Biden v. Nebraska

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PRELIMINARY PRINT
Volume 600 U. S. Part 1
Pages 477–550
OFFICIAL REPORTS
OF
THE SUPREME COURT
June 30, 2023
Page Proof Pending Publication
REBECCA A. WOMELDORF
reporter of decisions
NOTICE: This preliminary print is subject to formal revision before
the bound volume is published. Users are requested to notify the Reporter
of Decisions, Supreme Court of the United States, Washington, D.C. 20543,
pio@supremecourt.gov, of any typographical or other formal errors.
OCTOBER TERM, 2022 477
Syllabus
BIDEN, PRESIDENT OF THE UNITED STATES,
et al. v. NEBRASKA et al.
certiorari before judgment to the united states
court of appeals for the eighth circuit
No. 22–506. Argued February 28, 2023—Decided June 30, 2023
Title IV of the Higher Education Act of 1965 (Education Act) governs
federal fnancial aid mechanisms, including student loans. 20 U. S. C.
§ 1070 (a). The Act authorizes the Secretary of Education to cancel or
reduce loans in certain limited circumstances. The Secretary may can-
cel a set amount of loans held by some public servants, see §§ 1078–10,
1087j, 1087ee. He may also forgive the loans of borrowers who have
died or become “permanently and totally disabled,” § 1087(a)(1); borrow-
ers who are bankrupt, § 1087(b); and borrowers whose schools falsely
certify them, close down, or fail to pay lenders, § 1087(c).
The issue presented in this case is whether the Secretary has author-
ity under the Higher Education Relief Opportunities for Students Act
of 2003 (HEROES Act) to depart from the existing provisions of the
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Education Act and establish a student loan forgiveness program that
will cancel about $430 billion in debt principal and affect nearly all bor-
rowers. Under the HEROES Act, the Secretary “may waive or modify
any statutory or regulatory provision applicable to the student fnancial
assistance programs under title IV of the [Education Act] as the Secre-
tary deems necessary in connection with a war or other military opera-
tion or national emergency.” § 1098bb(a)(1). As relevant here, the
Secretary may issue such waivers or modifcations only “as may be nec-
essary to ensure” that “recipients of student fnancial assistance under
title IV of the [Education Act affected by a national emergency] are
not placed in a worse position fnancially in relation to that fnancial as-
sistance because of [the national emergency].” §§ 1098bb(a)(2)(A),
1098ee(2)(C)–(D).
In 2022, a few weeks before President Biden stated that “the
[COVID–19] pandemic is over,” the Secretary invoked the HEROES
Act to issue “waivers and modifcations” reducing or eliminating the
federal student debt of most borrowers. Borrowers with eligible fed-
eral student loans who had an income below $125,000 in either 2020 or
2021 qualifed for a loan balance discharge of up to $10,000. Those who
previously received Pell Grants—a specifc type of federal student loan
based on fnancial need—qualifed for a discharge of up to $20,000.
478 BIDEN v. NEBRASKA
Syllabus
Six States challenged the plan as exceeding the Secretary's statutory
authority. The Eighth Circuit issued a nationwide preliminary injunc-
tion, and this Court granted certiorari before judgment.
Held:
1. At least Missouri has standing to challenge the Secretary's pro-
gram. 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 Wild-
life, 504 U. S. 555 , 560–561. Here, as the Government concedes, the
Secretary's plan would cost MOHELA, a nonproft government corpora-
tion 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 instru-
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mentality—created and supervised by the State to serve a public func-
tion—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 satisfed,
the Court need not consider the States' other standing arguments.
Pp. 489–494.
2. The HEROES Act allows the Secretary to “waive or modify” exist-
ing statutory or regulatory provisions applicable to fnancial 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. 494–507.
(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
Cite as: 600 U. S. 477 (2023) 479
Syllabus
be read to mean “to change moderately or in minor fashion.” Ibid.
That is how the word is ordinarily used and defned, and the legal def-
nition is no different.
The authority to “modify” statutes and regulations allows the Secre-
tary to make modest adjustments and additions to existing provisions,
not transform them. Prior to the COVID–19 pandemic, “modifcations”
issued under the Act were minor and had limited effect. But the “modi-
fcations” challenged here create a novel and fundamentally different
loan forgiveness program. While Congress specifed 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 Secre-
tary'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:
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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 “waiv-
ing” provisions root and branch and then flling 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, “in-
clud[ing] the terms and conditions to be applied in lieu of such statutory
and regulatory provisions” as the Secretary has waived or modifed.
§ 1098bb(b)(2). In the Government's view, that language authorizes
both “waiving and then putting [the Secretary's] own requirements
in”—a sort of “red penciling” of the existing law. But rather than im-
plicitly granting the Secretary authority to draft new substantive statu-
tory provisions at will, § 1098bb(b)(2) simply imposes the obligation to
report any waivers and modifcations he has made. The Secretary's
ability to add new terms “in lieu of ” the old is limited to his authority
to “modify” existing law. As with any other modifcation issued under
the Act, no new term or condition reported pursuant to § 1098bb(b)(2)
may distort the fundamental nature of the provision it alters.
480 BIDEN v. NEBRASKA
Syllabus
In sum, the Secretary's comprehensive debt cancellation plan is not a
waiver because it augments and expands existing provisions dramati-
cally. It is not a modifcation because it constitutes “effectively the in-
troduction 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 provi-
sions 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. 494–500.
(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 unprece-
dented nature of the Secretary's debt cancellation plan is justifed 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 signifcance' 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 & William-
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son 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 pre-
viously claimed powers of this magnitude under the HEROES Act; “no
regulation premised on” the HEROES Act “has even begun to approach
the size or scope” of the Secretary's program. Alabama Assn. of Real-
tors v. Department of Health and Human Servs., 594 U. S. –––, –––
(per curiam). The “ `economic and political signifcance' ” of the Secre-
tary'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 benefts. But major questions cases “have arisen from all
corners of the administrative state,” id., at –––, and this is not the frst
such case to arise in the context of government benefts. 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 Secre-
tary to “point to `clear congressional authorization' ” to justify the chal-
Cite as: 600 U. S. 477 (2023) 481
Syllabus
lenged 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. 500–506.
Reversed and remanded.
Roberts, C. J., delivered the opinion of the Court, in which Thomas,
Alito, Gorsuch, Kavanaugh, and Barrett, JJ., joined. Barrett, J.,
fled a concurring opinion, post, p. 507. Kagan, J., fled a dissenting opin-
ion, in which Sotomayor and Jackson, JJ., joined, post, p. 521.
Solicitor General Prelogar argued the cause for petition-
ers. With her on the briefs were Principal Deputy Assist-
ant Attorney General Boynton, Deputy Solicitor General
Fletcher, Vivek Sur i, Yaira Dubin, Michael S. Raab,
Thomas Pulham, and Brian Siegel.
James A. Campbell, Solicitor General of Nebraska, argued
the cause for respondents. With him on the brief were Mi-
chael T. Hilgers, Attorney General of Nebraska, and Chris-
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tian Edmonds, Assistant Solicitor General, Andrew Bailey,
Attorney General of Missouri, and Michael E. Talent, Dep-
uty Solicitor General, Tim Griffn, Attorney General of Ar-
kansas, Nicholas J. Bronni, Solicitor General, and Dylan L.
Jacobs, Deputy Solicitor General, Brenna Bird, Attorney
General of Iowa, and Samuel P. Langholz, Deputy Attorney
General, Kris Kobach, Attorney General of Kansas, andD-
wight Carswell, Deputy Solicitor General, Alan Wilson, At-
torney General of South Carolina, and J. Emory Smith, Jr.,
Deputy Solicitor General.*
*Briefs of amici curiae urging reversal were fled for the Americans for
Prosperity Foundation et al. by J. Marc Wheat, Michael Pepson, and Cyn-
thia Fleming Crawford; for the Empire Center for Public Policy, Inc.,
et al. by Misha Tseytlin and Timothy L. McHugh; for the Foundation for
Government Accountability by Stewart L. Whitson; for the Hamilton Lin-
coln Law Institute et al. by Theodore H. Frank and Curt A. Levey; for
the National Education Association by Alice O'Brien and Jeffrey W. Bur-
ritt; and for Jed Handelsman Shugerman by Brian H. Pandya. Briefs of
amici curiae urging vacatur were fled for ArchCity Defenders et al. by
Seth E. Mermin; for the Cato Institute et al. by Anastasia P. Boden and
482 BIDEN v. NEBRASKA
Opinion of the Court
Chief Justice Roberts delivered the opinion of the
Court.
To ensure that Americans could keep up with increasing
international competition, Congress authorized the frst fed-
Ilya Shapiro; for Six Veterans' Organizations by Boris Bershteyn; for Stu-
dent Loan Experts by Christopher J. Wright and Stephen W. Miller; for
Sen. Marsha Blackburn et al. by Steven A. Engel and Michael H. McGin-
ley; for Elisabeth DeVos et al. by Alexander Akerman; and for Michael
W. McConnell et al. by William R. Levi.
Briefs of amici curiae urging affrmance were fled for the State of Utah
et al. by Sean D. Reyes, Attorney General of Utah, and Melissa Holyoak,
Solicitor General, by Dave Yost, Attorney General of Ohio, Benjamin M.
Flowers, Solicitor General, and Sylvia May Mailman, Deputy Solicitor
General, and by the Attorneys General for their respective States as fol-
lows: Steve Marshall of Alabama, Treg R. Taylor of Alaska, Ashley Moody
of Florida, Christopher M. Carr of Georgia, Raúl Labrador of Idaho, Theo-
dore E. Rokita of Indiana, Jeff Landry of Louisiana, Lynn Fitch of Missis-
sippi, Austin Knudsen of Montana, John M. Formella of New Hampshire,
Gentner Drummond of Oklahoma, Jonathan Skrmetti of Tennessee, Ken
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Paxton of Texas, Patrick Morrisey of West Virginia, and Bridget Hill of
Wyoming; for the American Center for Law and Justice by Jay Alan Sek-
ulow, Stuart J. Roth, Colby M. May, Jordan A. Sekulow, and Laura B.
Hernandez; for Borrower Advocacy and Legal Aid Organizations by
Joshua Rovenger and Persis Yu; for Citizens United et al. by William J.
Olson, Jeremiah L. Morgan, Robert J. Olson, Michael Boos, and Daniel
H. Jorjani; for Legal Scholars by Jeffrey B. Dubner and Sean A. Lev; for
the Liberty Justice Center by Daniel R. Suhr; for Local Governments by
Jonathan B. Miller, Joshua A. Rosenthal, Atleen Kaur, Mark Griffn,
Arturo G. Michel, James D. Smiertka, Peter M. Bollinger, Leslie J. Gi-
rard, John P. Markovs, Diana P. Cortes, Sheena Hamilton, Lyndsey M.
Olson, and Ronald A. Hope; for Samuel L. Bray et al. by Melissa Arbus
Sherry; for Howard McKeon et al. by Caleb Kruckenberg; and for 128 U. S.
Representatives et al. by Jennifer L. Mascott and R. Trent McCotter.
Briefs of amici curiae were fled for the Commonwealth of Massachu-
setts et al. by Elizabeth N. Dewar, Acting Attorney General of Massachu-
setts, and Yael Shavit, Assistant Attorney General, and by the Attorneys
General for their respective jurisdictions as follows: Rob Bonta of Califor-
nia, Philip J. Weiser of Colorado, William Tong of Connecticut, Kathleen
Jennings of Delaware, Brian L. Schwalb of the District of Columbia, Anne
E. Lopez of Hawaii, Kwame Raoul of Illinois, Anthony G. Brown of Mary-
land, Dana Nessel of Michigan, Keith Ellison of Minnesota, Aaron D. Ford
of Nevada, Matthew J. Platkin of New Jersey, Raúl Torrez of New Mexico,
Cite as: 600 U. S. 477 (2023) 483
Opinion of the Court
eral 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 tril-
lion extended to 43 million borrowers. Letter from Con-
gressional Budget Offce to Members of Congress, p. 3
(Sept. 26, 2022) (CBO Letter). Last year, the Secretary of
Education established the frst 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 eras-
ing the debts of 20 million borrowers and lowering the me-
dian amount owed by the other 23 million from $29,400 to
$13,600. See ibid.; App. 243. Six States sued, arguing that
the HEROES Act does not authorize the loan cancellation
plan. We agree.
I
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A Publication
The Higher Education Act of 1965 (Education Act) was
enacted to increase educational opportunities and “assist in
Letitia James of New York, Joshua H. Stein of North Carolina, Ellen F.
Rosenblum of Oregon, Josh Shapiro of Pennsylvania, Peter F. Neronha
of Rhode Island, Charity R. Clark of Vermont, Robert W. Ferguson of
Washington, and Joshua L. Kaul of Wisconsin; for the America First Pol-
icy Institute by Craig W. Trainor and Rachel Jag; for the American Feder-
ation of Teachers et al. by Yelena Konanova, Faith E. Gay, and Max H.
Siegel; for the Atlantic Legal Foundation by Lawrence S. Ebner; for the
Buckeye Institute by David C. Tryon and Robert Alt; for the Chamber of
Commerce of the United States of America by Robert E. Dunn, Amy
Miller, and Jennifer B. Dickey; for the Landmark Legal Foundation by
Michael J. O'Neill, Matthew C. Forys, and Richard P. Hutchison; for the
Lawyers' Committee for Civil Rights Under Law et al. by Damon Hewitt,
Jon Greenbaum, David Hinojosa, and Genevieve Bonadies Torres; for the
NAACP by Andrew D. Silverman; for the New Civil Liberties Alliance
by Markham S. Chenoweth and Russell G. Ryan; for the Protect Democ-
racy Project by Justin Florence and Genevieve Nadeau; for George Miller
by Elizabeth B. Wydra and Brianne J. Gorod; and for Lawrence A. Stein
by Mr. Stein, pro se.
