had limited effect. But the “modifications” challenged here create a novel and fundamentally different loan forgiveness program. While Congress specified in the Education Act a few narrowly delineated situations that could qualify a borrower for loan discharge, the Secretary has extended such discharge to nearly every borrower in the country. It is “highly unlikely that Congress” authorized such a sweeping loan cancellation program “through such a subtle device as permission to ‘modify.’” Id., at 231.
The Secretary responds that the Act authorizes him to “waive” legal provisions as well as modify them—and that this additional term “grant[s] broader authority” than would “modify” alone. But the Secretary’s invocation of the waiver power here does not remotely resemble how it has been used on prior occasions, where it was simply used to nullify particular legal requirements. The Secretary next argues that the power to “waive or modify” is greater than the sum of its parts: Because waiver allows the Secretary “to eliminate legal obligations in their entirety,” the combination of “waive or modify” must allow him “to reduce them to any extent short of waiver” (even if the power to “modify” ordinarily does not stretch that far). But the challenged loan forgiveness program goes beyond even that. In essence, the Secretary has drafted a new section of the Education Act from scratch by “waiving” provisions root and branch and then filling the empty space with radically new text.
The Secretary also cites a procedural provision in the HEROES Act directing the Secretary to publish a notice in the Federal Register, “includ[ing] the terms and conditions to be applied in lieu of such statutory and regulatory provisions” as the Secretary has waived or modified.
In sum, the Secretary’s comprehensive debt cancellation plan is not a waiver because it augments and expands existing provisions dramatically. It is not a modification because it constitutes “effectively the introduction of a whole new regime.” MCI, 512 U. S., at 234. And it cannot be some combination of the two, because when the Secretary seeks to add to existing law, the fact that he has “waived” certain provisions does not give him a free pass to avoid the limits inherent in the power to “modify.” However broad the meaning of “waive or modify,” that language cannot authorize the kind of exhaustive rewriting of the statute that has taken place here. Pp. 13–18.
(b) The Secretary also appeals to congressional purpose, arguing that Congress intended “to grant substantial discretion to the Secretary to respond to unforeseen emergencies.” On this view, the unprecedented nature of the Secretary’s debt cancellation plan is justified by the pandemic’s unparalleled scope. But the question here is not whether something should be done; it is who has the authority to do it. As in the Court’s recent decision in West Virginia v. EPA, given the “ ‘history and the breadth of the authority’ ” asserted by the Executive and the “ ‘economic and political significance’ of that assertion,” the Court has “ ‘reason to hesitate before concluding that Congress’ meant to confer such authority.” 597 U. S. ___, ___ (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120, 159–160).
This case implicates many of the factors present in past cases raising similar separation of powers concerns. The Secretary has never previously claimed powers of this magnitude under the HEROES Act; “[n]o regulation premised on” the HEROES Act “has even begun to approach the size or scope” of the Secretary’s program. Alabama Assn. of Realtors v. Department of Health and Human Servs., 594 U. S. ___, ___ (per curiam). The “ ‘economic and political significance’ ” of the Secretary’s action is staggering. West Virginia, 597 U. S., at ___ (quoting Brown & Williamson, 529 U. S., at 160). And the Secretary’s assertion of administrative authority has “conveniently enabled [him] to enact a program” that Congress has chosen not to enact itself. West Virginia, 597 U. S., at ___. The Secretary argues that the principles explained in West Virginia and its predecessors should not apply to cases involving government benefits. But major questions cases “have arisen from all corners of the administrative state,” id., at ___, and this is not the first such case to arise in the context of government benefits. See King v. Burwell, 576 U. S. 473, 485.
All this leads the Court to conclude that “[t]he basic and consequential tradeoffs” inherent in a mass debt cancellation program “are ones that Congress would likely have intended for itself.” West Virginia, 597 U. S., at ___. In such circumstances, the Court has required the Secretary to “point to ‘clear congressional authorization’ ” to justify the challenged program. Id., at ___, ___ (quoting Utility Air Regulatory Group v. EPA, 573 U. S. 302, 324). And as explained, the HEROES Act provides no authorization for the Secretary’s plan when examined using the ordinary tools of statutory interpretation—let alone “clear congressional authorization” for such a program. Pp. 19–25.
Reversed and remanded.
ROBERTS, C. J., delivered the opinion of the Court, in which THOMAS, ALITO, GORSUCH, KAVANAUGH, and BARRETT, JJ., joined. BARRETT, J., filed a concurring opinion. KAGAN, J., filed a dissenting opinion, in which SOTOMAYOR and JACKSON, JJ., joined.
To ensure that Americans could keep up with increasing international competition, Congress authorized the first federal student loans in 1958—up to a total of $1,000 per student each year. National Defense Education Act of 1958, 72 Stat. 1584. Outstanding federal student loans now total $1.6 trillion extended to 43 million borrowers. Letter from Congressional Budget Office to Members of Congress, p. 3 (Sept. 26, 2022) (CBO Letter). Last year, the Secretary of Education established the first comprehensive student loan forgiveness program, invoking the Higher Education Relief Opportunities for Students Act of 2003 (HEROES Act) for authority to do so. The Secretary’s plan canceled roughly $430 billion of federal student loan balances, completely erasing the debts of 20 million borrowers and lowering the median amount owed by the other 23 million from $29,400 to $13,600. See
I
A
The Higher Education Act of 1965 (Education Act) was enacted to increase educational opportunities and “assist in making available the benefits of postsecondary education to eligible students . . . in institutions of higher education.”
The terms of federal loans are set by law, not the market, so they often come with benefits not offered by private lenders. Such benefits include deferment of any repayment until after graduation, loan qualification regardless of credit history, relatively low fixed interest rates, income-sensitive repayment plans, and—for undergraduate students with financial need—government payment of interest while the borrower is in school. Dept. of Ed., Federal Student Aid, Federal Versus Private Loans.
The Education Act specifies in detail the terms and conditions attached to federal loans, including applicable interest rates, loan fees, repayment plans, and consequences of default. See
Shortly after the September 11 terrorist attacks, Congress became concerned that borrowers affected by the crisis—particularly those who served in the military—would need additional assistance. As a result, it enacted the Higher Education Relief Opportunities for Students Act of 2001. That law provided the Secretary of Education, for a limited period of time, with “specific waiver authority to respond to conditions in the national emergency” caused by the September 11 attacks. 115 Stat. 2386. Rather than allow this grant of authority to expire by its terms at the end of September 2003, Congress passed the Higher Education Relief Opportunities for Students Act of 2003 (HEROES Act). 117 Stat. 904. That Act extended the coverage of the 2001 statute to include any war or national emergency—not just the September 11 attacks. By its terms, the Secretary “may waive or modify any statutory or regulatory provision applicable to the student financial assistance programs under title IV of the [Education Act] as the Secretary deems necessary in connection with a war or other military operation or national emergency.”
The Secretary may issue waivers or modifications only “as may be necessary to ensure” that “recipients of student financial assistance under title IV of the [Education Act] 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.”
Immediately following the passage of the Act in 2003, the Secretary issued two dozen waivers and modifications addressing a handful of specific issues.
Over a year and a half passed with no further action beyond keeping the repayment and interest suspensions in place. But in August 2022, a few weeks before President Biden stated that “the pandemic is over,” the Department of Education announced that it was once again issuing “waivers and modifications” under the Act—this time to reduce and eliminate student debts directly. See App. 257–259; Washington Post, Sept. 20, 2022, p. A3, col. 1. During the first year of the pandemic, the Department’s Office of General Counsel had issued a memorandum concluding that “the Secretary does not have statutory authority to provide blanket or mass cancellation, compromise, discharge, or forgiveness of student loan principal balances.”
The terms of the debt cancellation plan are straightforward: For borrowers with an adjusted gross income below $125,000 in either 2020 or 2021 who have eligible federal loans, the Department of Education will discharge the balance of those loans in an amount up to $10,000 per borrower.2
B
Six States moved for a preliminary injunction, claiming that the plan exceeded the Secretary’s statutory authority. The District Court held that none of the States had standing to challenge the plan and dismissed the suit. ___ F. Supp. 3d ___ (ED Mo. 2022). The States appealed, and the Eighth Circuit issued a nationwide preliminary injunction pending resolution of the appeal. The court concluded that Missouri likely had standing through the Missouri Higher Education Loan Authority (MOHELA or Authority), a public corporation that holds and services student loans. 52 F. 4th 1044 (2022). It further concluded that the State’s challenge raised “substantial” questions on the merits and that the equities favored maintaining the status quo pending further review. Id., at 1048 (internal quotation marks omitted).
With the plan on pause, the Secretary asked this Court to vacate the injunction or to grant certiorari before judgment, “to avoid prolonging this uncertainty for the millions of affected borrowers.” Application 4. We granted the petition and set the case for expedited argument. 598 U. S. ___ (2022).
II
Before addressing the legality of the Secretary’s program, we must first ensure that the States have standing to challenge it. Under Article III of the Constitution, a plaintiff needs a “personal stake” in the case. TransUnion LLC v. Ramirez, 594 U. S. ___, ___ (2021) (slip op., at 7). That is, the plaintiff must have suffered an injury in fact—a concrete and imminent harm to a legally protected interest, like property or money—that is fairly traceable to the challenged conduct and likely to be redressed by the lawsuit. Lujan v. Defenders of Wildlife, 504 U. S. 555, 560–561 (1992). If at least one plaintiff has standing, the suit may proceed. Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U. S. 47, 52, n. 2 (2006). Because we conclude that the Secretary’s plan harms MOHELA and thereby directly injures Missouri—conferring standing on that State—we need not consider the other theories of standing raised by the States.
Missouri created MOHELA as a nonprofit government corporation to participate in the student loan market.
Under the Secretary’s plan, roughly half of all federal borrowers would have their loans completely discharged. App. 119. MOHELA could no longer service those closed accounts, costing it, by Missouri’s estimate, $44 million a year in fees that it otherwise would have earned under its contract with the Department of Education. Brief for Respondents 16. This financial harm is an injury in fact directly traceable to the Secretary’s plan, as both the Government and the dissent concede. See Tr. of Oral Arg. 18; post, at 5 (KAGAN, J., dissenting).
The plan’s harm to MOHELA is also a harm to Missouri. MOHELA is a “public instrumentality” of the State.
The Authority is subject to the State’s supervision and control. Its board consists of two state officials and five members appointed by the Governor and approved by the Senate.
By law and function, MOHELA is an instrumentality of Missouri: It was created by the State to further a public purpose, is governed by state officials and state appointees, reports to the State, and may be dissolved by the State. The Secretary’s plan will cut MOHELA’s revenues, impairing its efforts to aid Missouri college students. This acknowledged harm to MOHELA in the performance of its public function is necessarily a direct injury to Missouri itself.
We came to a similar conclusion 70 years ago in Arkansas v. Texas, 346 U. S. 368 (1953). Arkansas sought to invoke our original jurisdiction in a suit against Texas, claiming that Texas had wrongfully interfered with a contract between the University of Arkansas and a Texas charity. Id., at 369. Texas argued that the suit could not proceed because the University did “not stand in the shoes of the State.” Id., at 370. The harm to the University, as Texas
We disagreed. We recognized that “Arkansas must, of course, represent an interest of her own and not merely that of her citizens or corporations.” Ibid. But we concluded that Arkansas was in fact seeking to protect its own interests because the University was “an official state instrumentality.” Ibid. The State had labeled the University “an instrument of the state in the performance of a governmental work.” Ibid. (internal quotation marks omitted). The University served a public purpose, acting as the State’s “agen[t] in the educational field.” Id., at 371. The University had been “created by the Arkansas legislature,” was “governed by a Board of Trustees appointed by the Governor with consent of the Senate,” and “report[ed] all of its expenditures to the legislature.” Id., at 370. In short, the University was an instrumentality of the State, and “any injury under the contract to the University [was] an injury to Arkansas.” Ibid. So too here. Because the Authority is part of Missouri, the State does not seek to “rely on injuries suffered by others.” Post, at 2 (opinion of KAGAN, J.). It aims to remedy its own.
The Secretary and the dissent assert that MOHELA’s injuries should not count as Missouri’s because MOHELA, as a public corporation, has a legal personality separate from the State. Every government corporation has such a distinct personality; it is a corporation, after all, “with the powers to hold and sell property and to sue and be sued.” First Nat. City Bank v. Banco Para el Comercio Exterior de Cuba, 462 U. S. 611, 624 (1983). Yet such an instrumentality—created and operated to fulfill a public function—nonetheless remains “(for many purposes at least) part of the Government itself.” Lebron v. National Railroad Passenger Corporation, 513 U. S. 374, 397 (1995).
In Lebron, Amtrak was sued for refusing to display a political advertisement on a billboard at one of its stations.
We reiterated the point in Department of Transportation v. Association of American Railroads, 575 U. S. 43 (2015). There, railroads argued that giving Amtrak regulatory power was an unconstitutional delegation of government authority to a private entity. Id., at 49–50. We rejected that contention, noting that “Amtrak was created by the Government, is controlled by the Government, and operates for the Government’s benefit.” Id., at 53. It was therefore acting “as a governmental entity” in exercising that regulatory power. Id., at 54.
That principle holds true here. The Secretary and the dissent contend that because MOHELA can sue on its own behalf, it—not Missouri—must be the one to sue. But in Arkansas, 346 U. S. 368, the University of Arkansas could have asserted its rights under the contract on its own. The University’s governing statute made it “a body politic and corporate,” with “all the powers of a corporate body,” Ark.
The Secretary’s plan harms MOHELA in the performance of its public function and so directly harms the State that created and controls MOHELA. Missouri thus has suffered an injury in fact sufficient to give it standing to challenge the Secretary’s plan. With Article III satisfied, we turn to the merits.
III
The Secretary asserts that the HEROES Act grants him the authority to cancel $430 billion of student loan principal. It does not. We hold today that the Act allows the Secretary to “waive or modify” existing statutory or regulatory provisions applicable to financial assistance programs under the Education Act, not to rewrite that statute from the ground up.
A
The HEROES Act authorizes the Secretary to “waive or modify any statutory or regulatory provision applicable to the student financial assistance programs under title IV of the [Education Act] as the Secretary deems necessary in connection with a war or other military operation or national emergency.”
The Secretary’s previous invocations of the HEROES Act illustrate this point. Prior to the COVID–19 pandemic, “modifications” issued under the Act implemented only minor changes, most of which were procedural. Examples include reducing the number of tax forms borrowers are required to file, extending time periods in which borrowers must take certain actions, and allowing oral rather than written authorizations. See
Here, the Secretary purported to “modif[y] the provisions of ” two statutory sections and three related regulations
The Secretary’s new “modifications” of these provisions were not “moderate” or “minor.” Instead, they created a novel and fundamentally different loan forgiveness program. The new program vests authority in the Department of Education to discharge up to $10,000 for every borrower with income below $125,000 and up to $20,000 for every such borrower who has received a Pell Grant.