484 BIDEN v. NEBRASKA
Opinion of the Court
making available the benefts of postsecondary education to
eligible students . . . in institutions of higher education.” 20
U. S. C. § 1070 (a). To that end, Title IV of the Act restruc-
tured federal fnancial aid mechanisms and established three
types of federal student loans. Direct Loans are, as the
name suggests, made directly to students and funded by the
federal fsc; they constitute the bulk of the Federal Govern-
ment's student lending efforts. See § 1087a et seq. The
Government also administers Perkins Loans—government-
subsidized, low-interest loans made by schools to students
with signifcant fnancial need—and Federal Family Edu-
cation Loans, or FFELs—loans made by private lenders
and guaranteed by the Federal Government. See §§ 1071
et seq., 1087aa et seq. While FFELs and Perkins Loans are
no longer issued, many remain outstanding. §§ 1071(d),
1087aa(b).
The terms of federal loans are set by law, not the market,
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so they often come with benefts not offered by private lend-
ers. Such benefts include deferment of any repayment until
after graduation, loan qualifcation regardless of credit his-
tory, relatively low fxed interest rates, income-sensitive re-
payment plans, and—for undergraduate students with f-
nancial need—government payment of interest while the
borrower is in school. Dept. of Ed., Federal Student Aid,
Federal Versus Private Loans.
The Education Act specifes in detail the terms and condi-
tions attached to federal loans, including applicable interest
rates, loan fees, repayment plans, and consequences of de-
fault. See §§ 1077, 1080, 1087e, 1087dd. It also authorizes
the Secretary to cancel or reduce loans, but only in certain
limited circumstances and to a particular extent. Specif-
cally, the Secretary can cancel a set amount of loans held by
some public servants—including teachers, members of the
Armed Forces, Peace Corps volunteers, law enforcement and
corrections offcers, frefghters, nurses, and librarians—who
work in their professions for a minimum number of years.
Cite as: 600 U. S. 477 (2023) 485
Opinion of the Court
§§ 1078–10, 1087j, 1087ee. The Secretary can also forgive
the loans of borrowers who have died or been “permanently
and totally disabled,” such that they cannot “engage in any
substantial gainful activity.” § 1087(a)(1). Bankrupt bor-
rowers may have their loans forgiven. § 1087(b). And the
Secretary is directed to discharge loans for borrowers falsely
certifed by their schools, borrowers whose schools close
down, and borrowers whose schools fail to pay loan proceeds
they owe to lenders. § 1087(c).
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 Ed-
ucation Relief Opportunities for Students Act of 2001. That
law provided the Secretary of Education, for a limited period
of time, with “specifc waiver authority to respond to condi-
tions in the national emergency” caused by the Septem-
ber 11 attacks. 115 Stat. 2386 . Rather than allow this
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grant of authority to expire by its terms at the end of Sep-
tember 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 stat-
ute 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 appli-
cable to the student fnancial assistance programs under title
IV of the [Education Act] as the Secretary deems necessary
in connection with a war or other military operation or na-
tional emergency.” 20 U. S. C. § 1098bb(a)(1).1
1
Like its 2001 predecessor, the HEROES Act enjoyed virtually unani-
mous bipartisan support at the time of its enactment, passing by a 421-to-
1 vote in the House of Representatives and a unanimous voice vote in the
Senate. See 149 Cong. Rec. 7952–7953 (2003); id., at 20809; 147 Cong.
Rec. 20396 (2001); id., at 26292–26293. The single dissenting Representa-
tive later voiced his support for the Act, explaining that he “meant to vote
`yea.' ” 149 Cong. Rec. 8559 (statement of Rep. Miller).
486 BIDEN v. NEBRASKA
Opinion of the Court
The Secretary may issue waivers or modifcations only “as
may be necessary to ensure” that “recipients of student f-
nancial assistance under title IV of the [Education Act] who
are affected individuals are not placed in a worse position
fnancially in relation to that fnancial assistance because of
their status as affected individuals.” § 1098bb(a)(2)(A). An
“affected individual” is defned, in relevant part, as someone
who “resides or is employed in an area that is declared a
disaster area by any Federal, State, or local offcial in connec-
tion with a national emergency” or who “suffered direct eco-
nomic hardship as a direct result of a war or other military
operation or national emergency, as determined by the Sec-
retary.” §§ 1098ee(2)(C)–(D). And a “national emergency”
for the purposes of the Act is “a national emergency declared
by the President of the United States.” § 1098ee(4).
Immediately following the passage of the Act in 2003, the
Secretary issued two dozen waivers and modifcations ad-
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dressing a handful of specifc issues. 68 Fed. Reg. 69312–
69318. Among other changes, the Secretary waived the re-
quirement that “affected individuals” must “return or repay
an overpayment” of certain grant funds erroneously dis-
bursed by the Government, id., at 69314, and the require-
ment that public service work must be uninterrupted to
qualify an “affected individual” for loan cancellation, id., at
69317. Additional adjustments were made in 2012, with
similar limited effects. 77 Fed. Reg. 59311–59318.
But the Secretary took more signifcant action in response
to the COVID–19 pandemic. On March 13, 2020, the Presi-
dent declared the pandemic a national emergency. Presi-
dential Proclamation No. 9994, 85 Fed. Reg. 15337–15338
(2020). One week later, then-Secretary of Education Betsy
DeVos announced that she was suspending loan repayments
and interest accrual for all federally held student loans. See
Dept. of Ed., Breaking News: Testing Waivers and Student
Loan Relief (Mar. 20, 2020). The following week, Congress
enacted the Coronavirus Aid, Relief, and Economic Security
Cite as: 600 U. S. 477 (2023) 487
Opinion of the Court
Act, which required the Secretary to extend the suspensions
through the end of September 2020. 134 Stat. 404–405.
Before that extension expired, the President directed the
Secretary, “[i]n light of the national emergency,” to “effectu-
ate appropriate waivers of and modifcations to” the Educa-
tion Act to keep the suspensions in effect through the end of
the year. 85 Fed. Reg. 49585 . And a few months later, the
Secretary further extended the suspensions, broadened eligi-
bility for federal fnancial assistance, and waived certain
administrative requirements (to allow, for example, virtual
rather than on-site accreditation visits and to extend dead-
lines for fling reports). Id., at 79856–79863; 86 Fed. Reg.
5008–5009 (2021).
Over a year and a half passed with no further action be-
yond 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
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Education announced that it was once again issuing “waivers
and modifcations” under the Act—this time to reduce and
eliminate student debts directly. See App. 257–259; Wash-
ington Post, Sept. 20, 2022, p. A3, col. 1. During the frst
year of the pandemic, the Department's Offce of General
Counsel had issued a memorandum concluding that “the Sec-
retary does not have statutory authority to provide blanket
or mass cancellation, compromise, discharge, or forgiveness
of student loan principal balances.” Memorandum from
R. Rubinstein to B. DeVos, p. 8 (Jan. 12, 2021). After a change
in Presidential administrations and shortly before adoption
of the challenged policy, however, the Offce of General Coun-
sel “formally rescinded” its earlier legal memorandum and
issued a replacement reaching the opposite conclusion. 87
Fed. Reg. 52945 (2022). The new memorandum determined
that the HEROES Act “grants the Secretary authority that
could be used to effectuate a program of targeted loan can-
cellation directed at addressing the fnancial harms of the
COVID–19 pandemic.” Id., at 52944 . Upon receiving this
488 BIDEN v. NEBRASKA
Opinion of the Court
new opinion, the Secretary issued his proposal to cancel stu-
dent debt under the HEROES Act. App. 257–259. Two
months later, he published the required notice of his “waiv-
ers and modifcations” in the Federal Register. 87 Fed. Reg.
61512–61514.
The terms of the debt cancellation plan are straightfor-
ward: 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 bal-
ance of those loans in an amount up to $10,000 per borrower.2
Id., at 61514 (“modif[ying] the provisions of ” 20 U. S. C.
§§ 1087 , 1087dd(g); 34 CFR pt. 647, subpt. D (2022); 34 CFR
§§ 682.402 , 685.212). Borrowers who previously received
Pell Grants qualify for up to $20,000 in loan cancellation. 87
Fed. Reg. 61514 . Eligible loans include “Direct Loans,
FFEL loans held by the Department or subject to collection
by a guaranty agency, and Perkins Loans held by the De-
partment.” Ibid. The Department of Education estimates
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that about 43 million borrowers qualify for relief, and the
Congressional Budget Offce estimates that the plan will can-
cel about $430 billion in debt principal. See App. 119; CBO
Letter 3.
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. 636 F. Supp.
3d 991 (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 corpora-
2
A borrower fling “jointly or as a Head of Household, or as a qualifying
widow(er),” qualifes for loan cancellation with an adjusted gross income
lower than $250,000. 87 Fed. Reg. 61514 .
Cite as: 600 U. S. 477 (2023) 489
Opinion of the Court
tion 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 eq-
uities 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 af-
fected 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 frst ensure that the States have standing to chal-
lenge it. Under Article III of the Constitution, a plaintiff
needs a “personal stake” in the case. TransUnion LLC v.
Ramirez, 594 U. S. –––, ––– (2021). That is, the plaintiff
Page Proof Pending Publication
must have suffered an injury in fact—a concrete and immi-
nent 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 Secre-
tary'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 nonproft government
corporation to participate in the student loan market. Mo.
Rev. Stat. § 173.360 (2016). The Authority owns over $1 bil-
lion in FFELs. MOHELA, FY 2022 Financial Statement 9
(Financial Statement). It also services nearly $150 billion
worth of federal loans, having been hired by the Department
of Education to collect payments and provide customer serv-
ice to borrowers. Id., at 4, 8 . MOHELA receives an ad-
490 BIDEN v. NEBRASKA
Opinion of the Court
ministrative fee for each of the fve million federal accounts
it services, totaling $88.9 million in revenue last year alone.
Ibid.
Under the Secretary's plan, roughly half of all federal bor-
rowers would have their loans completely discharged. App.
119. MOHELA could no longer service those closed ac-
counts, costing it, by Missouri's estimate, $44 million a year
in fees that it otherwise would have earned under its con-
tract with the Department of Education. Brief for Re-
spondents 16. This fnancial 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 525 (Kagan, J., dissenting).
The plan's harm to MOHELA is also a harm to Missouri.
MOHELA is a “public instrumentality” of the State. Mo.
Rev. Stat. § 173.360 . Missouri established the Authority to
perform the “essential public function” of helping Missouri-
Page Proof Pending Publication
ans access student loans needed to pay for college. Ibid.;
see Todd v. Curators of University of Missouri, 347 Mo. 460,
464 , 147 S. W. 2d 1063, 1064 (1941) (“Our constitution recog-
nizes higher education as a governmental function.”). To
fulfll this public purpose, the Authority is empowered by the
State to invest in or fnance student loans, including by issu-
ing bonds. §§ 173.385(1)(6)–(7). It may also service loans
and collect “reasonable fees” for doing so. §§ 173.385(1)(12),
(18). Its profts help fund education in Missouri: MOHELA
has provided $230 million for development projects at Mis-
souri colleges and universities and almost $300 million in
grants and scholarships for Missouri students. Financial
Statement 10, 20.
The Authority is subject to the State's supervision and
control. Its board consists of two state offcials and fve
members appointed by the Governor and approved by the
Senate. § 173.360. The Governor can remove any board
member for cause. Ibid. MOHELA must provide annual
fnancial reports to the Missouri Department of Education,
Cite as: 600 U. S. 477 (2023) 491
Opinion of the Court
detailing its income, expenditures, and assets. § 173.445.
The Authority is therefore “directly answerable” to the
State. Casualty Reciprocal Exchange v. Missouri Employ-
ers Mut. Ins. Co., 956 S. W. 2d 249, 254 (Mo. 1997). The
State “set[s] the terms of its existence,” and only the State
“can abolish [MOHELA] and set the terms of its dissolution.”
Id., at 254–255.
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 offcials and state appointees,
reports to the State, and may be dissolved by the State.
The Secretary's plan will cut MOHELA's revenues, impair-
ing its efforts to aid Missouri college students. This ac-
knowledged 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
Page Proof Pending Publication
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 saw it, was
not a harm to Arkansas suffcient for the State to sue in its
own name.
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 inter-
ests because the University was “an offcial state instrumen-
tality.” Ibid. The State had labeled the University “an in-
strument of the state in the performance of a governmental
work.” Ibid. (internal quotation marks omitted). The Uni-
versity served a public purpose, acting as the State's “agen[t]
in the educational feld.” Id., at 371 . The University had
492 BIDEN v. NEBRASKA
Opinion of the Court
been “created by the Arkansas legislature,” was “governed
by a Board of Trustees appointed by the Governor with con-
sent 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 Mis-
souri, the State does not seek to “rely on injuries suffered by
others.” Post, at 522–523 (opinion of Kagan, J.). It aims
to remedy its own.
The Secretary and the dissent assert that MOHELA's in-
juries 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 dis-
tinct personality; it is a corporation, after all, “with the pow-
ers 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 instrumental-
Page Proof Pending Publication
ity—created and operated to fulfll a public function—none-
theless remains “(for many purposes at least) part of the
Government itself.” Lebron v. National Railroad Passen-
ger Corporation, 513 U. S. 374, 397 (1995).
In Lebron, Amtrak was sued for refusing to display a polit-
ical advertisement on a billboard at one of its stations. Id.,
at 376–377. Amtrak argued that it was not subject to the
First Amendment because it was a corporation separate
from the Federal Government. See id., at 392 . Congress
had even specifed in its authorizing statute that Amtrak was
not “an agency or establishment of the United States Gov-
ernment.” Id., at 391 (quoting 84 Stat. 1330 ). Despite this
disclaimer, we held that Amtrak remained subject to the
First Amendment because it functioned as an instrumental-
ity of the Federal Government, “created by a special statute,
explicitly for the furtherance of federal governmental goals”
of ensuring that the American public had access to passenger
trains. Lebron, 513 U. S., at 397 . Its board was appointed
by the President, and it had to submit annual reports to the
Cite as: 600 U. S. 477 (2023) 493
Opinion of the Court
President and Congress. Id., at 385–386. Having been “es-
tablished and organized under federal law for the very pur-
pose of pursuing federal governmental objectives, under the
direction and control of federal governmental appointees,”
Amtrak could not disclaim that it was “part of the Govern-
ment.” Id., at 398, 400.