The Secretary’s plan has “modified” the cited provisions
The Secretary responds that the Act authorizes him to “waive” legal provisions as well as modify them—and that this additional term “grant[s] broader authority” than would “modify” alone. But the Secretary’s invocation of the waiver power here does not remotely resemble how it has been used on prior occasions. Previously, waiver under the HEROES Act was straightforward: the Secretary identified a particular legal requirement and waived it, making compliance no longer necessary. For instance, on one occasion the Secretary waived the requirement that a student provide a written request for a leave of absence. See
Here, the Secretary does not identify any provision that he is actually waiving.4 No specific provision of the Educa-
Yet even that expansive conception of waiver cannot justify the Secretary‘s plan, which does far more than relax existing legal requirements. The plan specifies particular sums to be forgiven and income-based eligibility requirements. The addition of these new and substantially different provisions cannot be said to be a “waiver” of the old in any meaningful sense. Recognizing this, the Secretary acknowledges that waiver alone is not enough; after waiving whatever “inapplicable” law would bar his debt cancellation plan, he says, he then “modif[ied] the provisions to bring [them] in line with this program.” Id., at 65. So in the end, the Secretary‘s plan relies on modifications all the way down. And as we have explained, the word “modify” simply cannot bear that load.
The Secretary and the dissent go on to argue that the power to “waive or modify” is greater than the sum of its
Lastly, the Secretary points to a procedural provision in the HEROES Act. The Act directs the Secretary to publish a notice in the Federal Register “includ[ing] the terms and conditions to be applied in lieu of such statutory and regulatory provisions” as the Secretary has waived or modified.
Section 1098bb(b)(2) is, however, “a wafer-thin reed on which to rest such sweeping power.” Alabama Assn. of Realtors v. Department of Health and Human Servs., 594 U. S. ___, ___ (2021) (per curiam) (slip op., at 7). The provision is no more than it appears to be: a humdrum reporting requirement. Rather than implicitly granting the Secretary authority to draft new substantive statutory provisions at will, it simply imposes the obligation to report any waivers and modifications he has made. Section 1098bb(b)(2) suggests that “waivers and modifications” includes addi-
The Secretary‘s comprehensive debt cancellation plan cannot fairly be called a waiver—it not only nullifies existing provisions, but augments and expands them dramatically. It cannot be mere modification, because it constitutes “effectively the introduction of a whole new regime.” MCI, 512 U. S., at 234. And it cannot be some combination of the two, because when the Secretary seeks to add to existing law, the fact that he has “waived” certain provisions does not give him a free pass to avoid the limits inherent in the power to “modify.” However broad the meaning of “waive or modify,” that language cannot authorize the kind of exhaustive rewriting of the statute that has taken place here.6
B
The dissent agrees. “Emergencies, after all, are emergencies,” it reasons, and “more serious measures” must be expected “in response to more serious problems.” Post, at 25, 28. The dissent‘s interpretation of the HEROES Act would grant unlimited power to the Secretary, not only to modify or waive certain provisions but to “fill the holes that action creates with new terms“—no matter how drastic those terms might be—and to “alter [provisions] to the extent [he] think[s] appropriate,” up to and including “the most substantial kind of change” imaginable. Post, at 16, 19–20. That is inconsistent with the statutory language and past practice under the statute.
The question here is not whether something should be done; it is who has the authority to do it. Our recent decision in West Virginia v. EPA involved similar concerns over the exercise of administrative power. 597 U. S. ___ (2022). That case involved the EPA‘s claim that the Clean Air Act authorized it to impose a nationwide cap on carbon dioxide
So too here, where the Secretary of Education claims the authority, on his own, to release 43 million borrowers from their obligations to repay $430 billion in student loans. The Secretary has never previously claimed powers of this magnitude under the HEROES Act. As we have already noted, past waivers and modifications issued under the Act have been extremely modest and narrow in scope. The Act has been used only once before to waive or modify a provision related to debt cancellation: In 2003, the Secretary waived the requirement that borrowers seeking loan forgiveness under the Education Act‘s public service discharge provisions “perform uninterrupted, otherwise qualifying service for a specified length of time (for example, one year) or for consecutive periods of time, such as 5 consecutive years.” 68 Fed. Reg. 69317. That waiver simply eased the requirement that service be uninterrupted to qualify for the public service loan forgiveness program. In sum, “[n]o regulation premised on” the HEROES Act “has even begun to approach the size or scope” of the Secretary‘s program. Alabama Assn., 594 U. S., at ___ (slip op., at 7).7
Under the Government‘s reading of the HEROES Act, the
The “‘economic and political significance‘” of the Secretary‘s action is staggering by any measure. West Virginia, 597 U. S., at ___ (slip op., at 17) (quoting Brown & Williamson, 529 U. S., at 160). Practically every student borrower benefits, regardless of circumstances. A budget model issued by the Wharton School of the University of Pennsylvania estimates that the program will cost taxpayers “between $469 billion and $519 billion,” depending on the total number of borrowers ultimately covered. App. 108. That is ten times the “economic impact” that we found significant in concluding that an eviction moratorium implemented by the Centers for Disease Control and Prevention triggered analysis under the major questions doctrine. Alabama Assn., 594 U. S., at ___ (slip op., at 6). It amounts to nearly one-third of the Government‘s $1.7 trillion in annual discretionary spending. Congressional Budget Office, The Federal Budget in Fiscal Year 2022. There is no serious dispute that the Secretary claims the authority to exercise control over “a significant portion of the American economy.” Utility Air Regulatory Group v. EPA, 573 U. S. 302, 324 (2014) (quoting Brown & Williamson, 529 U. S., at 159).
The dissent is correct that this is a case about one branch of government arrogating to itself power belonging to another. But it is the Executive seizing the power of the Legislature. The Secretary‘s assertion of administrative authority has “conveniently enabled [him] to enact a program”
The sharp debates generated by the Secretary‘s extraordinary program stand in stark contrast to the unanimity with which Congress passed the HEROES Act. The dissent asks us to “[i]magine asking the enacting Congress: Can the Secretary use his powers to give borrowers more relief when an emergency has inflicted greater harm?” Post, at 27–28. The dissent “can‘t believe” the answer would be no. Post, at 28. But imagine instead asking the enacting Congress a more pertinent question: “Can the Secretary use his powers to abolish $430 billion in student loans, completely canceling loan balances for 20 million borrowers, as a pandemic winds down to its end?” We can‘t believe the answer would be yes. Congress did not unanimously pass the HEROES Act with such power in mind. “A decision of such magnitude and consequence” on a matter of “‘earnest and profound debate across the country‘” must “res[t] with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.” West Virginia, 597 U. S., at ___, ___ (slip op., at 28, 31) (quoting Gonzales v. Oregon, 546 U. S. 243, 267–268 (2006)). As then-Speaker of the House Nancy Pelosi explained:
“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 an act of Congress.” Press Conference, Office of the Speaker of the House (July 28, 2021).
Aside from reiterating its interpretation of the statute, the dissent offers little to rebut our conclusion that “indicators from our previous major questions cases are present” here. Post, at 15 (
The Secretary, for his part, acknowledges that West Virginia is the law. Brief for United States 47–48. But he objects that its principles apply only in cases concerning “agency action[s] involv[ing] the power to regulate, not the
This Court has never drawn the line the Secretary suggests—and for good reason. Among Congress‘s most important authorities is its control of the purse.
All this leads us to conclude that “[t]he basic and consequential tradeoffs” inherent in a mass debt cancellation
* * *
It has become a disturbing feature of some recent opinions to criticize the decisions with which they disagree as going beyond the proper role of the judiciary. Today, we have concluded that an instrumentality created by Missouri, governed by Missouri, and answerable to Missouri is indeed part of Missouri; that the words “waive or modify” do not mean “completely rewrite“; and that our precedent—old and new—requires that Congress speak clearly before a Department Secretary can unilaterally alter large sections of the American economy. We have employed the traditional tools of judicial decisionmaking in doing so. Reasonable minds may disagree with our analysis—in fact, at least three do. See post, p. ___ (
The judgment of the District Court for the Eastern District of Missouri is reversed, and the case is remanded for further proceedings consistent with this opinion. The Government‘s application to vacate the Eighth Circuit‘s injunction is denied as moot.
It is so ordered.
I join the Court‘s opinion in full. I write separately to address the States’ argument that, under the “major questions doctrine,” we can uphold the Secretary of Education‘s loan cancellation program only if he points to “‘clear congressional authorization‘” for it. West Virginia v. EPA, 597 U. S. ___, ___ (2022) (slip op., at 19). In this case, the Court applies the ordinary tools of statutory interpretation to conclude that the HEROES Act does not authorize the Secretary‘s plan. Ante, at 12–18. The major questions doctrine reinforces that conclusion but is not necessary to it. Ante, at 25.
Still, the parties have devoted significant attention to the major questions doctrine, and there is an ongoing debate about its source and status. I take seriously the charge that the doctrine is inconsistent with textualism. West Virginia, 597 U. S., at ___ (
Yet for the reasons that follow, I do not see the major
I
A
Substantive canons are rules of construction that advance values external to a statute.1 A. Barrett, Substantive Canons and Faithful Agency, 90 B. U. L. Rev. 109, 117 (2010) (Barrett). Some substantive canons, like the rule of lenity, play the modest role of breaking a tie between equally plausible interpretations of a statute. United States v. Santos, 553 U. S. 507, 514 (2008) (plurality opinion). Others are more aggressive—think of them as strong-form substantive canons. Unlike a tie-breaking rule, a strong-form canon counsels a court to strain statutory text to advance a particular value. Barrett 168. There are many such canons on the books, including constitutional avoidance, the clear-statement federalism rules, and the presumption against retroactivity. Id., at 138–145, 172–173. Such rules effectively impose a “clarity tax” on Congress by demanding that it speak unequivocally if it wants to accomplish certain ends. J. Manning, Clear Statement Rules and the Constitution, 110 Colum. L. Rev. 399, 403 (2010). This “clear statement” requirement means that the better interpretation of a statute will not necessarily prevail. E.g., Boechler v. Commissioner, 596 U. S. ___, ___ (2022) (slip op., at 6) (“[I]n this context, better is not enough“). Instead, if
While many strong-form canons have a long historical pedigree, they are “in significant tension with textualism” insofar as they instruct a court to adopt something other than the statute‘s most natural meaning. Barrett 123–124. The usual textualist enterprise involves “hear[ing] the words as they would sound in the mind of a skilled, objectively reasonable user of words.” F. Easterbrook, The Role of Original Intent in Statutory Construction, 11 Harv. J. L. & Pub. Pol‘y 59, 65 (1988). But a strong-form canon “load[s] the dice for or against a particular result” in order to serve a value that the judiciary has chosen to specially protect. A. Scalia, A Matter of Interpretation 27 (1997) (Scalia); see also Barrett 124, 168–169. Even if the judiciary‘s adoption of such canons can be reconciled with the Constitution,2 it is undeniable that they pose “a lot of trouble” for “the honest textualist.” Scalia 28.
B
While one could walk away from our major questions cases with this impression, I do not read them this way. No doubt, many of our cases express an expectation of “clear congressional authorization” to support sweeping agency action. See, e.g., West Virginia, 597 U. S., at ___ (slip op., at 19); Utility Air Regulatory Group v. EPA, 573 U. S. 302, 324 (2014); see also Alabama Assn. of Realtors v. Department of Health and Human Servs., 594 U. S. ___, ___ (2021) (per curiam) (slip op., at 6). But none requires “an ‘unequivocal declaration‘” from Congress authorizing the precise agency action under review, as our clear-statement cases do in their respective domains. See Financial Oversight and Management Bd. for P. R. v. Centro De Periodismo Investigativo, Inc., 598 U. S. ___, ___ (2023) (slip op., at 6). And none purports to depart from the best interpretation of the text—the hallmark of a true clear-statement rule.
So what work is the major questions doctrine doing in these cases? I will give you the long answer, but here is the short one: The doctrine serves as an interpretive tool reflecting “common sense as to the manner in which Congress is likely to delegate a policy decision of such economic and political magnitude to an administrative agency.” FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120, 133 (2000).
II
The major questions doctrine situates text in context, which is how textualists, like all interpreters, approach the task at hand. C. Nelson, What Is Textualism? 91 Va. L. Rev. 347, 348 (2005) (“[N]o ‘textualist’ favors isolating statutory language from its surrounding context“); Scalia 37 (“In textual interpretation, context is everything“). After all, the meaning of a word depends on the circumstances in which it is used. J. Manning, The Absurdity Doctrine, 116
Context is not found exclusively “‘within the four corners’ of a statute.” Id., at 2456. Background legal conventions, for instance, are part of the statute‘s context. F. Easterbrook, The Case of the Speluncean Explorers: Revisited, 112 Harv. L. Rev. 1876, 1913 (1999) (“Language takes meaning from its linguistic context,” as well as “historical and governmental contexts“). Thus, courts apply a presumption of mens rea to criminal statutes, Xiulu Ruan v. United States, 597 U. S. ___, ___ (2022) (slip op., at 5), and a presumption of equitable tolling to statutes of limitations, Irwin v. Department of Veterans Affairs, 498 U. S. 89, 95–96 (1990). It is also well established that “[w]here Congress employs a term of art obviously transplanted from another legal source, it brings the old soil with it.” George v. McDonough, 596 U. S. ___, ___ (2022) (slip op., at 5) (internal quotation marks omitted). I could go on. See, e.g., Lexmark Int‘l, Inc. v. Static Control Components, Inc., 572 U. S. 118, 132 (2014) (federal causes of action are construed “to incorporate a requirement of proximate causation“); Wisconsin Dept. of Revenue v. William Wrigley, Jr., Co., 505 U. S. 214, 231 (1992) (”de minimis non curat lex“). As it happens, “[t]he notion that some things ‘go without saying’ applies to legislation just as it does to everyday life.” Bond v. United States, 572 U. S. 844, 857 (2014).
Context also includes common sense, which is another thing that “goes without saying.” Case reporters and casebooks brim with illustrations of why literalism—the antithesis of context-driven interpretation—falls short. Consider the classic example of a statute imposing criminal penalties on “‘whoever drew blood in the streets.‘” United States v. Kirby, 7 Wall. 482, 487 (1869). Read literally, the statute would cover a surgeon accessing a vein of a person in the street. But “common sense” counsels otherwise, ibid., be-
Why is any of this relevant to the major questions doctrine? Because context is also relevant to interpreting the scope of a delegation. Think about agency law, which is all about delegations. When an agent acts on behalf of a principal, she “has actual authority to take action designated or implied in the principal‘s manifestations to the agent . . . as the agent reasonably understands [those] manifestations.” Restatement (Third) of Agency §2.02(1) (2005). Whether an agent‘s understanding is reasonable depends on “[t]he context in which the principal and agent interact,” including their “[p]rior dealings,” industry “customs and usages,” and “the nature of the principal‘s business or the principal‘s personal situation.” Id., §2.02, Comment e (emphasis added). With that in mind, imagine that a grocer instructs a clerk to “go to the orchard and buy apples for the store.” Though this grant of apple-purchasing authority sounds unqualified, a reasonable clerk would know that there are limits. For example, if the grocer usually keeps 200 apples on hand, the clerk does not have actual authority to buy 1,000—the grocer would have spoken more directly if she meant to authorize such an out-of-the-ordinary purchase. A clerk who disregards context and stretches the words to their fullest will not have a job for long.