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 au-
thority to a private entity. Id., at 49–50. We rejected that
contention, noting that “Amtrak was created by the Govern-
ment, is controlled by the Government, and operates for the
Government's beneft.” 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
Page Proof Pending Publication
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.
Stat. § 80–2804 (1887)—including the power to sue and be
sued on its own behalf, see HRR Arkansas, Inc. v. River
City Contractors, Inc., 350 Ark. 420, 427 , 87 S. W. 3d 232, 237
(2002); see, e. g., Board of Trustees, Univ. of Ark. v. Pulaski
County, 229 Ark. 370 , 315 S. W. 2d 879 (1958). We permitted
Arkansas to bring an original suit all the same. Where a
State has been harmed in carrying out its responsibilities,
the fact that it chose to exercise its authority through a pub-
lic corporation it created and controls does not bar the State
from suing to remedy that harm itself.3
3
The dissent, for all its attempts to cabin these precedents, cites no
precedents of its own addressing a State's standing to sue for a harm to
its instrumentality. The dissent offers only a state court case involving a
different public corporation, in which the Missouri Supreme Court said
494 BIDEN v. NEBRASKA
Opinion of the Court
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 suffcient to give it standing to challenge
the Secretary's plan. With Article III satisfed, 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 Secre-
tary to “waive or modify” existing statutory or regulatory
provisions applicable to fnancial 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
Page Proof Pending Publication
the student fnancial assistance programs under title IV of
the [Education Act] as the Secretary deems necessary in con-
nection with a war or other military operation or national
emergency.” 20 U. S. C. § 1098bb(a)(1). That power has
limits. To begin with, statutory permission to “modify”
does not authorize “basic and fundamental changes in the
scheme” designed by Congress. MCI Telecommunications
Corp. v. American Telephone & Telegraph Co., 512 U. S. 218,
225 (1994). Instead, that term carries “a connotation of in-
crement or limitation,” and must be read to mean “to change
moderately or in minor fashion.” Ibid. That is how the
word is ordinarily used. See, e. g., Webster's Third New In-
that the corporation was separate from the State for the purposes of a
state ban on “the lending of the credit of the state.” Menorah Medical
Center v. Health and Ed. Facilities Auth., 584 S. W. 2d 73, 78 (1979) (plu-
rality opinion). But as the dissent recognizes, a public corporation can
count as part of the State for some but not “other purposes.” Post, at
531, and n. 1. The Missouri Supreme Court said nothing about, and had
no reason to address, whether an injury to that public corporation was a
harm to the State.
Cite as: 600 U. S. 477 (2023) 495
Opinion of the Court
ternational Dictionary 1952 (2002) (defning “modify” as “to
make more temperate and less extreme,” “to limit or restrict
the meaning of,” or “to make minor changes in the form or
structure of [or] alter without transforming”). The legal
defnition is no different. Black's Law Dictionary 1203 (11th
ed. 2019) (giving the frst defnition of “modify” as “[t]o make
somewhat different; to make small changes to,” and the sec-
ond as “[t]o make more moderate or less sweeping”). The
authority to “modify” statutes and regulations allows the
Secretary to make modest adjustments and additions to ex-
isting provisions, not transform them.
The Secretary's previous invocations of the HEROES Act
illustrate this point. Prior to the COVID–19 pandemic,
“modifcations” 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
fle, extending time periods in which borrowers must take
certain actions, and allowing oral rather than written au-
Page Proof Pending Publication
thorizations. See 68 Fed. Reg. 69314–69316.
Here, the Secretary purported to “modif[y] the provisions
of ” two statutory sections and three related regulations gov-
erning student loans. 87 Fed. Reg. 61514 . The affected
statutory provisions granted the Secretary the power to
“discharge [a] borrower's liability,” or pay the remaining
principal on a loan, under certain narrowly prescribed cir-
cumstances. 20 U. S. C. §§ 1087 , 1087dd(g)(1). Those cir-
cumstances were limited to a borrower's death, disability, or
bankruptcy; a school's false certifcation of a borrower or fail-
ure to refund loan proceeds as required by law; and a bor-
rower's inability to complete an educational program due to
closure of the school. See §§ 1087(a)–(d), 1087dd(g). The
corresponding regulatory provisions detailed rules and pro-
cedures for such discharges. They also defned the terms of
the Government's public service loan forgiveness program
and provided for discharges when schools commit malfea-
sance. See 34 CFR §§ 682.402 , 685.212; 34 CFR pt. 674,
subpt. D.
496 BIDEN v. NEBRASKA
Opinion of the Court
The Secretary's new “modifcations” 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 Edu-
cation to discharge up to $10,000 for every borrower with
income below $125,000 and up to $20,000 for every such bor-
rower who has received a Pell Grant. 87 Fed. Reg. 61514 .
No prior limitation on loan forgiveness is left standing. In-
stead, every borrower within the specifed income cap auto-
matically qualifes for debt cancellation, no matter their cir-
cumstances. The Department of Education estimates that
the program will cover 98.5% of all borrowers. See Dept. of
Ed., White House Fact Sheet: The Biden Administration's
Plan for Student Debt Relief Could Beneft Tens of Millions
of Borrowers in All Fifty States (Sept. 20, 2022). From a
few narrowly delineated situations specifed by Congress,
the Secretary has expanded forgiveness to nearly every bor-
Page Proof Pending Publication
rower in the country.
The Secretary's plan has “modifed” the cited provisions
only in the same sense that “the French Revolution `modi-
fed' the status of the French nobility”—it has abolished
them and supplanted them with a new regime entirely.
MCI, 512 U. S., at 228 . Congress opted to make debt for-
giveness available only in a few particular exigent circum-
stances; the power to modify does not permit the Secretary
to “convert that approach into its opposite” by creating a
new program affecting 43 million Americans and $430 billion
in federal debt. Descamps v. United States, 570 U. S. 254,
274 (2013). Labeling the Secretary's plan a mere “modifca-
tion” does not lessen its effect, which is in essence to allow
the Secretary unfettered discretion to cancel student loans.
It is “highly unlikely that Congress” authorized such a
sweeping loan cancellation program “through such a subtle
device as permission to `modify.' ” MCI, 512 U. S., at 231 .
The Secretary responds that the Act authorizes him to
“waive” legal provisions as well as modify them—and that
Cite as: 600 U. S. 477 (2023) 497
Opinion of the Court
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 identifed
a particular legal requirement and waived it, making compli-
ance 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 77 Fed. Reg.
59314 . On another, he waived the regulatory provisions re-
quiring schools and guaranty agencies to attempt collection
of defaulted loans for the time period in which students were
affected individuals. See 68 Fed. Reg. 69316 .
Here, the Secretary does not identify any provision that
he is actually waiving.4 No specifc provision of the Educa-
tion Act establishes an obligation on the part of student bor-
rowers to pay back the Government. So as the Government
concedes, “waiver”—as used in the HEROES Act—cannot
Page Proof Pending Publication
refer to “waiv[ing] loan balances” or “waiving the obligation
to repay” on the part of a borrower. Tr. of Oral Arg. 9, 64.
Contrast 20 U. S. C. § 1091b(b)(2)(D) (allowing the Secretary
to “waive the amounts that students are required to return”
in specifed circumstances of overpayment by the Govern-
ment). Because the Secretary cannot waive a particular
provision or provisions to achieve the desired result, he is
forced to take a more circuitous approach, one that avoids
any need to show compliance with the statutory limitation
on his authority. He simply “waiv[es] the elements of the
discharge and cancellation provisions that are inapplicable in
this [debt cancellation] program that would limit eligibility
to other contexts.” Tr. of Oral Arg. 64–65.
4
While the Secretary's notice published in the Federal Register refers
to “waivers and modifcations” generally, see 87 Fed. Reg. 61512–61514,
and while two sentences use the somewhat ambiguous phrase “[t]his
waiver,” id., at 61514, the notice identifes no specifc legal provision as
having been “waived” by the Secretary.
498 BIDEN v. NEBRASKA
Opinion of the Court
Yet even that expansive conception of waiver cannot jus-
tify the Secretary's plan, which does far more than relax
existing legal requirements. The plan specifes particular
sums to be forgiven and income-based eligibility require-
ments. The addition of these new and substantially differ-
ent 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 modifcations 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
parts. Because waiver allows the Secretary “to eliminate
Page Proof Pending Publication
legal obligations in their entirety,” the argument runs, the
combination of “waive or modify” allows him “to reduce
them to any extent short of waiver”—even if the power to
“modify” ordinarily does not stretch that far. Reply Brief
16–17 (internal quotation marks omitted). But the Secre-
tary's program cannot be justifed by such sleight of hand.
The Secretary has not truly waived or modifed the provi-
sions in the Education Act authorizing specifc and limited
forgiveness of student loans. Those provisions remain
safely intact in the U. S. Code, where they continue to oper-
ate in full force. What the Secretary has actually done is
draft a new section of the Education Act from scratch by
“waiving” provisions root and branch and then flling the
empty space with radically new text.
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 regula-
tory provisions” as the Secretary has waived or modifed.
Cite as: 600 U. S. 477 (2023) 499
Opinion of the Court
20 U. S. C. § 1098bb(b)(2) (emphasis added). In the Secre-
tary's view, that language authorizes “both deleting and then
adding back in, waiving and then putting his own require-
ments in”—a sort of “red penciling” of the existing law. Tr.
of Oral Arg. 65; see also Reply Brief 17.
Section 1098bb(b)(2) is, however, “a wafer-thin reed on
which to rest such sweeping power.” Alabama Assn. of Re-
altors v. Department of Health and Human Servs., 594 U. S.
–––, ––– (2021) (per curiam). 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 modifcations he
has made. Section 1098bb(b)(2) suggests that “waivers and
modifcations” includes additions. The dissent accordingly
reads the statute as authorizing any degree of change or any
new addition, “from modest to substantial”—and nothing in
the dissent's analysis suggests stopping at “substantial.”
Page Proof Pending Publication
Post, at 540. Because the Secretary “does not have to leave
gaping holes” when he waives provisions, the argument runs,
it follows that any replacement terms the Secretary uses to
fll those holes must be lawful. Ibid. But the Secretary's
ability to add new terms “in lieu of ” the old is limited to
his authority to “modify” existing law. As with any other
modifcation issued under the Act, no new term or condition
reported pursuant to § 1098bb(b)(2) may distort the funda-
mental nature of the provision it alters.5
The Secretary's comprehensive debt cancellation plan can-
not fairly be called a waiver—it not only nullifes existing
provisions, but augments and expands them dramatically.
It cannot be mere modifcation, because it constitutes “effec-
5
The dissent asserts that our decision today will control any challenge
to the Secretary's temporary suspensions of loan repayments and interest
accrual. Post, at 541–542. We decide only the case before us. A chal-
lenge to the suspensions may involve different considerations with respect
to both standing and the merits.
500 BIDEN v. NEBRASKA
Opinion of the Court
tively 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 mod-
ify,” that language cannot authorize the kind of exhaustive
rewriting of the statute that has taken place here.6
B
In a fnal bid to elide the statutory text, the Secretary
appeals to congressional purpose. “The whole point of ” the
HEROES Act, the Government contends, “is to ensure that
in the face of a national emergency that is causing fnancial
harm to borrowers, the Secretary can do something.” Tr.
of Oral Arg. 55. And that “something” was left deliberately
vague because Congress intended “to grant substantial dis-
cretion to the Secretary to respond to unforeseen emergen-
Page Proof Pending Publication
cies.” Reply Brief 22, n. 3. So the unprecedented nature
of the Secretary's debt cancellation plan only “refects the
pandemic's unparalleled scope.” Brief for Petitioners 52
(Brief for United States).
The dissent agrees. “Emergencies, after all, are emer-
gencies,” it reasons, and “more serious measures” must be
expected “in response to more serious problems.” Post, at
545, 547. The dissent's interpretation of the HEROES Act
6
The States further contend that the Secretary's program violates the
requirement in the HEROES Act that any waivers or modifcations be
“necessary to ensure that . . . affected individuals are not placed in a worse
position fnancially in relation to” federal fnancial assistance. 20 U. S. C.
§ 1098bb(a)(2)(A); see Brief for Respondents 39–44. While our decision
does not rest upon that reasoning, we note that the Secretary faces a
daunting task in showing that cancellation of debt principal is “necessary
to ensure” that borrowers are not placed in “worse position[s] fnancially
in relation to” their loans, especially given the Government's prior deter-
mination that pausing interest accrual and loan repayments would achieve
that end.
Cite as: 600 U. S. 477 (2023) 501
Opinion of the Court
would grant unlimited power to the Secretary, not only to
modify or waive certain provisions but to “fll the holes that
action creates with new terms”—no matter how drastic
those terms might be—and to “alter [provisions] to the ex-
tent [he] think[s] appropriate,” up to and including “the most
substantial kind of change” imaginable. Post, at 536, 539.
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 deci-
sion 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
emissions. Given “the `history and the breadth of the au-
thority that [the agency] ha[d] asserted,' and the `economic
and political signifcance' of that assertion,” we found that
Page Proof Pending Publication
there was “ `reason to hesitate before concluding that Con-
gress' meant to confer such authority.” Id., at ––– (quoting
FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120 ,
159–160 (2000); frst alteration in original).