This is consistent with how we communicate conversationally. Consider a parent who hires a babysitter to watch her young children over the weekend. As she walks out the door, the parent hands the babysitter her credit card and says: “Make sure the kids have fun.” Emboldened, the
But what if there is more to the story? Perhaps there is obvious contextual evidence that the babysitter‘s jaunt was permissible—for example, maybe the parent left tickets to the amusement park on the counter. Other clues, though less obvious, can also demonstrate that the babysitter took a reasonable view of the parent‘s instruction. Perhaps the parent showed the babysitter where the suitcases are, in the event that she took the children somewhere overnight. Or maybe the parent mentioned that she had budgeted $2,000 for weekend entertainment. Indeed, some relevant points of context may not have been communicated by the parent at all. For instance, we might view the parent‘s statement differently if this babysitter had taken the children on such trips before or if the babysitter were a grandparent.
In my view, the major questions doctrine grows out of these same commonsense principles of communication. Just as we would expect a parent to give more than a general instruction if she intended to authorize a babysitter-led getaway, we also “expect Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.‘” Utility Air, 573 U. S., at 324. That clarity may come from specific words in the statute,
This expectation of clarity is rooted in the basic premise that Congress normally “intends to make major policy decisions itself, not leave those decisions to agencies.” United States Telecom Assn. v. FCC, 855 F. 3d 381, 419 (CADC 2017) (Kavanaugh, J., dissenting from denial of reh‘g en banc). Or, as Justice Breyer once observed, “Congress is more likely to have focused upon, and answered, major questions, while leaving interstitial matters [for agencies] to answer themselves in the course of a statute‘s daily administration.” S. Breyer, Judicial Review of Questions of Law and Policy, 38 Admin. L. Rev. 363, 370 (1986); see also A. Gluck & L. Bressman, Statutory Interpretation From the Inside—An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part I, 65 Stan. L. Rev. 901, 1003–1006 (2013). That makes eminent sense in light of our constitutional structure, which is itself part of the legal context framing any delegation. Because the Constitution vests Congress with “[a]ll legislative Powers,”
Crucially, treating the Constitution‘s structure as part of the context in which a delegation occurs is not the same as using a clear-statement rule to overenforce Article I‘s nondelegation principle (which, again, is the rationale behind the substantive-canon view of the major questions doctrine). My point is simply that in a system of separated powers, a reasonably informed interpreter would expect
Given these baseline assumptions, an interpreter should “typically greet” an agency‘s claim to “extravagant statutory power” with at least some “measure of skepticism.” Utility Air, 573 U. S., at 324. That skepticism is neither “made-up” nor “new.” Post, at 24, 29 (KAGAN, J., dissenting). On the contrary, it appears in a line of decisions spanning at least 40 years. E.g., King v. Burwell, 576 U. S. 473, 485–486 (2015); Gonzales v. Oregon, 546 U. S. 243, 267–268 (2006); Brown & Williamson, 529 U. S., at 159–160; Industrial Union Dept., AFL–CIO v. American Petroleum Institute, 448 U. S. 607, 645 (1980) (plurality opinion).3
Still, this skepticism does not mean that courts have an
Consider Brown & Williamson, in which we rejected the Food and Drug Administration‘s (FDA‘s) determination that tobacco products were within its regulatory purview. 529 U. S., at 131. The agency‘s assertion of authority—which depended on the argument that nicotine is a “‘drug‘” and that cigarettes and smokeless tobacco are “‘drug delivery devices‘“—would have been plausible if the relevant statutory text were read in a vacuum. Ibid. But a vacuum is no home for a textualist. Instead, we stressed that the “meaning” of a word or phrase “may only become evident when placed in context.” Id., at 132 (emphasis added). And the critical context in Brown & Williamson was tobacco‘s
We have also been “[s]keptical of mismatches” between broad “invocations of power by agencies” and relatively narrow “statutes that purport to delegate that power.” In re MCP No. 165, OSHA, Interim Final Rule: Covid–19 Vaccination and Testing, 20 F. 4th 264, 272 (CA6 2021) (Sutton, C. J., dissenting from denial of initial hearing en banc). Just as an instruction to “pick up dessert” is not permission to buy a four-tier wedding cake, Congress‘s use of a “subtle device” is not authorization for agency action of “enormous importance.” MCI Telecommunications Corp. v. American Telephone & Telegraph Co., 512 U. S. 218, 231 (1994); cf. Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 468 (2001) (Congress does not “hide elephants in mouseholes“). This principle explains why the Centers for Disease Control and Prevention‘s (CDC‘s) general authority to “‘prevent the . . . spread of communicable diseases‘” did not authorize a nationwide eviction moratorium. Alabama Assn. of Realtors, 594 U. S., at ___–___, ___ (slip op., at 2–3, 6). The statute, we observed, was a “wafer-thin reed” that could not support the assertion of “such sweeping power.” Id., at ___ (slip op., at 7). Likewise, in West Virginia, we held that a “little-used backwater” provision in the Clean Air Act could not justify an Environmental Protection Agency (EPA) rule that would “restructur[e] the Nation‘s overall mix of electricity generation.” 597 U. S., at ___, ___ (slip op., at 16, 26).
Another telltale sign that an agency may have transgressed its statutory authority is when it regulates outside
We have also pumped the brakes when “an agency claims to discover in a long-extant statute an unheralded power to regulate ‘a significant portion of the American economy.‘” Utility Air, 573 U. S., at 324. Of course, an agency‘s post-
If the major questions doctrine were a substantive canon, then the common thread in these cases would be that we “exchange[d] the most natural reading of a statute for a bearable one more protective of a judicially specified value.” Barrett 111. But by my lights, the Court arrived at the most plausible reading of the statute in these cases. To be sure, “[a]ll of these regulatory assertions had a colorable textual basis.” West Virginia, 597 U. S., at ___ (slip op., at 18). In each case, we could have “[p]ut on blinders” and confined ourselves to the four corners of the statute, and we might have reached a different outcome. Sykes v. United States, 564 U. S. 1, 43 (2011) (KAGAN, J., dissenting). Instead, we took “off those blinders,” “view[ed] the statute as a whole,” ibid., and considered context that would be important to a reasonable observer. With the full picture in
III
As for today‘s case: The Court surely could have “hi[t] the send button,” post, at 23 (KAGAN, J., dissenting), after the routine statutory analysis set out in Part III–A. But it is nothing new for a court to punctuate its conclusion with an additional point, and the major questions doctrine is a good one here. Ante, at 25, n. 9. It is obviously true that the Secretary‘s loan cancellation program has “vast ‘economic and political significance.‘” Utility Air, 573 U. S., at 324. That matters not because agencies are incapable of making highly consequential decisions, but rather because an initiative of this scope, cost, and political salience is not the type that Congress lightly delegates to an agency. And for the reasons given by the Court, the HEROES Act provides no indication that Congress empowered the Secretary to do anything of the sort. Ante, at 12–18, 25.
Granted, some context clues from past major questions cases are absent here—for example, this is not a case where the agency is operating entirely outside its usual domain. But the doctrine is not an on-off switch that flips when a critical mass of factors is present—again, it simply reflects “common sense as to the manner in which Congress is likely to delegate a policy decision of such economic and political magnitude.” Brown & Williamson, 529 U. S., at 133. Common sense tells us that as more indicators from our previous major questions cases are present, the less likely it is that Congress would have delegated the power to the agency without saying so more clearly.
Here, enough of those indicators are present to demonstrate that the Secretary has gone far “beyond what Congress could reasonably be understood to have granted” in
* * *
The major questions doctrine has an important role to play when courts review agency action of “vast ‘economic and political significance.‘” Utility Air, 573 U. S., at 324. But the doctrine should not be taken for more than it is—the familiar principle that we do not interpret a statute for all it is worth when a reasonable person would not read it that way.
JUSTICE KAGAN, with whom JUSTICE SOTOMAYOR and JUSTICE JACKSON join, dissenting.
In every respect, the Court today exceeds its proper, limited role in our Nation‘s governance.
Some 20 years ago, Congress enacted legislation, called the HEROES Act, authorizing the Secretary of Education to provide relief to student-loan borrowers when a national emergency struck. The Secretary‘s authority was bounded: He could do only what was “necessary” to alleviate the emergency‘s impact on affected borrowers’ ability to repay their student loans.
When COVID hit, two Secretaries serving two different
The Court‘s first overreach in this case is deciding it at all. Under Article III of the Constitution, a plaintiff must have standing to challenge a government action. And that requires a personal stake—an injury in fact. We do not allow plaintiffs to bring suit just because they oppose a policy. Neither do we allow plaintiffs to rely on injuries suffered by others. Those rules may sound technical, but they enforce “fundamental limits on federal judicial power.” Allen v. Wright, 468 U. S. 737, 750 (1984). They keep courts acting like courts. Or stated the other way around, they prevent courts from acting like this Court does today. The plaintiffs in this case are six States that have no personal stake in the Secretary‘s loan forgiveness plan. They are classic ideological plaintiffs: They think the plan a very bad idea, but they are no worse off because the Secretary differs. In giving those States a forum—in adjudicating their complaint—the Court forgets its proper role. The Court acts as though it is an arbiter of political and policy disputes, rather than of cases and controversies.
And the Court‘s role confusion persists when it takes up the merits. For years, this Court has insisted that the way
I
“No principle is more fundamental to the judiciary‘s proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.” Simon v. Eastern Ky. Welfare Rights Organization, 426 U. S. 26, 37 (1976). In our system, “[f]ederal courts do not possess a roving commission to publicly opine on every legal question.” TransUnion LLC v. Ramirez, 594 U. S. ___, ___ (2021) (slip op., at 8). Nor do they “exercise general legal oversight of the Legislative and
That is what the Court does today. The plaintiffs here are six States: Arkansas, Iowa, Kansas, Missouri, Nebraska, and South Carolina. They oppose the Secretary‘s loan cancellation plan on varied policy and legal grounds. But as everyone agrees, those objections are just general grievances; they do not show the particularized injury needed to bring suit. And the States have no straightforward way of making that showing—of explaining how they are harmed by a plan that reduces individual borrowers’ federal student-loan debt. So the States have thrown no fewer than four different theories of injury against the wall, hoping that a court anxious to get to the merits will say that one of them sticks. The most that can be said of the theory the majority selects, proffered solely by Missouri, is that it is less risible than the others. It still contravenes a bedrock principle of standing law—that a plaintiff cannot ride on someone else‘s injury. Missouri is doing just that in relying on injuries to the Missouri Higher Education Loan Authority (MOHELA), a legally and financially independent public corporation. And that means the Court, by deciding this case, exercises authority it does not have. It violates the Constitution.
Missouri‘s theory of standing, as accepted by the majority, goes as follows. MOHELA is a state-created corporation participating in the student-loan market. As part of that activity, it has contracted with the Department of Education to service federally held loans—essentially, to handle billing and collect payments for the Federal Government. Under that contract, MOHELA receives an administrative fee for each loan serviced. When a loan is canceled, MOHELA will not get a fee; so the Secretary‘s plan will cost MOHELA money. And if MOHELA is harmed, Missouri must be harmed, because the corporation is a “public instrumentality” and, as such, “part of Missouri‘s government.” Brief for Respondents 16–17; see ante, at 8–9.
Up to the last step, the theory is unexceptionable—except that it points to MOHELA as the proper plaintiff. Financial harm is a classic injury in fact. MOHELA plausibly alleges that it will suffer that harm as a result of the Secretary‘s plan. So MOHELA can sue the Secretary, as the Government readily concedes. See Tr. of Oral Arg. 18. But not even Missouri, and not even the majority, claims that MOHELA‘s revenue loss gets passed through to the State. As further discussed below, MOHELA is financially independent from Missouri—as corporations typically are, the better to insulate their creators from financial loss. See infra, at 6. So MOHELA‘s revenue decline—the injury in fact claimed to justify this suit—is not in fact Missouri‘s. The State‘s treasury will not be out one penny because of the Secretary‘s plan. The revenue loss allegedly grounding this case is MOHELA‘s alone.
Which leads to an obvious question: Where‘s MOHELA? The answer is: As far from this suit as it can manage. MOHELA could have brought this suit. It possesses the power under Missouri law to “sue and be sued” in its own name.
If all that makes you suspect that MOHELA is distinct from the State, you would be right. And that is so as a matter of law and financing alike. Yes, MOHELA is a creature of state statute, a public instrumentality established to serve a public function.
The Missouri Supreme Court itself recognized as much in addressing a near-carbon-copy state instrumentality. MOHEFA (note the one-letter difference) issues bonds to support various health and educational institutions in the State. Like MOHELA, MOHEFA is understood as a “public instrumentality” serving a “public function.” Menorah Medical Center v. Health and Ed. Facilities Auth., 584 S. W. 2d 73, 76 (Mo. 1979). And like MOHELA, MOHEFA has a board appointed by the Governor and sends annual reports to a state department. See
Under our usual standing rules, that separation would matter—indeed, would decide this case. A plaintiff, this Court has held time and again, cannot rest its claim to judicial relief on the “legal rights and interests” of third parties. Warth, 422 U. S., at 499. And MOHELA qualifies as such a party, for all the reasons just given. That MOHELA is publicly created makes not a whit of difference: When a “government instrumentalit[y]” is “established as [a] juridical entit[y] distinct and independent from [its] sovereign,” the law—including the law of standing—is supposed to treat it that way. Bancec, 462 U. S., at 626–627; see Sloan Shipyards Corp. v. United States Shipping Bd. Emergency Fleet Corporation, 258 U. S. 549, 567 (1922). So this case should have been open-and-shut. Missouri and MOHELA are legally, and also financially, “separate entities.” Menorah, 584 S. W. 2d, at 78. MOHELA is fully capable of representing its own interests, and always has done so before. The injury to MOHELA thus does not entitle Missouri—under our normal standing rules—to go to court.
And those normal rules are more than just rules: They are, as this case shows, guarantors of our constitutional order. The requirement that the proper party—the party actually affected—challenge an action ensures that courts do not overstep their proper bounds. See Clapper v. Amnesty Int‘l USA, 568 U. S. 398, 408–409 (2013) (“Relaxation of standing [rules] is directly related to the expansion of judicial power“). Without that requirement, courts become “forums for the ventilation of public grievances“—for settlement of ideological and political disputes. Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U. S. 464, 473 (1982). The kind of forum this Court has become today. Is there a person in America who thinks Missouri is here because it is worried about MOHELA‘s loss of loan-servicing fees? I would like to meet him. Missouri is here because it thinks the Secretary‘s loan cancellation plan makes for terrible, inequitable, wasteful policy. And so too for Arkansas, Iowa, Kansas, Nebraska, and South Carolina. And maybe all of them are right. But that question is not what this Court sits to decide. That question is “more appropriately addressed in the representative branches,” and by the broader public. Allen, 468 U. S., at 751. Our third-party standing rules, like the rest of our standing doctrine, exist to separate powers in that way—to send political issues to political institutions, and retain only legal controversies, brought by plaintiffs who have suffered real legal injury. If MOHELA had brought this suit, we would have had to resolve it, however
B
The majority does not over-expend itself in defending that action. It recites the State‘s assertion that a “harm to MOHELA is also a harm to Missouri” because the former is the latter‘s instrumentality. Ante, at 8. But in doing so, the majority barely addresses MOHELA‘s separate corporate identity, its financial independence, and its distinct legal rights. In other words, the majority glides swiftly over all the attributes of MOHELA ensuring that its economic losses (1) are not passed on to the State and (2) can be rectified (if there is legal wrong) without the State‘s help. The majority is left to argue from a couple of prior decisions and a single idea, the latter relating to the State‘s desire to “aid Missouri college students.” Ante, at 9. But the decisions do not stand for what the majority claims. And the idea collides with another core precept of standing law. All in all, the majority‘s justifications turn standing law from a pillar of a restrained judiciary into nothing more than “a lawyer‘s game.” Massachusetts v. EPA, 549 U. S. 497, 548 (2007) (ROBERTS, C. J., dissenting).