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 mag-
nitude under the HEROES Act. As we have already noted,
past waivers and modifcations 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 provi-
sions “perform uninterrupted, otherwise qualifying service
for a specifed 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 require-
502 BIDEN v. NEBRASKA
Opinion of the Court
ment that service be uninterrupted to qualify for the public
service loan forgiveness program. In sum, “no 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 –––.7
Under the Government's reading of the HEROES Act, the
Secretary would enjoy virtually unlimited power to rewrite
the Education Act. This would “effec[t] a `fundamental revi-
sion of the statute, changing it from [one sort of] scheme of
. . . regulation' into an entirely different kind,” West Vir-
ginia, 597 U. S., at ––– (quoting MCI, 512 U. S., at 231 )—
one in which the Secretary may unilaterally defne every as-
pect of federal student fnancial aid, provided he determines
that recipients have “suffered direct economic hardship as
a direct result of a . . . national emergency.” 20 U. S. C.
§ 1098ee(2)(D).
The “ `economic and political signifcance' ” of the Secre-
tary's action is staggering by any measure. West Virginia,
Page Proof Pending Publication
597 U. S., at ––– (quoting Brown & Williamson, 529 U. S., at
160 ). Practically every student borrower benefts, regard-
less of circumstances. A budget model issued by the Whar-
ton 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 “eco-
nomic impact” that we found signifcant in concluding that
an eviction moratorium implemented by the Centers for Dis-
ease Control and Prevention triggered analysis under the
7
The Secretary also cites a prior invocation of the HEROES Act waiv-
ing the requirement that borrowers must repay prior overpayments of
certain grant funds. See Brief for United States 41; 68 Fed. Reg. 69314 .
But Congress had already limited borrower liability in such cases to ex-
clude overpayments in amounts up to “50 percent of the total grant assist-
ance received by the student” for the period at issue, so the Secretary's
waiver had only a modest effect. 20 U. S. C. § 1091b(b)(2)(C)(i)(II). And
that waiver simply held the Government responsible for its own errors
when it had mistakenly disbursed undeserved grant funds.
Cite as: 600 U. S. 477 (2023) 503
Opinion of the Court
major questions doctrine. Alabama Assn., 594 U. S., at –––.
It amounts to nearly one-third of the Government's $1.7 tril-
lion in annual discretionary spending. Congressional Bud-
get Offce, The Federal Budget in Fiscal Year 2022. There
is no serious dispute that the Secretary claims the authority
to exercise control over “a signifcant portion of the Ameri-
can 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 an-
other. But it is the Executive seizing the power of the Leg-
islature. The Secretary's assertion of administrative au-
thority has “conveniently enabled [him] to enact a program”
that Congress has chosen not to enact itself. West Virginia,
597 U. S., at –––. Congress is not unaware of the challen-
ges facing student borrowers. “More than 80 student loan
forgiveness bills and other student loan legislation” were
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considered by Congress during its 116th session alone.
M. Kantrowitz, Year in Review: Student Loan Forgiveness
Legislation, Forbes, Dec. 24, 2020.8 And the discussion is
not confned to the halls of Congress. Student loan cancella-
tion “raises questions that are personal and emotionally
charged, hitting fundamental issues about the structure of
the economy.” J. Stein, Biden Student Debt Plan Fuels
Broader Debate Over Forgiving Borrowers, Washington
Post, Aug. 31, 2022.
The sharp debates generated by the Secretary's extraordi-
nary 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 Sec-
retary use his powers to give borrowers more relief when
8
Resolutions were also introduced in 2020 and 2021 “[c]alling on the
President . . . to take executive action to broadly cancel Federal student
loan debt.” See S. Res. 711, 116th Cong., 2d Sess. (2020); S. Res. 46, 117th
Cong., 1st Sess. (2021). Those resolutions failed to reach a vote.
504 BIDEN v. NEBRASKA
Opinion of the Court
an emergency has inficted greater harm?” Post, at 547.
The dissent “can't believe” the answer would be no. Ibid.
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 de-
bate 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 –––, –––
(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
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power. That has to be an act of Congress.” Press
Conference, Offce 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 521 (Barrett, J., concurring). The dissent insists
that “[s]tudent loans are in the Secretary's wheelhouse.”
Post, at 545 (opinion of Kagan, J.). But in light of the sweep-
ing and unprecedented impact of the Secretary's loan for-
giveness program, it would seem more accurate to describe
the program as being in the “wheelhouse” of the House and
Senate Committees on Appropriations. Rather than dis-
pute the extent of that impact, the dissent chooses to mount
a frontal assault on what it styles “the Court's made-up
major questions doctrine.” Post, at 549. But its attempt
to relitigate West Virginia is misplaced. As we explained
in that case, while the major questions “label” may be rela-
tively recent, it refers to “an identifable body of law that has
Cite as: 600 U. S. 477 (2023) 505
Opinion of the Court
developed over a series of signifcant cases” spanning dec-
ades. West Virginia, 597 U. S., at –––. At any rate, “the
issue now is not whether [West Virginia is] correct. The
question is whether that case is distinguishable from this
one. And it is not.” Collins v. Yellen, 594 U. S. –––, –––
(2021) (Kagan, J., concurring in part and concurring in
judgment).
The Secretary, for his part, acknowledges that West Vir-
ginia 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
provision of government benefts.” Reply Brief 21. In the
Government's view, “there are fewer reasons to be con-
cerned” in cases involving benefts, which do not impose
“profound burdens” on individual rights or cause “regulatory
effects that might prompt a note of caution in other contexts
involving exercises of emergency powers. ” Tr. of Oral
Arg. 61.
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This Court has never drawn the line the Secretary sug-
gests—and for good reason. Among Congress's most impor-
tant authorities is its control of the purse. U. S. Const., Art.
I, § 9, cl. 7; see also Offce of Personnel Management v. Rich-
mond, 496 U. S. 414, 427 (1990) (the Appropriations Clause
is “a most useful and salutary check upon profusion and ex-
travagance” (internal quotation marks omitted)). It would
be odd to think that separation of powers concerns evaporate
simply because the Government is providing monetary bene-
fts rather than imposing obligations. As we observed in
West Virginia, experience shows that major questions cases
“have arisen from all corners of the administrative state,”
and administrative action resulting in the conferral of bene-
fts is no exception to that rule. 597 U. S., at –––. In King
v. Burwell, 576 U. S. 473 (2015), we declined to defer to the
Internal Revenue Service's interpretation of a healthcare
statute, explaining that the provision at issue affected “bil-
lions of dollars in spending each year and . . . the price of
health insurance for millions of people.” Id., at 485 . Be-
506 BIDEN v. NEBRASKA
Opinion of the Court
cause the interpretation of the provision was “a question of
deep `economic and political signifcance' that is central to
[the] statutory scheme,” we said, we would not assume that
Congress entrusted that task to an agency without a clear
statement to that effect. Ibid. (quoting Utility Air, 573
U. S., at 324). That the statute at issue involved govern-
ment benefts made no difference in King, and it makes no
difference here.
All this leads us to conclude that “[t]he basic and conse-
quential tradeoffs” inherent in a mass debt cancellation pro-
gram “are ones that Congress would likely have intended for
itself.” West Virginia, 597 U. S., at –––. In such circum-
stances, we have required the Secretary to “point to `clear
congressional authorization' ” to justify the challenged pro-
gram. Id., at –––, ––– (quoting Utility Air, 573 U. S., at
324). And as we have already shown, the HEROES Act
provides no authorization for the Secretary's plan even when
examined using the ordinary tools of statutory interpreta-
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tion—let alone “clear congressional authorization” for such
a program.9
* * *
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 con-
cluded that an instrumentality created by Missouri, gov-
erned by Missouri, and answerable to Missouri is indeed part
of Missouri; that the words “waive or modify” do not mean
9
The dissent complains that our application of the major questions doc-
trine is a “tell” revealing that “ `normal' statutory interpretation cannot
sustain [our] decision.” Post, at 542, 549. Not so. As we have ex-
plained, the statutory text alone precludes the Secretary's program. To-
day's opinion simply refects this Court's familiar practice of providing
multiple grounds to support its conclusions. See, e. g., Kucana v. Holder,
558 U. S. 233 , 243–252 (2010) (interpreting the text of a federal immigra-
tion statute in the frst instance, then citing the “presumption favoring
judicial review of administrative action” as an additional suffcient basis
for the Court's decision). The fact that multiple grounds support a result
is usually regarded as a strength, not a weakness.
Cite as: 600 U. S. 477 (2023) 507
Barrett, J., concurring
“completely rewrite”; and that our precedent—old and
new—requires that Congress speak clearly before a Depart-
ment 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. 521 (Kagan, J., dissenting). We do not mistake
this plainly heartfelt disagreement for disparagement. It is
important that the public not be misled either. Any such
misperception would be harmful to this institution and our
country.
The judgment of the District Court for the Eastern Dis-
trict of Missouri is reversed, and the case is remanded for
further proceedings consistent with this opinion. The Gov-
ernment's application to vacate the Eighth Circuit's injunc-
tion is denied as moot.
It is so ordered.
Page
Justice Proof Pending Publication
Barrett, concurring.
I join the Court's opinion in full. I write separately to
address the States' argument that, under the “major ques-
tions doctrine,” we can uphold the Secretary of Education's
loan cancellation program only if he points to “ `clear congres-
sional authorization' ” for it. West Virginia v. EPA, 597
U. S. –––, ––– (2022). 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 494–500. The major questions doctrine reinforces
that conclusion but is not necessary to it. Ante, at 506.
Still, the parties have devoted signifcant 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 ––– (Kagan, J., dissenting) (“When [textualism]
would frustrate broader goals, special canons like the `major
questions doctrine' magically appear as get-out-of-text-free
cards”). And I grant that some articulations of the major
508 BIDEN v. NEBRASKA
Barrett, J., concurring
questions doctrine on offer—most notably, that the doctrine
is a substantive canon—should give a textualist pause.
Yet for the reasons that follow, I do not see the major
questions doctrine that way. Rather, I understand it to em-
phasize the importance of context when a court interprets a
delegation to an administrative agency. Seen in this light,
the major questions doctrine is a tool for discerning—not
departing from—the text's most natural interpretation.
I
A
Substantive canons are rules of construction that advance
values external to a statute.1 A. Barrett, Substantive Can-
ons 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 plau-
sible interpretations of a statute. United States v. Santos,
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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 par-
ticular value. Barrett 168. There are many such canons
on the books, including constitutional avoidance, the clear-
statement federalism rules, and the presumption against ret-
roactivity. 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” re-
quirement means that the better interpretation of a statute
will not necessarily prevail. E. g., Boechler v. Commis-
1
They stand in contrast to linguistic or descriptive canons, which are
designed to refect grammatical rules (such as the punctuation canon)
or speech patterns (like the inclusion of some things implies the exclu-
sion of others). A. Barrett, Substantive Canons and Faithful Agency, 90
B. U. L. Rev. 109, 117 (2010).
Cite as: 600 U. S. 477 (2023) 509
Barrett, J., concurring
sioner, 596 U. S. –––, ––– (2022) (“[I]n this context, better
is not enough”). Instead, if the better reading leads to a
disfavored result (like provoking a serious constitutional
question), the court will adopt an inferior-but-tenable read-
ing to avoid it. So to achieve an end protected by a strong-
form canon, Congress must close all plausible off ramps.
While many strong-form canons have a long historical ped-
igree, they are “in signifcant tension with textualism” inso-
far 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 reason-
able 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
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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.
2
Whether the creation or application of strong-form canons exceeds the
“judicial Power” conferred by Article III is a diffcult question. On the
one hand, “federal courts have been developing and applying [such] canons
for as long as they have been interpreting statutes,” and that is some
reason to regard the practice as consistent with the original understanding
of the “judicial Power.” Id., at 155, 176. Moreover, many strong-form
canons advance constitutional values, which heightens their claim to legiti-
macy. Id., at 168–170. On the other hand, these canons advance consti-
tutional values by imposing prophylactic constraints on Congress—and
that is in tension with the Constitution's structure. Id., at 174, 176.
Thus, even assuming that the federal courts have not overstepped by
adopting such canons in the past, I am wary of adopting new ones—and if
the major questions doctrine were a newly minted strong-form canon, I
would not embrace it. In my view, however, the major questions doctrine
is neither new nor a strong-form canon.
510 BIDEN v. NEBRASKA
Barrett, J., concurring
B
Some have characterized the major questions doctrine as
a strong-form substantive canon designed to enforce Arti-
cle I's Vesting Clause. See, e. g., C. Sunstein, There Are
Two “Major Questions” Doctrines, 73 Admin. L. Rev. 475 ,
483–484 (2021) (asserting that recent cases apply the major
questions doctrine as “a nondelegation canon”); L. Heinzer-
ling, The Power Canons, 58 Wm. & Mary L. Rev. 1933 , 1946–
1948 (2017) (describing the major questions doctrine as a
“normative” canon that “is both a presumption against cer-
tain kinds of agency interpretations and an instruction to
Congress”). On this view, the Court overprotects the non-
delegation principle by increasing the cost of delegating au-
thority to agencies—namely, by requiring Congress to speak
unequivocally in order to grant them signifcant rule-making
power. See Barrett 172–176; see also post, at 547 (Kagan, J.,
dissenting) (describing the major questions doctrine as a
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“heightened-specifcity requirement”); Georgia v. President
of the United States, 46 F. 4th 1283, 1314 (CA11 2022) (An-
derson, J., concurring in part and dissenting in part) (“[T]he
major questions doctrine is essentially a clear-statement
rule”). This “clarity tax” might prevent Congress from get-
ting too close to the nondelegation line, especially since the
“intelligible principle” test largely leaves Congress to self-
police. (So the doctrine would function like constitutional
avoidance.) In addition or instead, the doctrine might re-
fect the judgment that it is so important for Congress to
exercise “[a]ll legislative Powers,” Art. I, § 1, that it should
be forced to think twice before delegating substantial discre-
tion to agencies—even if the delegation is well within Con-
gress's power to make. (So the doctrine would function like
the rule that Congress must speak clearly to abrogate state
sovereign immunity.) No matter which rationale justifes it,
this “clear statement” version of the major questions doc-
trine “loads the dice” so that a plausible antidelegation inter-
pretation wins even if the agency's interpretation is better.
Cite as: 600 U. S. 477 (2023) 511
Barrett, J., concurring
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 ac-
tion. See, e. g., West Virginia, 597 U. S., at –––; 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). 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. Cen-
tro De Periodismo Investigativo, Inc., 598 U. S. 339 , 347
(2023). And none purports to depart from the best interpre-
tation 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 re-
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fecting “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 tex-
tual 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 Harv.
L. Rev. 2387 , 2457 (2003) (Manning). To strip a word from
its context is to strip that word of its meaning.
Context is not found exclusively “ `within the four corners'
of a statute.” Id., at 2456 . Background legal conventions,
512 BIDEN v. NEBRASKA
Barrett, J., concurring
for instance, are part of the statute's context. F. Easter-
brook, 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 govern-
mental contexts”). Thus, courts apply a presumption of
mens rea to criminal statutes, Xiulu Ruan v. United States,
597 U. S. –––, ––– (2022), and a presumption of equitable toll-
ing to statutes of limitations, Irwin v. Department of Veter-
ans Affairs, 498 U. S. 89 , 95–96 (1990). It is also well es-
tablished 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) (internal quotation marks omitted). I could
go on. See, e. g., Lexmark Int'l, Inc. v. Static Control Com-
ponents, Inc., 572 U. S. 118, 132 (2014) (federal causes of ac-
tion are construed “to incorporate a requirement of proxi-
mate causation”); Wisconsin Dept. of Revenue v. William
Wrigley, Jr., Co., 505 U. S. 214, 231 (1992) (“de minimis non
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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 case-
books brim with illustrations of why literalism—the antithe-
sis 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-
cause in the context of the criminal code, a reasonable ob-
server would “expect the term `drew blood' to describe a
violent act,” Manning 2461. Common sense similarly bears
on judgments like whether a foating home is a “vessel,” Loz-
man v. Riviera Beach, 568 U. S. 115 , 120–121 (2013), whether
tomatoes are “vegetables,” Nix v. Hedden, 149 U. S. 304 ,
Cite as: 600 U. S. 477 (2023) 513
Barrett, J., concurring
306–307 (1893), and whether a skin irritant is a “chemical
weapon,” Bond, 572 U. S., at 860–862.
Why is any of this relevant to the major questions doc-
trine? 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 princi-
pal, 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 con-
text in which 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 unqualifed, a
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reasonable clerk would know that there are limits. For ex-
ample, 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 disre-
gards context and stretches the words to their fullest will
not have a job for long.
This is consistent with how we communicate conversation-
ally. 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 ba-
bysitter takes the kids on a road trip to an amusement park,
where they spend two days on rollercoasters and one night
in a hotel. Was the babysitter's trip consistent with the par-
ent's instruction? Maybe in a literal sense, because the in-
struction was open-ended. But was the trip consistent with
a reasonable understanding of the parent's instruction?
Highly doubtful. In the normal course, permission to spend
514 BIDEN v. NEBRASKA
Barrett, J., concurring
money on fun authorizes a babysitter to take children to the
local ice cream parlor or movie theater, not on a multiday
excursion to an out-of-town amusement park. If a parent
were willing to greenlight a trip that big, we would expect
much more clarity than a general instruction to “make sure
the kids have fun.”
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
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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 get-
away, we also “expect Congress to speak clearly if it wishes
to assign to an agency decisions of vast `economic and politi-
cal signifcance.' ” Utility Air, 573 U. S., at 324. That clar-
ity may come from specifc words in the statute, but context
can also do the trick. Surrounding circumstances, whether
contained within the statutory scheme or external to it, can
narrow or broaden the scope of a delegation to an agency.
This expectation of clarity is rooted in the basic premise
that Congress normally “intends to make major policy deci-
sions 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,
Cite as: 600 U. S. 477 (2023) 515
Barrett, J., concurring
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 them-
selves in the course of the 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,” Art. I, § 1, a reasonable inter-
preter would expect it to make the big-time policy calls itself,
rather than pawning them off to another branch. See West
Virginia, 597 U. S., at ––– (explaining that the major ques-
tions doctrine rests on “both separation of powers principles
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and a practical understanding of legislative intent”).
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 non-
delegation 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 Congress to
legislate on “important subjects” while delegating away only
“the details.” Wayman v. Southard, 10 Wheat. 1, 43 (1825).
That is different from a normative rule that discourages
Congress from empowering agencies. To see what I mean,
return to the ambitious babysitter. Our expectation of
clearer authorization for the amusement-park trip is not
about discouraging the parent from giving signifcant leeway
to the babysitter or forcing the parent to think hard before
doing so. Instead, it refects the intuition that the parent is
in charge and sets the terms for the babysitter—so if a judg-
ment is signifcant, we expect the parent to make it. If, by
516 BIDEN v. NEBRASKA
Barrett, J., concurring
contrast, one parent left the children with the other parent
for the weekend, we would view the same trip differently
because the parents share authority over the children. In
short, the balance of power between those in a relationship
inevitably frames our understanding of their communica-
tions. And when it comes to the Nation's policy, the Consti-
tution gives Congress the reins—a point of context that no
reasonable interpreter could ignore.
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 543, 549 (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,
Page Proof Pending Publication
448 U. S. 607, 645 (1980) (plurality opinion).3
Still, this skepticism does not mean that courts have an
obligation (or even permission) to choose an inferior-but-
tenable alternative that curbs the agency's authority—and
that marks a key difference between my view and the “clear
statement” view of the major questions doctrine. In some
cases, the court's initial skepticism might be overcome by
text directly authorizing the agency action or context dem-
onstrating that the agency's interpretation is convincing.
(And because context can suffce, I disagree with Justice
Kagan's critique that “[t]he doctrine forces Congress to del-
egate in highly specifc terms.” Post, at 544.) If so, the
court must adopt the agency's reading despite the “major-
3
Indeed, the doctrine may have even deeper roots. See ICC v. Cin-
cinnati, N. O. & T. P. R. Co., 167 U. S. 479 , 494–495 (1897) (explaining
that for agency assertions of “vast and comprehensive” power, “no just
rule of construction would tolerate a grant of such power by mere
implication”).
Cite as: 600 U. S. 477 (2023) 517
Barrett, J., concurring
ness” of the question.4 In other cases, however, the court
might conclude that the agency's expansive reading, even if
“plausible,” is not the best. West Virginia, 597 U. S., at –––.
In that event, the major questions doctrine plays a role, be-
cause it helps explain the court's conclusion that the agency
overreached.
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 statu-
tory 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 tobac-
Page Proof Pending Publication
co's “unique political history”: the FDA's longstanding dis-
avowal of authority to regulate it, Congress's creation of “a
distinct regulatory scheme for tobacco products,” and the to-
bacco industry's “signifcant” role in “the American econ-
omy.” Id., at 159–160. In light of those considerations, we
concluded that “Congress could not have intended to dele-
gate a decision of such economic and political signifcance to
an agency in so cryptic a fashion.” Id., at 160 .
We have also been “[s]keptical of mismatches” between
broad “invocations of power by agencies” and relatively nar-
row “statutes that purport to delegate that power.” In re
MCP No. 165, OSHA, Interim Final Rule: Covid–19 Vacci-
nation and Testing, 20 F. 4th 264 , 272 (CA6 2021) (Sutton,
4
I am dealing only with statutory interpretation, not the separate argu-
ment that a statutory delegation exceeds constitutional limits. See Whit-
man v. American Trucking Assns., Inc., 531 U. S. 457, 474 (2001) (describ-
ing a delegation held unconstitutional because it “conferred authority to
regulate the entire economy on the basis of ” an imprecise standard).
518 BIDEN v. NEBRASKA
Barrett, J., concurring
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 de-
vice” is not authorization for agency action of “enormous im-
portance.” 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 mouse-
holes”). This principle explains why the Centers for Dis-
ease 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 ––– – –––, –––. The statute,
we observed, was a “wafer-thin reed” that could not support
the assertion of “such sweeping power.” Id., at –––. Like-
wise, in West Virginia, we held that a “little-used back-
water” provision in the Clean Air Act could not justify an
Environmental Protection Agency (EPA) rule that would
Page Proof Pending Publication
“restructur[e] the Nation's overall mix of electricity genera-
tion.” 597 U. S., at –––, –––.
Another telltale sign that an agency may have trans-
gressed its statutory authority is when it regulates outside
its wheelhouse. For instance, in Gonzales v. Oregon, we re-
buffed an interpretive rule from the Attorney General that
restricted the use of controlled substances in physician-
assisted suicide. 546 U. S., at 254, 275 . This judgment, we
explained, was a medical one that lay beyond the Attorney
General's expertise, and so a sturdier source of statutory au-
thority than “an implicit delegation” was required. Id., at
267–268. Likewise, in King v. Burwell, we blocked the In-
ternal Revenue Service's (IRS's) attempt to decide whether
the Affordable Care Act's tax credits could be available on
federally established exchanges. 576 U. S., at 485–486.
Among other things, the IRS's lack of “expertise in crafting
health insurance policy” made us think that “had Congress
wished to assign that question to an agency, it surely would
have done so expressly.” Id., at 486. Echoing the theme,
Cite as: 600 U. S. 477 (2023) 519
Barrett, J., concurring
our reasoning in Alabama Association of Realtors rested
partly on the fact that the CDC's eviction moratorium “in-
trude[d] into . . . the landlord-tenant relationship”—hardly
the day-in, day-out work of a public-health agency. 594
U. S., at –––. National Federation of Independent Business
v. OSHA is of a piece. 595 U. S. 109 (2022) (per curiam).
There, we held that the Occupational Safety and Health
Administration's (OSHA's) authority to ensure “ `safe and
healthful working conditions' ” did not encompass the power
to mandate the vaccination of employees; as we explained,
the statute empowered the agency “to set workplace safety
standards, not broad public health measures.” Id., at
114, 117 . The shared intuition behind these cases is that a
reasonable speaker would not understand Congress to confer
an unusual form of authority without saying more.
We have also pumped the brakes when “an agency claims
to discover in a long-extant statute an unheralded power to
regulate `a signifcant portion of the American economy.' ”
Page Proof Pending Publication
Utility Air, 573 U. S., at 324. Of course, an agency's post-
enactment conduct does not control the meaning of a statute,
but “this Court has long said that courts may consider the
consistency of an agency's views when we weigh the persua-
siveness of any interpretation it proffers in court.” Bittner
v. United States, 598 U. S. 85, 97 (2023) (citing Skidmore v.
Swift & Co., 323 U. S. 134, 140 (1944)). The agency's track
record can be particularly probative in this context: A long-
standing “want of assertion of power by those who presum-
ably would be alert to exercise it” may provide some clue
that the power was never conferred. FTC v. Bunte Broth-
ers, Inc., 312 U. S. 349, 352 (1941). Once again, Brown &
Williamson is a good example. There, we balked at the
FDA's novel attempt to regulate tobacco in part because this
move was “[c]ontrary to its representations to Congress
since 1914.” 529 U. S., at 159 . And in Utility Air, we were
dubious when the EPA discovered “newfound authority” in
the Clean Air Act that would have allowed it to require
greenhouse-gas permits for “millions of small sources—in-
520 BIDEN v. NEBRASKA
Barrett, J., concurring
cluding retail stores, offces, apartment buildings, shopping
centers, schools, and churches.” 573 U. S., at 328.
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 bear-
able one more protective of a judicially specifed 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 tex-
tual basis.” West Virginia, 597 U. S., at –––. In each case,
we could have “[p]ut on blinders” and confned 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 con-
sidered context that would be important to a reasonable ob-
server. With the full picture in view, it became evident in
each case that the agency's assertion of “highly consequen-
Page Proof Pending Publication
tial power” went “beyond what Congress could reasonably
be understood to have granted.” West Virginia, 597 U. S.,
at –––.
III
As for today's case: The Court surely could have “hi[t] the
send button,” post, at 542 (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 506, n. 9. It is obviously true that the
Secretary's loan cancellation program has “vast `economic
and political signifcance.' ” Utility Air, 573 U. S., at 324.
That matters not because agencies are incapable of making
highly consequential decisions, but rather because an initia-
tive 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 494–500, 506.
Cite as: 600 U. S. 477 (2023) 521
Kagan, J., dissenting
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 fips when a
critical mass of factors is present—again, it simply refects
“common sense as to the manner in which Congress is likely
to delegate a policy decision of such economic and political
magnitude. ” Brown & Willi amson, 529 U. S., at 133 .
Common sense tells us that as more indicators from our pre-
vious 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 demon-
strate that the Secretary has gone far “beyond what Con-
gress could reasonably be understood to have granted” in
the HEROES Act. West Virginia, 597 U. S., at –––. Our
decision today does not “trump” the statutory text, nor does
it make this Court the “arbiter” of “national policy.” Post,
Page Proof Pending Publication
at 543, 545 (Kagan, J., dissenting). Instead, it gives Con-
gress's words their best reading.
* * *
The major questions doctrine has an important role to play
when courts review agency action of “vast `economic and po-
litical signifcance.' ” 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, lim-
ited 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:
522 BIDEN v. NEBRASKA
Kagan, J., dissenting
He could do only what was “necessary” to alleviate the emer-
gency's impact on affected borrowers' ability to repay their
student loans. 20 U. S. C. § 1098bb(a)(2). But within that
bounded area, Congress gave discretion to the Secretary.