The majority mainly relies on Arkansas v. Texas, 346 U. S. 368 (1953), but that case shows only that not all public instrumentalities are the same. The Court there held that Arkansas could bring suit on behalf of a state university. But it did so because the school lacked the financial and legal separateness MOHELA has. Arkansas, we observed, “owns all the property used by the University.” Id., at 370. And the suit, if successful, would have enhanced that property: The litigation sought to stop Texas from interfering with a contract to build a medical facility on campus. For the same reason, the Court found that “any injury under
The majority‘s second case—Lebron v. National Railroad Passenger Corporation, 513 U. S. 374 (1995)—is yet further afield. The issue there was whether Amtrak, a public corporation similar to MOHELA, had to comply with the First Amendment. The Court held that it did, labeling Amtrak a state actor for that purpose. On the opposite view, we reasoned, a government could “evade the most solemn obligations imposed in the Constitution by simply resorting to the corporate form.” Id., at 397; see ibid. (noting that Plessy could then be “resurrected by the simple device” of creating a public corporation to run trains). But that did not mean Amtrak was equivalent to the Government for all purposes. Over and over, we cabined our holding that Amtrak was a state actor by adding a phrase like “for purposes of the First Amendment” or other constitutional rights. Id., at 400; see
The author of today‘s opinion once wrote that a 1970s-era standing decision “became emblematic” of “how utterly manipulable” this Court‘s standing law is “if not taken seriously as a matter of judicial self-restraint.” Massachusetts,
II
The majority finds no firmer ground when it reaches the merits. The statute Congress enacted gives the Secretary broad authority to respond to national emergencies. That authority kicks in only under exceptional conditions. But when it kicks in, the Secretary can take exceptional measures. He can “waive or modify any statutory or regulatory provision” applying to the student-loan program.
A
A bit of background first, to give a sense of where the HEROES Act came from. In 1991 and again in 2002, Congress authorized the Secretary to grant student-loan relief to borrowers affected by a specified war or emergency. The first statute came out of the Persian Gulf Conflict. It gave the Secretary power to “waive or modify any statutory or regulatory provision” relating to student-loan programs in order to assist “the men and women serving on active duty in connection with Operation Desert Storm.”
With those one-off statutes in its short-term memory, Congress decided there was a need for a broader and more durable emergency authorization. So in 2003, it passed the HEROES Act. Instead of specifying a particular crisis, that statute enables the Secretary to act “as [he] deems necessary” in connection with any military operation or “national
Before turning to the scope of that power, note the stringency of the triggering conditions. Putting aside military applications, the Secretary can act only when the President has declared a national emergency. See
But if those conditions are met, the Secretary‘s delegated authority is capacious. As in the prior statutes, the Secretary has the linked power to “waive or modify any statutory or regulatory provision” applying to the student-loan programs.
Before reviewing how that statutory scheme operated here, consider how it might work for a hypothetical emergency that the enacting Congress had in the front of its mind. As noted above, a precursor to the HEROES Act was a statute authorizing the Secretary to assist student-loan borrowers affected by September 11. See supra, at 14. The HEROES Act, as Congress designed it, would give him the identical power to address similar terrorist attacks in the future. So imagine the horrific. A terrorist organization sets off a dirty bomb in Chicago. Beyond causing deaths, the incident leads millions of residents (including many with student loans) to flee the city to escape the radiation. They must find new housing, probably new jobs. And still their student-loan bills are coming due every month. To prevent widespread loan delinquencies and defaults, the Secretary wants to discharge $10,000 for the class of affected borrowers. Is that legal? Of course it is; it is exactly what Congress provided for. The statutory preconditions
The HEROES Act applies to the COVID loan forgiveness program in just the same way. Of course, Congress did not know COVID was coming; and maybe it wasn‘t even thinking about pandemics generally. But that is immaterial, because Congress delegated broadly, for all national emergencies. It is true, too, that the Secretary‘s use of the HEROES Act delegation has proved politically controversial, in a way that assistance to terrorism victims presumably would not. But again, that fact is irrelevant to the lawfulness of the program. If the hypothetical plan just discussed is legal, so too is this real one. Once more, the statutory preconditions have been met. The President declared the COVID pandemic a “national emergency.”
How does the majority avoid this conclusion? By picking the statute apart, and addressing each segment of Congress‘s authorization as if it had nothing to do with the others. For the first several pages—really, the heart—of its analysis, the majority proceeds as though the statute contains only the word “modify.” See ante, at 13–15. It eventually gets around to the word “waive,” but similarly spends most of its time treating that word alone. See ante, at 15–16. Only when that discussion is over does the majority in
The majority‘s cardinal error is reading “modify” as if it were the only word in the statutory delegation. Taken alone, this Court once stated, the word connotes “increment” and means “to change moderately or in minor fashion.” MCI Telecommunications Corp. v. American Telephone & Telegraph Co., 512 U. S. 218, 225 (1994). But no sooner did the Court say that much than it noted the importance of “contextual indications.” Id., at 226; see Scalia & Garner 167 (“Context is a primary determinant of meaning“). And in the HEROES Act, the dominant piece of context is that “modify” does not stand alone. It is one part of a couplet: “waive or modify.” The first verb, as discussed above, means eliminate—usually the most substantial kind of change. See supra, at 15; accord, ante, at 16. So the question becomes: Would Congress have given the Secretary power to wholly eliminate a requirement, as well as to relax it just a little bit, but nothing in between? The majority says yes. But the answer is no, because Congress would not have written so insane a law. The phrase “waive or modify” instead says to the Secretary: “Feel free to get rid of a requirement or, short of that, to alter it to the extent
The majority fares no better in claiming that the phrase “waive or modify” somehow limits the Secretary‘s ability “to add to existing law.” Ante, at 18 (emphasis in original). The majority‘s explanation of that idea oscillates a fair bit. At times the majority tries to convey that “additions” as a class are somehow suspect. See ante, at 17–18 (looking askance at “add[ing] new terms,” “adding back in,” “filling the empty space,” “augment[ing],” and “draft[ing] new” language). But that is mistaken. Change often (usually?) involves or necessitates replacements. So when the Secretary uses his statutory power to remove some conditions on loan cancellation, he can under that same power replace them with others. The majority itself must ultimately concede that point. See ante, at 13, 17–18. So it falls back on arguing that the “additions” allowed cannot be “substantial[]” because the statute uses the word “modify.” Ante, at 16; see ante, at 17–18. But that just doubles down on the majority‘s most basic error: extracting “modify” from the “waive or modify” phrase in order to confine the Secretary to making minor changes. As just shown, the phrase as a whole says the opposite—tells the Secretary that he can make changes along a spectrum, from modest to substantial. See supra, at 19. And so he can make additions along that spectrum as well. In particular, if he entirely removes existing conditions on loan discharge, he can substitute new ones; he does not have to leave gaping holes.
Indeed, other language in the statute makes that substitution authority perfectly clear. As noted earlier, the statute refers expressly to “the terms and conditions to be applied in lieu of such [modified or waived] statutory and regulatory provisions.”
The majority‘s opposing construction makes the Act inconsequential. The Secretary emerges with no ability to respond to large-scale emergencies in commensurate ways. The creation of any “novel and fundamentally different loan forgiveness program” is off the table. Ante, at 14. So, for example, the Secretary could not cancel student loans held by victims of the hypothetical terrorist attack described above. See supra, at 16–17. That too would involve “the introduction of a whole new regime” by way of “draft[ing] new substantive” conditions for discharging loans. Ante, at 17–18. And under the majority‘s analysis, new loan forbearance policies are similarly out of bounds. When COVID struck, Secretary DeVos immediately suspended loan repayments and interest accrual for all federally held student loans. See ante, at 5. The majority claims it is not deciding whether that action was lawful. Ante, at 18, n. 5. Which is all well and good, except that under the majority‘s reasoning, how could it not be? The suspension too offered a significant new benefit, and to an even greater number of borrowers. (Indeed, for many borrowers, it was worth much more than the current plan‘s $10,000 discharge.) So the
That is not the statute Congress wrote. The HEROES Act was designed to deal with national emergencies—typically major in scope, often unpredictable in nature. It gave the Secretary discretionary authority to relieve borrowers of the adverse impacts of many possible crises—as “necessary” to ensure that those individuals are not “in a worse position financially” to make repayment.
B
The tell comes in the last part of the majority‘s opinion. When a court is confident in its interpretation of a statute‘s text, it spells out its reading and hits the send button. Not this Court, not today. This Court needs a whole other chapter to explain why it is striking down the Secretary‘s plan. And that chapter is not about the statute Congress passed and the President signed, in their representation of many millions of citizens. It instead expresses the Court‘s own “concerns over the exercise of administrative power.” Ante, at 19. Congress may have wanted the Secretary to have wide discretion during emergencies to offer relief to student-loan borrowers. Congress in fact drafted a statute saying as much. And the Secretary acted under that statute in a way that subjects the President he serves to political accountability—the judgment of voters. But none of that is enough. This Court objects to Congress‘s permitting the Secretary (and other agency officials) to answer so-called major questions. Or at least it objects when the answers given are not to the Court‘s satisfaction. So the Court puts its own heavyweight thumb on the scales. It insists that “[h]owever broad” Congress‘s delegation to the Secretary, it (the Court) will not allow him to use that general authorization to resolve important issues. The question, the majority helpfully tells us, is “who has the authority” to make such significant calls. Ibid. The answer, as is now becoming commonplace, is this Court. See, e.g., West Virginia, 597 U. S. ___; Alabama Assn. of Realtors v. Department of Health and Human Servs., 594 U. S. ___ (2021); see also Sackett v. EPA, 598 U. S. ___ (2023) (using a similar judicially manufactured tool to negate statutory text enabling regulation).
The majority‘s stance, as I explained last Term, prevents Congress from doing its policy-making job in the way it
And that is a major problem not just for governance, but for democracy too. Congress is of course a democratic institution; it responds, even if imperfectly, to the preferences of American voters. And agency officials, though not them
The HEROES Act is a delegation both purposive and clear. Recall that Congress enacted the statute after passing two similar laws responding to specific crises. See supra, at 14. Congress knew that national emergencies would continue to arise. And Congress decided that when they did, the Secretary should have the power to offer relief without waiting for another, incident-specific round of legislation. Emergencies, after all, are emergencies, where speed is of the essence. For similar reasons, Congress replicated its prior (two-time) choice to leave the scope and nature of the loan relief to the Secretary, so that he could respond to varied conditions. As the House Report noted, Congress provided “the authority to implement waivers” that were “not yet contemplated” but might become necessary to deal with “any unforeseen issues that may arise.”
The majority is therefore wrong to say that the “indicators from our previous major questions cases are present here.” Ante, at 23 (internal quotation marks omitted). Compare the HEROES Act to other statutes containing broad delegations that the same majority has found to raise major-questions problems. Last Term, for example, the majority thought the trouble with the Clean Power Plan lay in the EPA‘s use of a “long-extant” and “ancillary” provision addressed to other matters. West Virginia, 597 U. S., at ___ (slip op., at 20). Before that, the majority invalidated the CDC‘s eviction moratorium because the agency had asserted authority far outside its “particular domain.” Alabama Assn. of Realtors, 594 U. S., at ___ (slip op., at 6). I thought both those decisions wrong. But assume the opposite; there is, even on that view, nothing like those circumstances here. (Or, to quote the majority quoting me, those “case[s are] distinguishable from this one.” Ante, at 23.) In this case, the Secretary responsible for carrying out the student-loan programs forgave student loans in a national emergency under the core provision of a recently enacted statute empowering him to provide student-loan relief in national emergencies.3 Today‘s decision thus moves the
To justify this use of its heightened-specificity requirement, the majority relies largely on history: “[P]ast waivers and modifications,” the majority argues, “have been extremely modest.” Ante, at 20. But first, it depends what you think is “past.” One prior action, nowhere counted by the majority, is the suspension of loan payments and interest accrual begun in COVID‘s first days. That action cost the Federal Government over $100 billion, and benefited many more borrowers than the forgiveness plan at issue. See supra, at 21. And second, it‘s all relative. Past actions were more modest because the precipitating emergencies were more modest. (The COVID emergency generated, all told, over $5 trillion in Government relief spending.) In providing more significant relief for a more significant emergency—or call it unprecedented relief for an unprecedented emergency—the Secretary did what the HEROES Act contemplates. Imagine asking the enacting Congress: Can the Secretary use his powers to give borrowers more
Similarly unavailing is the majority‘s reliance on the controversy surrounding the program. Student-loan cancellation, the majority says, “raises questions that are personal and emotionally charged,” precipitating “profound debate across the country.” Ante, at 22. I have no quarrel with that description. Student-loan forgiveness, and responses to COVID generally, have joined the list of issues on which this Nation is divided. But that provides yet more reason for the Court to adhere to its properly limited role. There are two paths here. One is to respect the political branches’ judgments. On that path, the Court recognizes the breadth of Congress‘s delegation to the Secretary, and declines to interfere with his use of that granted authority. Maybe Congress was wrong to give the Secretary so much discretion; or maybe he, and the President he serves, did not make good use of it. But if so, there are political remedies—accountability for all the actors, up to the President, who the public thinks have made mistakes. So a political controversy is resolved by political means, as our Constitution requires. That is one path. Now here is the other, the one the Court takes. Wielding its judicially manufactured heightened-specificity requirement, the Court refuses to acknowledge the plain words of the HEROES Act. It declines to respect Congress‘s decision to give broad emergency powers to the Secretary. It strikes down his lawful use of that authority to provide student-loan assistance. It
III
From the first page to the last, today‘s opinion departs from the demands of judicial restraint. At the behest of a party that has suffered no injury, the majority decides a contested public policy issue properly belonging to the politically accountable branches and the people they represent. In saying so, and saying so strongly, I do not at all “disparage[]” those who disagree. Ante, at 26. The majority is right to make that point, as well as to say that “[r]easonable minds” are found on both sides of this case. Ante, at 25. And there is surely nothing personal in the dispute here. But Justices throughout history have raised the alarm when the Court has overreached—when it has “exceed[ed] its proper, limited role in our Nation‘s governance.” Supra, at 1. It would have been “disturbing,” and indeed damaging, if they had not. Ante, at 25. The same is true in our own day.
The majority‘s opinion begins by distorting standing doctrine to create a case fit for judicial resolution. But there is no such case here, by any ordinary measure. The Secretary‘s plan has not injured the plaintiff-States, however much they oppose it. And in that respect, Missouri is no different from any of the others. Missouri does not suffer any harm from a revenue loss to MOHELA, because the two entities are legally and financially independent. And MOHELA has chosen not to sue—which of course it could have. So no proper party is before the Court. A court acting like a court would have said as much and stopped.
The opinion ends by applying the Court‘s made-up major-
So in a case not a case, the majority overrides the combined judgment of the Legislative and Executive Branches, with the consequence of eliminating loan forgiveness for 43 million Americans. I respectfully dissent from that decision.