He could “waive or modify any statutory or regulatory provi-
sion” applying to federal student-loan programs, including
provisions relating to loan repayment and forgiveness. And
in so doing, he could replace the old provisions with new
“terms and conditions.” §§ 1098bb(a)(1), (b)(2). The Secre-
tary, that is, could give the relief that was needed, in the
form he deemed most appropriate, to counteract the effects
of a national emergency on borrowers' capacity to repay.
That may have been a good idea, or it may have been a bad
idea. Either way, it was what Congress said.
When COVID hit, two Secretaries serving two different
Presidents decided to use their HEROES Act authority.
The frst suspended loan repayments and interest accrual for
Page Proof Pending Publication
all federally held student loans. The second continued that
policy for a time, and then replaced it with the loan forgive-
ness plan at issue here, granting most low- and middle-
income borrowers up to $10,000 in debt relief. Both relied
on the HEROES Act language cited above. In establishing
the loan forgiveness plan, the current Secretary scratched
the pre-existing conditions for loan discharge, and specifed
different conditions, opening loan forgiveness to more bor-
rowers. So he “waive[d]” and “modif[ied]” statutory and
regulatory provisions and applied other “terms and condi-
tions” in their stead. That may have been a good idea, or it
may have been a bad idea. Either way, the Secretary did
only what Congress had told him he could.
The Court's frst 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 re-
quires 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
Cite as: 600 U. S. 477 (2023) 523
Kagan, J., dissenting
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 ideologi-
cal 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
to keep judges' policy views and preferences out of judicial
decisionmaking is to hew to a statute's text. The HEROES
Page Proof Pending Publication
Act's text settles the legality of the Secretary's loan forgive-
ness plan. The statute provides the Secretary with broad
authority to give emergency relief to student-loan borrow-
ers, including by altering usual discharge rules. What the
Secretary did fts comfortably within that delegation. But
the Court forbids him to proceed. As in other recent cases,
the rules of the game change when Congress enacts broad
delegations allowing agencies to take substantial regulatory
measures. See, e. g., West Virginia v. EPA, 597 U. S. –––
(2022). Then, as in this case, the Court reads statutes un-
naturally, seeking to cabin their evident scope. And the
Court applies heightened-specifcity requirements, thwarting
Congress's efforts to ensure adequate responses to unfore-
seen events. The result here is that the Court substitutes
itself for Congress and the Executive Branch in making na-
tional policy about student-loan forgiveness. Congress au-
thorized the forgiveness plan (among many other actions);
the Secretary put it in place; and the President would have
been accountable for its success or failure. But this Court
524 BIDEN v. NEBRASKA
Kagan, J., dissenting
today decides that some 40 million Americans will not re-
ceive the benefts the plan provides, because (so says the
Court) that assistance is too “signifcan[t].” Ante, at 501–502.
With all respect, I dissent.
I
“No principle is more fundamental to the judiciary's proper
role in our system of government than the constitutional lim-
itation of federal-court jurisdiction to actual cases or contro-
versies.” Simon v. Eastern Ky. Welfare Rights Organiza-
tion, 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). Nor do they “exercise general legal
oversight of the Legislative and Executive Branches.” Ibid.
A court may address the legality of a government action only
if the person challenging it has standing—which requires
that the person have suffered a “concrete and particularized
Page Proof Pending Publication
injury.” Ibid. It is not enough for the plaintiff to assert a
“generalized grievance[ ]” about government policy. Gill v.
Whitford, 585 U. S. –––, ––– (2018). And critically here, the
plaintiff cannot rest its claim on a third party's rights and
interests. See Warth v. Seldin, 422 U. S. 490, 499 (1975).
The plaintiff needs its own stake—a “personal stake”—in the
outcome of the litigation. TransUnion, 594 U. S., at –––. If
the plaintiff has no such stake, a court must stop in its tracks.
To decide the case is to exceed the permissible boundaries of
the judicial role.
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 can-
cellation plan on varied policy and legal grounds. But as
everyone agrees, those objections are just general griev-
ances; 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-
Cite as: 600 U. S. 477 (2023) 525
Kagan, J., dissenting
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 fnancially independent public corporation.
And that means the Court, by deciding this case, exercises
authority it does not have. It violates the Constitution.
A
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
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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 instrumental-
ity” and, as such, “part of Missouri's government.” Brief for
Respondents 16–17; see ante, at 489–491.
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 Govern-
ment 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 fnancially inde-
526 BIDEN v. NEBRASKA
Kagan, J., dissenting
pendent from Missouri—as corporations typically are, the
better to insulate their creators from fnancial loss. See
infra, at 527. 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. Mo. Rev. Stat. § 173.385.1 (3) (2016). But MOHELA
is not a party here. Nor is it an amicus. Nor is it even a
rooting bystander. MOHELA was “not involved with the
decision of the Missouri Attorney General's Offce” to fle this
suit. Letter from Appellees in No. 22–3179 (CA8), p. 3
(Nov. 1, 2022). And MOHELA did not cooperate with the
Attorney General's efforts. When the AG wanted docu-
Page Proof Pending Publication
ments relating to MOHELA's loan-servicing contract, to aid
him in putting forward the State's standing theory, he had
to fle formal “sunshine law” demands on the entity. See id.,
at 3–4. MOHELA had no interest in assisting voluntarily.
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 fnancing alike. Yes, MOHELA is a crea-
ture of state statute, a public instrumentality established to
serve a public function. § 173.360. But the law sets up
MOHELA as a corporation—a so-called “body corporate”—
with a “[s]eparate legal personality.” Ibid.; First Nat. City
Bank v. Banco Para el Comercio Exterior de Cuba, 462 U. S.
611, 625 (1983) (Bancec). Or said a bit differently, MOHELA
is—like the lion's share of corporations, whether public or
private—a “separate legal [entity] with distinct legal rights
and obligations” from those belonging to its creator.
Agency for Int'l Development v. Alliance for Open Society
Int'l Inc., 591 U. S. –––, ––– (2020). MOHELA, for example,
has the power to contract with other entities, which is how
Cite as: 600 U. S. 477 (2023) 527
Kagan, J., dissenting
it entered into a loan-servicing contract with the Department
of Education. See § 173.385.1(15). MOHELA's assets, in-
cluding the fees gained from that contract, are not “part of
the revenue of the [S]tate” and cannot be “used for the pay-
ment of debt incurred by the [S]tate.” §§ 173.386, 173.425.
On the other side of the ledger, MOHELA's debts are
MOHELA's alone; Missouri cannot be liable for them.
§ 173.410. And as noted earlier, MOHELA has the power
to “sue and be sued” independent of Missouri, so it can
both “prosecute and defend” all its varied interests.
§ 173.385.1(3); see supra, at 526. Indeed, before this case,
Missouri had never tried to appear in court on MOHELA's
behalf. That is no surprise. In the statutory scheme, inde-
pendence is everywhere: State law created MOHELA, but
in so doing set it apart.
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
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support various health and educational institutions in the
State. Like MOHELA, MOHEFA is understood as a “pub-
lic 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 Mo. Rev. Stat. §§ 360.020 ,
360.140 (1978); ante, at 490 (suggesting those features mat-
ter). But the State Supreme Court, when confronted with
a claim that MOHEFA's undertakings should be ascribed to
the State, could hardly have been more dismissive. The
court thought it beyond dispute that MOHEFA “is not the
[S]tate,” and that its activities are not state activities. Me-
norah, 584 S. W. 2d, at 78 . Citing MOHEFA's fnancial and
legal independence, the court explained that “[s]imilar bodies
have been adjudged as `separate entities' from” Missouri.
Ibid. MOHELA is no different.
Under our usual standing rules, that separation would
matter—indeed, would decide this case. A plaintiff, this
528 BIDEN v. NEBRASKA
Kagan, J., dissenting
Court has held time and again, cannot rest its claim to judi-
cial relief on the “legal rights and interests” of third parties.
Warth, 422 U. S., at 499 . And MOHELA qualifes as such a
party, for all the reasons just given. That MOHELA is pub-
licly created makes not a whit of difference: When a “govern-
ment instrumentalit[y]” is “established as [a] juridical en-
tit[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 Ship-
yards 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 le-
gally, and also fnancially, “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 nor-
mal standing rules—to go to court.
And those normal rules are more than just rules: They
Page Proof Pending Publication
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
Cite as: 600 U. S. 477 (2023) 529
Kagan, J., dissenting
question is “more appropriately addressed in the representa-
tive 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 hot or divisive. But
Missouri? In adjudicating Missouri's claim, the majority
reaches out to decide a matter it has no business deciding.
It blows through a constitutional guardrail intended to keep
courts acting like courts.
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 490. But in doing so,
Page Proof Pending Publication
the majority barely addresses MOHELA's separate corpo-
rate identity, its fnancial 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 rectifed (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 491. 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 justifcations 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 instru-
mentalities are the same. The Court there held that Arkan-
sas could bring suit on behalf of a state university. But it
did so because the school lacked the fnancial and legal sepa-
530 BIDEN v. NEBRASKA
Kagan, J., dissenting
rateness 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 con-
tract to build a medical facility on campus. For the same
reason, the Court found that “any injury under the contract
to the University is an injury to Arkansas”: The State was
the principal benefciary of the contract to improve its own
property. Ibid. So Arkansas had the sort of direct fnan-
cial interest not present here. And there is more: The Uni-
versity, the Court thought, could not sue on its own. See
ibid. The majority suggests otherwise, citing a state-court
decision holding that corporations usually have the power to
bring and defend legal actions. See ante, at 493. But the
Arkansas Court referenced a different state-court deci-
sion—one holding that another state school was “not author-
ized” to “sue and be sued.” Allen Eng. Co. v. Kays, 106 Ark.
Page Proof Pending Publication
174, 177, 152 S. W. 992, 993 (1913); see Arkansas, 346 U. S.,
at 370 , and n. 9. That decision led this Court to conclude
that Arkansas law treated “a suit against the University” as
“a suit against the State.” Id., at 370 . But if state law had
not done so—as it does not in Missouri for MOHELA? See
supra, at 526–527. The Court made clear that a State cannot
stand in for an independent entity. The State, the Court said,
“must, of course, represent an interest of her own and not
merely that of her citizens or corporations.” 346 U. S., at 310 .
The majority's second case—Lebron v. National Railroad
Passenger Corporation, 513 U. S. 374 (1995)—is yet further
afeld. The issue there was whether Amtrak, a public corpo-
ration 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 rea-
soned, a government could “evade the most solemn obliga-
tions 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
Cite as: 600 U. S. 477 (2023) 531
Kagan, J., dissenting
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
id., at 383 (Amtrak “must be regarded as a Government en-
tity for First Amendment purposes”); id., at 392 (Amtrak is
“a Government entity for purposes of determining the consti-
tutional rights of citizens”); id., at 394 (Amtrak is an “instru-
mentality of the United States for the purpose of individual
rights guaranteed against the Government”); id., at 397, 399,
400 (similar, similar, and similar). But for other purposes, a
different rule might, or would, obtain. Our holding, we said,
did not mean Amtrak had sovereign immunity. See id., at
392. And most relevant here, we reaffrmed that “[t]he
State does not, by becoming a corporator, identify itself with
the corporation” for purposes of litigation. Id., at 398. Or
said again, the Government is “not a party to suits brought
Page Proof Pending Publication
by or against” its corporation. Id., at 399. So what Lebron
tells us about MOHELA is that it must comply with the Con-
stitution. Lebron offers no support (more like the opposite)
for the different view that MOHELA and Missouri are inter-
changeable parties in litigation.1
1
The same goes for the majority's other case about Amtrak, which just
“reiterate[s]” Lebron's reasoning. Ante, at 493; see Department of Trans-
portation v. Association of American Railroads, 575 U. S. 43 (2015).
There too we held that Amtrak was a “governmental entity” for purposes
of the “requirements of the Constitution”—specifcally, the nondelegation
doctrine. Id., at 54 . And there too we kept our holding as limited as
possible, repeatedly stating that we were treating Amtrak as the Govern-
ment for that purpose alone. See, e. g., id., at 51 (“for purposes of
separation-of-powers analysis under the Constitution”); id., at 54 (“for pur-
poses of the Constitution's separation of powers provisions”); id., at 55
(“for purposes of determining the constitutional issues presented in this
case”). As for any other purpose? Not a word to suggest the same re-
sult. And as even the majority concedes, “a public corporation can count
as part of the State for some but not other purposes.” Ante, at 494, n. 3
(internal quotation marks omitted). The Amtrak decisions, to continue
532 BIDEN v. NEBRASKA
Kagan, J., dissenting
Remaining is the majority's unsupported—and insupport-
able—idea that the Secretary's plan “necessarily” hurts Mis-
souri because it “impair[s]” MOHELA's “efforts to aid [the
State's] college students.” Ante, at 491. To begin with, it
seems unlikely that the reduction in MOHELA's revenues
resulting from the discharge would make it harder for stu-
dents to “access student loans,” as the majority contends.
Ante, at 490. MOHELA is not a lender; it services loans
others have made. Which is probably why even Missouri
has never tried to show that the Secretary's plan will so det-
rimentally affect the State's borrowers. In any event—and
more important—such a harm to citizens cannot provide an
escape hatch out of MOHELA's legal and fnancial independ-
ence. That is because of another canonical limit on a State's
ability to ride on third parties: A State may never sue the
Federal Government based on its citizens' rights and inter-
ests. See Alfred L. Snapp & Son, Inc. v. Puerto Rico ex
rel. Barez, 458 U. S. 592, 610, n. 16 (1982); Haaland v. Brack-
Page Proof Pending Publication
een, 599 U. S. 255 , 294–295, and n. 11 (2023). Or said more
technically, a “State does not have standing as parens pa-
triae to bring an action against the Federal Government.”
Ibid.; see Massachusetts v. Mellon, 262 U. S. 447 , 485–486
(1923). So Missouri cannot get standing by asserting that a
harm to MOHELA will harm the State's citizens. Missouri
needs to show that the harm to MOHELA produces harm to
the State itself. And because, as explained above, MO-
HELA was set up (as corporations typically are) to insulate
its creator from such derivative harm, Missouri is incapable
of making that showing. See supra, at 526–527. The sepa-
rateness, both fnancial and legal, between MOHELA and
Missouri makes MOHELA alone the proper party.
The author of today's opinion once wrote that a 1970s-era
standing decision “became emblematic” of “how utterly ma-
borrowing the majority's language, “said nothing about, and had no reason
to address, whether an injury to [a] public corporation was a harm to the
[Government].” Ibid.
Cite as: 600 U. S. 477 (2023) 533
Kagan, J., dissenting
nipulable” this Court's standing law is “if not taken seriously
as a matter of judicial self-restraint.” Massachusetts, 549
U. S., at 548 (Roberts, C. J., dissenting). After today, no
one will have to go back 50 years for the classic case of the
Court manipulating standing doctrine, rather than obeying
the edict to stay in its lane. The majority and I differ, as
I'll soon address, on whether the Executive Branch exceeded
its authority in issuing the loan cancellation plan. But as-
suming the Executive Branch did so, that does not license
this Court to exceed its own role. Courts must still “func-
tion as courts,” this one no less than others. Ibid. And in
our system, that means refusing to decide cases that are not
really cases because the plaintiffs have not suffered concrete
injuries. The Court ignores that principle in allowing Mis-
souri to piggy-back on the “legal rights and interests” of an
independent entity. Warth, 422 U. S., at 499 . If MOHELA
wanted to, it could have brought this suit. It declined to do
so. Under the non-manipulable, serious version of standing
Page Proof Pending Publication
law, that would have been the end of the matter—regardless
how much Missouri, or this Court, objects to the Secre-
tary's plan.
II
The majority fnds no frmer 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 meas-
ures. He can “waive or modify any statutory or regula-
tory provision” applying to the student-loan program.
§ 1098bb(a)(1). And as part of that power, he can “appl[y]”
new “terms and conditions” “in lieu of ” the former ones.
§ 1098bb(b)(2). That means when an emergency strikes, the
Secretary can alter, so as to cover more people, pre-existing
provisions enabling loan discharges. Which is exactly what
the Secretary did in establishing his loan forgiveness plan.
The majority's contrary conclusion rests frst on stilted tex-
534 BIDEN v. NEBRASKA
Kagan, J., dissenting
tual analysis. The majority picks the statute apart piece by
piece in an attempt to escape the meaning of the whole. But
the whole—the expansive delegation—is so apparent that
the majority has no choice but to justify its holding on extra-
statutory grounds. So the majority resorts, as is becoming
the norm, to its so-called major-questions doctrine. And the
majority again reveals that doctrine for what it is—a way
for this Court to negate broad delegations Congress has ap-
proved, because they will have signifcant regulatory im-
pacts. Thus the Court once again substitutes itself for Con-
gress and the Executive Branch—and the hundreds of
millions of people they represent—in making this Nation's
most important, as well as most contested, policy decisions.
A
A bit of background frst, to give a sense of where the
HEROES Act came from. In 1991 and again in 2002, Con-
Page Proof Pending Publication
gress authorized the Secretary to grant student-loan relief
to borrowers affected by a specifed war or emergency. The
frst statute came out of the Persian Gulf Confict. 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.” §§ 372(a)(1),
(b), 105 Stat. 93 . The next iteration responded to the im-
pacts of the September 11 terrorist attacks. It too gave the
Secretary power to “waive or modify” any student-loan pro-
vision, but this time to help borrowers affected by the “na-
tional emergency” created by September 11. § 2(a)(1), 115
Stat. 2386 .
With those one-off statutes in its short-term memory, Con-
gress decided there was a need for a broader and more dura-
ble 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 neces-
sary” in connection with any military operation or “national
emergency.” § 1098bb(a)(1). But the statute's greater cov-
Cite as: 600 U. S. 477 (2023) 535
Kagan, J., dissenting
erage came with no sacrifce of potency. When the law's
emergency conditions are satisfed, the Secretary again has
the power to “waive or modify any statutory or regulatory
provision” relating to federal student-loan programs. Ibid.
Before turning to the scope of that power, note the strin-
gency of the triggering conditions. Putting aside military
applications, the Secretary can act only when the President
has declared a national emergency. See § 1098ee(4). Fur-
ther, the Secretary may provide benefts only to “affected
individuals”—defned as anyone who “resides or is employed
in an area that is declared a disaster area . . . in connection
with a national emergency” or who has “suffered direct eco-
nomic hardship as a direct result of a . . . national emer-
gency.” §§ 1098ee(2)(C)–(D). And the Secretary can do
only what he determines to be “necessary” to ensure that
those individuals “are not placed in a worse position fnan-
cially in relation to” their loans “because of ” the emergency.
§ 1098bb(a)(2). That last condition, said more simply, re-
Page Proof Pending Publication
quires the Secretary to show that the relief he awards does
not go beyond alleviating the economic effects of an emer-
gency on affected borrowers' ability to repay their loans.
But if those conditions are met, the Secretary's delegated
authority is capacious. As in the prior statutes, the Secre-
tary has the linked power to “waive or modify any statutory
or regulatory provision” applying to the student-loan pro-
grams. § 1098bb(a)(1). To start with the phrase after the
verbs, “the word `any' has an expansive meaning.” United
States v. Gonzales, 520 U. S. 1, 5 (1997). “Any” of the refer-
enced provisions means, well, any of those provisions. And
those provisions include several relating to student-loan
cancellation—more precisely, specifying conditions in which
the Secretary can discharge loan principal. See §§ 1087,
1087dd(g); 34 CFR §§ 682.402 , 685.212 (2022). Now go back
to the twin verbs: “waive or modify.” To “waive” means to
“abandon, renounce, or surrender”—so here, to eliminate a
regulatory requirement or condition. Black's Law Diction-
ary 1894 (11th ed. 2019). To “modify” means “[t]o make
536 BIDEN v. NEBRASKA
Kagan, J., dissenting
somewhat different” or “to reduce in degree or extent”—so
here, to lessen rather than eliminate such a requirement.
Id., at 1203 . Then put the words together, as they appear
in the statute: To “waive or modify” a requirement means to
lessen its effect, from the slightest adjustment up to elimi-
nating it altogether. Of course, making such changes may
leave gaps to fll. So the statute says what is anyway obvi-
ous: that the Secretary's waiver/modifcation power includes
the ability to specify “the terms and conditions to be applied
in lieu of such [modifed or waived] statutory and regulatory
provisions.” § 1098bb(b)(2). Finally, attach the “waive or
modify” power to all the provisions relating to loan cancella-
tion: The Secretary may amend, all the way up to discarding,
those provisions and fll the holes that action creates with
new terms designed to counteract an emergency's effects
on borrowers.
Before reviewing how that statutory scheme operated
here, consider how it might work for a hypothetical emer-
Page Proof Pending Publication
gency that the enacting Congress had in the front of its mind.
As noted above, a precursor to the HEROES Act was a stat-
ute authorizing the Secretary to assist student-loan borrow-
ers affected by September 11. See supra, at 534. The
HEROES Act, as Congress designed it, would give him the
identical power to address similar terrorist attacks in the
future. So imagine the horrifc. 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 fee the city to escape the radiation. They
must fnd 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 borrow-
ers. Is that legal? Of course it is; it is exactly what Con-
gress provided for. The statutory preconditions are met:
The President has declared a national emergency; the Secre-
tary's proposed relief extends only to “affected individuals”;
and the Secretary has deemed the action “necessary to en-
Cite as: 600 U. S. 477 (2023) 537
Kagan, J., dissenting
sure” that the attack does not place those borrowers “in a
worse position” to repay their loans. § 1098bb(a). And the
statutory powers of waiver and modifcation give the Secre-
tary the means to offer the needed assistance. He can, for
purposes of this special loan forgiveness program, scratch
the pre-existing conditions for discharge and specify differ-
ent conditions met by the affected borrowers. That is what
the congressionally delegated powers are for. If the Secre-
tary did not use them, Congress would be appalled.
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.
Page Proof Pending Publication
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 “na-
tional emergency.” § 1098ee(4); see 87 Fed. Reg. 10289
(2022). The eligible borrowers all fall within the law's def-
nition of “affected individual[s].” § 1098ee(2); see supra, at
535. And the Secretary “deem[ed]” relief “necessary to en-
sure” that the pandemic did not put low- and middle-income
borrowers “in a worse position” to repay their loans.
§§ 1098bb(a)(1)–(2).2 With those boxes checked, the Secre-
2
More specifcally, the Secretary determined that without a loan dis-
charge, borrowers making less than $125,000 are likely to experience
higher delinquency and default rates because of the pandemic's economic
effects. See App. 234–242, 257–259. In a puzzling footnote, the majority
expresses doubt about that fnding, though says that its skepticism plays
no role in its decision. See ante, at 500, n. 6. Far better if the majority
had ruled on that alternative ground. Then, the Court's invalidation of
the Secretary's plan would not have neutered the statute for all future
uses. But in any event, the skepticism is unwarranted. All the majority
says to support it is that the current “paus[e]” on “interest accrual and
538 BIDEN v. NEBRASKA
Kagan, J., dissenting
tary's waiver/modifcation powers kick in. And the Secre-
tary used them just as described in the hypothetical above.
For purposes of the COVID program, he scratched the condi-
tions for loan discharge contained in several provisions. See
App. 261–262 (citing §§ 1087, 1087dd(g); 34 CFR §§ 682.402 ,
685.212). He then altered those provisions by specifying
different conditions, which opened up loan forgiveness to
more borrowers. So he “waive[d]” and “modif[ied]” pre-
existing law and, in so doing, applied new “terms and condi-
tions” “in lieu of ” the old. §§ 1098bb(a)(1), (b)(2); see 87 Fed.
Reg. 61514 . As in the prior hypothetical, then, he used his
statutory emergency powers in the manner Congress
designed.
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 frst several pages—really, the heart—of its analysis, the
majority proceeds as though the statute contains only the
Page Proof Pending Publication
word “modify.” See ante, at 494–496. It eventually gets
around to the word “waive,” but similarly spends most of its
time treating that word alone. See ante, at 496–498. Only
when that discussion is over does the majority inform the
reader that the statute also contemplates the Secretary's ad-
dition of new terms and conditions. See ante, at 498–499.
But once again the majority treats that authority in isolation,
and thus as insignifcant. Each aspect of the Secretary's au-
thority—waiver, modifcation, replacement—is kept sealed
in a vacuum-packed container. The way they connect and
loan repayments” could achieve the same end. Ibid. But the majority
gives no reason for concluding that the pause would work just as well
to ensure that borrowers are not “placed in a worse position fnancially
in relation to” their loans because of the COVID emergency.
§ 1098bb(a)(2)(A). How could it possibly know? And in any event, the
majority's view of the statute would also make the pause unlawful, as later
discussed. See infra, at 541. So the availability of the pause can hardly
provide a basis for the majority's questioning of the Secretary's fnding
that cancellation is necessary.
Cite as: 600 U. S. 477 (2023) 539
Kagan, J., dissenting
reinforce each other is generally ignored. “Divide to con-
quer” is the watchword. So there cannot possibly emerge
“a fair construction of the whole instrument.” McCulloch
v. Maryland, 4 Wheat. 316, 406 (1819). The majority fails
to read the statutory authorization right because it fails
to read it whole. See A. Scalia & B. Garner, Reading Law:
The Interpretation of Legal Texts 167–169 (2012) (discussing
the importance of the whole-text—here, really, the whole-
sentence—canon).
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
Page Proof Pending Publication
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 frst verb, as discussed above,
means eliminate—usually the most substantial kind of
change. See supra, at 535; accord, ante, at 498. 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 re-
quirement or, short of that, to alter it to the extent you think
appropriate.” Otherwise said, the phrase extends from
minor changes all the way up to major ones.
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 500 (emphasis in original).
The majority's explanation of that idea oscillates a fair bit.
540 BIDEN v. NEBRASKA
Kagan, J., dissenting
At times the majority tries to convey that “additions” as a
class are somehow suspect. See ante, at 498–499 (looking
askance at “add[ing] new terms,” “adding back in,” “flling
the empty space,” “augment[ing],” and “draft[ing] new” lan-
guage). But that is mistaken. Change often (usually?) in-
volves 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 495, 499. So it falls back on ar-
guing that the “additions” allowed cannot be “substantial[ ]”
because the statute uses the word “modify.” Ante, at 498;
see ante, at 499–500. But that just doubles down on the
majority's most basic error: extracting “modify” from the
“waive or modify” phrase in order to confne the Secretary
to making minor changes. As just shown, the phrase as a
whole says the opposite—tells the Secretary that he can
Page Proof Pending Publication
make changes along a spectrum, from modest to substantial.
See supra, at 539. And so he can make additions along that
spectrum as well. In particular, if he entirely removes ex-
isting 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 substitu-
tion authority perfectly clear. As noted earlier, the statute
refers expressly to “the terms and conditions to be applied
in lieu of such [modifed or waived] statutory and regulatory
provisions.” § 1098bb(b)(2); see supra, at 536. In other
words, the statute expects the Secretary's waivers and modi-
fcations to involve replacing the usual provisions with differ-
ent ones. The majority rejoins that the “in lieu of ” lan-
guage is a “wafer-thin reed” for the Secretary to rely on
because it appears in a “humdrum reporting requirement.”
Ante, at 499. But the adjectives are by far the best part of
that response. It is perfectly true that the language in-
structs the Secretary to “include” his new “terms and condi-
tions” when he provides notice of his “waivers or modifca-
Cite as: 600 U. S. 477 (2023) 541
Kagan, J., dissenting
tions.” § 1098bb(b)(2). But that is because the statute
contemplates that there will be new terms and conditions to
report. In other words, the statute proceeds on the premise
that the usual waiver or modifcation will, contra the major-
ity, involve adding “new substantive” provisions. Ante, at
499. The humdrum reporting requirement thus confrms
the expansive extent of the Secretary's waiver/modifcation
authority.
The majority's opposing construction makes the Act incon-
sequential. The Secretary emerges with no ability to re-
spond to large-scale emergencies in commensurate ways.
The creation of any “novel and fundamentally different loan
forgiveness program” is off the table. Ante, at 496. So, for
example, the Secretary could not cancel student loans held
by victims of the hypothetical terrorist attack described
above. See supra, at 536–537. That too would involve “the
introduction of a whole new regime” by way of “draft[ing]
Page Proof Pending Publication
new substantive” conditions for discharging loans. Ante, at
499–500. And under the majority's analysis, new loan for-
bearance policies are similarly out of bounds. When COVID
struck, Secretary DeVos immediately suspended loan repay-
ments and interest accrual for all federally held student
loans. See ante, at 486. The majority claims it is not decid-
ing whether that action was lawful. Ante, at 499, 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 signifcant new beneft, 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 suspension could no more meet the majority's pivotal
defnition of “modify”—as make a “minor change[ ]”—than
could the forgiveness plan. Ante, at 495. On the majority's
telling, Congress thought that in the event of a national
emergency fnancially harming borrowers—under a statute
gearing potential relief to the measure of that harm, so that
affected borrowers end up no less able to repay their loans—
542 BIDEN v. NEBRASKA
Kagan, J., dissenting
the Secretary can do no more than fddle. He can, the ma-
jority says, “reduc[e] the number of tax forms borrowers are
required to fle.” Ibid. Or he can “waive[ ] the require-
ment that a student provide a written request for a leave of
absence.” Ante, at 497. But he can do nothing that would
ameliorate an emergency's economic impact on student-loan
borrowers.
That is not the statute Congress wrote. The HEROES
Act was designed to deal with national emergencies—typi-
cally 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
fnancially” to make repayment. § 1098bb(a)(2). If all the
Act's triggers are met, the Secretary can waive or modify
the usual provisions relating to student loans, and substitute
new terms and conditions. That power extends to the var-
ied provisions governing loan repayment and discharge.
Page Proof Pending Publication
Those provisions are, indeed, the most obvious candidates
for alteration under a statute drafted to leave borrowers no
worse off, in relation to their loans, than before an emer-
gency struck. But the majority will not accept the statute's
meaning. At every pass, it “impos[es] limits on an agency's
discretion that are not supported by the text.” Little Sis-
ters of the Poor Saints Peter and Paul Home v. Pennsylva-
nia, 591 U. S. –––, ––– (2020). It refuses to apply the Act in
accordance with its terms. Explains the majority: “How-
ever broad the meaning of `waive or modify' ”—meaning
however much power Congress gave the Secretary—this
program is just too large. Ante, at 500.
B
The tell comes in the last part of the majority's opinion.
When a court is confdent 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 chap-
Cite as: 600 U. S. 477 (2023) 543
Kagan, J., dissenting
ter 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 501. 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 ac-
countability—the judgment of voters. But none of that is
enough. This Court objects to Congress's permitting the
Secretary (and other agency offcials) 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
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(the Court) will not allow him to use that general authoriza-
tion to resolve important issues. The question, the majority
helpfully tells us, is “who has the authority” to make such
signifcant 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. 651 (2023) (using a similar judi-
cially manufactured tool to negate statutory text enabling
regulation).
The majority's stance, as I explained last Term, pre-
vents Congress from doing its policy-making job in the way
it thinks best. See West Virginia, 597 U. S., at ––– – –––,
––– – ––– (dissenting opinion). The new major-questions
doctrine works not to better understand—but instead to
trump—the scope of a legislative delegation. See id., at –––.
Here is a fact of the matter: Congress delegates to agencies
often and broadly. And it usually does so for sound reasons.
Because agencies have expertise Congress lacks. Because
544 BIDEN v. NEBRASKA
Kagan, J., dissenting
times and circumstances change, and agencies are better able
to keep up and respond. Because Congress knows that if it
had to do everything, many desirable and even necessary
things wouldn't get done. In wielding the major-questions
sword, last Term and this one, this Court overrules those
legislative judgments. The doctrine forces Congress to del-
egate in highly specifc terms—respecting, say, loan forgive-
ness of certain amounts for borrowers of certain incomes
during pandemics of certain magnitudes. Of course Con-
gress sometimes delegates in that way. But also often not.
Because if Congress authorizes loan forgiveness, then what
of loan forbearance? And what of the other 10 or 20 or 50
knowable and unknowable things the Secretary could do?
And should the measure taken—whether forgiveness or for-
bearance or anything else—always be of the same size? Or
go to the same classes of people? Doesn't it depend on the
nature and scope of the pandemic, and on a host of other
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foreseeable and unforeseeable factors? You can see the
problem. It is hard to identify and enumerate every possi-
ble application of a statute to every possible condition years
in the future. So, again, Congress delegates broadly. Ex-
cept that this Court now won't let it reap the benefts of
that choice.
And that is a major problem not just for governance, but
for democracy too. Congress is of course a democratic insti-
tution; it responds, even if imperfectly, to the preferences of
American voters. And agency offcials, though not them-
selves elected, serve a President with the broadest of all po-
litical constituencies. But this Court? It is, by design, as
detached as possible from the body politic. That is why the
Court is supposed to stick to its business—to decide only cases
and controversies (but see supra, at 524–533), and to stay
away from making this Nation's policy about subjects like
student-loan relief. The policy judgments, under our sepa-
ration of powers, are supposed to come from Congress and
Cite as: 600 U. S. 477 (2023) 545
Kagan, J., dissenting
the President. But they don't when the Court refuses to
respect the full scope of the delegations that Congress makes
to the Executive Branch. When that happens, the Court
becomes the arbiter—indeed, the maker—of national policy.
See West Virginia, 597 U. S., at ––– (Kagan, J., dissenting)
(“The Court, rather than Congress, will decide how much
regulation is too much”). That is no proper role for a court.
And it is a danger to a democratic order.
The HEROES Act is a delegation both purposive and
clear. Recall that Congress enacted the statute after pass-
ing two similar laws responding to specifc crises. See
supra, at 534. 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-specifc round of legis-
lation. Emergencies, after all, are emergencies, where
speed is of the essence. For similar reasons, Congress repli-
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cated its prior (two-time) choice to leave the scope and na-
ture of the loan relief to the Secretary, so that he could re-
spond to varied conditions. As the House Report noted,
Congress provided “the authority to implement waivers”
that were “not yet contemplated” but might become neces-
sary to deal with “any unforeseen issues that may arise.”
H. R. Rep. No. 108–122, pp. 8–9 (2003). That delegation is
at the statute's very center, in its “waive or modify” lan-
guage. And the authority it grants goes only to the Secre-
tary—the offcial Congress knew to hold the responsibility
for administering the Government's student-loan portfolio
and programs. See § 1082. Student loans are in the Secre-
tary's wheelhouse. And so too, Congress decided, relief
from those loan obligations in case of emergency. That dele-
gation was the entire point of the HEROES Act. Indeed,
the statute accomplishes nothing else.
The majority is therefore wrong to say that the “indicators
from our previous major questions cases are present here.”
546 BIDEN v. NEBRASKA
Kagan, J., dissenting
Ante, at 504 (internal quotation marks omitted). Compare
the HEROES Act to other statutes containing broad dele-
gations 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 ad-
dressed to other matters. West Virginia, 597 U. S., at –––.
Before that, the majority invalidated the CDC's eviction
moratorium because the agency had asserted authority far
outside its “particular domain.” Alabama Assn. of Real-
tors, 594 U. S., at –––. 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 505.) In this case, the Secretary responsible for car-
rying 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 re-
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lief in national emergencies.3 Today's decision thus moves
3
The nature of the delegation here poses a particular challenge for Jus-
tice Barrett, given her distinctive understanding of the major-questions
doctrine. In her thoughtful concurrence, she notes the “importance of
context when a court interprets a delegation to an administrative agency.”
Ante, at 508 (emphasis in original). I agree, and have said so; there are,
indeed, some signifcant overlaps between my and Justice Barrett's
views on properly contextual interpretation of delegation provisions. See
West Virginia, 597 U. S., at ––– – ––– (dissenting opinion). But then con-
sider two of the contextual factors Justice Barrett views as “telltale
sign[s]” of whether an agency has exceeded the scope of a delegation.
Ante, at 518. First, she asks, is there a “mismatch[ ]” between a “backwa-
ter provision” or “subtle device” and an agency's exercise of power?
Ante, at 517–518. And second, is the agency offcial operating within or
“outside [his] wheelhouse”? Ante, at 518. Here, for the reasons stated
above, there is no mismatch: The broadly worded “waive or modify” dele-
gation IS the HEROES Act, not some tucked away ancillary provision.
And as Justice Barrett agrees, “this is not a case where the agency is
operating entirely outside its usual domain.” Ante, at 521. So I could
practically rest my case on Justice Barrett's reasoning.
Cite as: 600 U. S. 477 (2023) 547
Kagan, J., dissenting
the goalposts for triggering the major-questions doctrine.
Who knows—by next year, the Secretary of Health and
Human Services may be found unable to implement the
Medicare program under a broad delegation because of his
actions' (enormous) “economic impact.” Ante, at 502.
To justify this use of its heightened-specifcity require-
ment, the majority relies largely on history: “[P]ast waivers
and modifcations,” the majority argues, “have been ex-
tremely modest.” Ante, at 501. But frst, 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 frst days. That action cost the
Federal Government over $100 billion, and benefted many
more borrowers than the forgiveness plan at issue. See
supra, at 541. And second, it's all relative. Past actions
were more modest because the precipitating emergencies
were more modest. (The COVID emergency generated, all
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told, over $5 trillion in Government relief spending.) In
providing more signifcant relief for a more signifcant emer-
gency—or call it unprecedented relief for an unprecedented
emergency—the Secretary did what the HEROES Act con-
templates. Imagine asking the enacting Congress: Can the
Secretary use his powers to give borrowers more relief when
an emergency has inficted greater harm? I can't believe
the majority really thinks Congress would have answered
“no.” In any event, the statute Congress passed does not
say “no.” Delegations like the HEROES Act are designed
to enable agencies to “adapt their rules and policies to the
demands of changing circumstances.” FDA v. Brown &
Williamson Tobacco Corp., 529 U. S. 120, 157 (2000). Con-
gress allows, and indeed expects, agencies to take more seri-
ous measures in response to more serious problems.
Similarly unavailing is the majority's reliance on the
controversy surrounding the program. Student-loan cancel-
lation, the majority says, “raises questions that are personal
and emotionally charged,” precipitating “profound debate
548 BIDEN v. NEBRASKA
Kagan, J., dissenting
across the country.” Ante, at 503–504. I have no quarrel
with that description. Student-loan forgiveness, and re-
sponses 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-
specifcity requirement, the Court refuses to acknowledge
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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 does not let the politi-
cal system, with its mechanisms of accountability, operate as
normal. It makes itself the decisionmaker on, of all things,
federal student-loan policy. And then, perchance, it won-
ders why it has only compounded the “sharp debates” in the
country? Ante, at 503.
III
From the frst 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 con-
tested public policy issue properly belonging to the politi-
cally accountable branches and the people they represent.
In saying so, and saying so strongly, I do not at all “dispar-
age[ ]” those who disagree. Ante, at 507. The majority is
Cite as: 600 U. S. 477 (2023) 549
Kagan, J., dissenting
right to make that point, as well as to say that “[r]easonable
minds” are found on both sides of this case. Ibid. 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 521.
It would have been “disturbing,” and indeed damaging,
if they had not. Ante, at 506. The same is true in our
own day.
The majority's opinion begins by distorting standing doc-
trine to create a case ft for judicial resolution. But there is
no such case here, by any ordinary measure. The Secre-
tary'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 fnancially independent. And
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MOHELA has chosen not to sue—which of course it could
have. So no proper party is before the Court. A court act-
ing like a court would have said as much and stopped.
The opinion ends by applying the Court's made-up major-
questions doctrine to jettison the Secretary's loan forgive-
ness plan. Small wonder the majority invokes the doctrine.
The majority's “normal” statutory interpretation cannot sus-
tain its decision. The statute, read as written, gives the
Secretary broad authority to relieve a national emergency's
effect on borrowers' ability to repay their student loans.
The Secretary did no more than use that lawfully delegated
authority. So the majority applies a rule specially crafted
to kill signifcant regulatory action, by requiring Congress
to delegate not just clearly but also micro-specifcally. The
question, the majority maintains, is “who has the authority”
to decide whether such a signifcant action should go for-
ward. Ante, at 501; see supra, at 543. The right answer is
the political branches: Congress in broadly authorizing loan
550 BIDEN v. NEBRASKA
Kagan, J., dissenting
relief, the Secretary and the President in using that author-
ity to implement the forgiveness plan. The majority instead
says that it is theirs to decide.
So in a case not a case, the majority overrides the com-
bined judgment of the Legislative and Executive Branches,
with the consequence of eliminating loan forgiveness for
43 million Americans. I respectfully dissent from that
decision.
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Reporter’s Note
The attached opinion has been revised to refect the usual publication
and citation style of the United States Reports. The revised pagination
makes available the offcial United States Reports citation in advance of
publication. The syllabus has been prepared by the Reporter of Decisions
for the convenience of the reader and constitutes no part of the opinion of
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the Court. A list of counsel who argued or fled briefs in this case, and
who were members of the bar of this Court at the time this case was
argued, has been inserted following the syllabus. Other revisions may
include adjustments to formatting, captions, citation form, and any errant
punctuation. The following additional edits were made:
p. 477, line 8 from bottom, “as the COVID–19 pandemic came to its end”
is changed to “a few weeks before President Biden stated that `the
[COVID–19] pandemic is over' ”