# Biden v. Nebraska/Opinion of Justice Kagan

SUPREME COURT OF THE UNITED STATES
No. 22–506
JOSEPH R. BIDEN, PRESIDENT OF THE UNITED STATES, ET AL., PETITIONERS v. NEBRASKA, ET AL. ON WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT [June 30, 2023]
Justice Kagan, with whom Justice Sotomayor and Justice Jackson join, dissenting.
In every respect, the Court today exceeds its proper, limited role in our Nation’s governance.
Some 20 years ago, Congress enacted legislation, called the HEROES Act, authorizing the Secretary of Education to provide relief to student-loan borrowers when a national emergency struck. The Secretary’s authority was bounded: He could do only what was “necessary” to alleviate the emergency’s impact on affected borrowers’ ability to repay their student loans. 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 provision” 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 Secretary, 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 first suspended loan repayments and interest accrual for all federally held student loans. The second continued that policy for a time, and then replaced it with the loan forgiveness 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 specified different conditions, opening loan forgiveness to more borrowers. So he “waive[d]” and “modif[ied]” statutory and regulatory provisions and applied other “terms and conditions” 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 first overreach in this case is deciding it at all. Under Article III of the Constitution, a plaintiff must have standing to challenge a government action. And that requires a personal stake—an injury in fact. We do not allow plaintiffs to bring suit just because they oppose a policy. Neither do we allow plaintiffs to rely on injuries suffered by others. Those rules may sound technical, but they enforce “fundamental limits on federal judicial power.” Allen v. Wright, 468 U. S. 737, 750 (1984). They keep courts acting like courts. Or stated the other way around, they prevent courts from acting like this Court does today. The plaintiffs in this case are six States that have no personal stake in the Secretary’s loan forgiveness plan. They are classic ideological plaintiffs: They think the plan a very bad idea, but they are no worse off because the Secretary differs. In giving those States a forum—in adjudicating their complaint—the Court forgets its proper role. The Court acts as though it is an arbiter of political and policy disputes, rather than of cases and controversies.
And the Court’s role confusion persists when it takes up the merits. For years, this Court has insisted that the way ​to keep judges’ policy views and preferences out of judicial decisionmaking is to hew to a statute’s text. The HEROES Act’s text settles the legality of the Secretary’s loan forgiveness plan. The statute provides the Secretary with broad authority to give emergency relief to student-loan borrowers, including by altering usual discharge rules. What the Secretary did fits 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 unnaturally, seeking to cabin their evident scope. And the Court applies heightened-specificity requirements, thwarting Congress’s efforts to ensure adequate responses to unforeseen events. The result here is that the Court substitutes itself for Congress and the Executive Branch in making national policy about student-loan forgiveness. Congress authorized 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 today decides that some 40 million Americans will not receive the benefits the plan provides, because (so says the Court) that assistance is too “significan[t].” Ante, at 20–21. 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 limitation of federal-court jurisdiction to actual cases or controversies.” Simon v. Eastern Ky. Welfare Rights Organization, 426 U. S. 26, 37 (1976). In our system, “[f]ederal courts do not possess a roving commission to publicly opine on every legal question.” TransUnion LLC v. Ramirez, 594 U. S. ___, ___ (2021) (slip op., at 8). Nor do they “exercise general legal oversight of the Legislative and ​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 injury.” Ibid. It is not enough for the plaintiff to assert a “generalized grievance” about government policy. Gill v. Whitford, 585 U. S. ___, ___ (2018) (slip op., at 13). 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 ___ (slip op., at 7). 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 cancellation plan on varied policy and legal grounds. But as everyone agrees, those objections are just general grievances; they do not show the particularized injury needed to bring suit. And the States have no straightforward way of making that showing—of explaining how they are harmed by a plan that reduces individual borrowers’ federal student-loan debt. So the States have thrown no fewer than four different theories of injury against the wall, hoping that a court anxious to get to the merits will say that one of them sticks. The most that can be said of the theory the majority selects, proffered solely by Missouri, is that it is less risible than the others. It still contravenes a bedrock principle of standing law—that a plaintiff cannot ride on someone else’s injury. Missouri is doing just that in relying on injuries to the Missouri Higher Education Loan Authority (MOHELA), a legally and financially independent public corporation. And that means the Court, by deciding this case, exercises authority it does not have. It violates the Constitution.
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 activity, it has contracted with the Department of Education to service federally held loans—essentially, to handle billing and collect payments for the Federal Government. Under that contract, MOHELA receives an administrative fee for each loan serviced. When a loan is canceled, MOHELA will not get a fee; so the Secretary’s plan will cost MOHELA money. And if MOHELA is harmed, Missouri must be harmed, because the corporation is a “public instrumentality” and, as such, “part of Missouri’s government.” Brief for Respondents 16–17; see ante, at 8–9.
Up to the last step, the theory is unexceptionable—except that it points to MOHELA as the proper plaintiff. Financial harm is a classic injury in fact. MOHELA plausibly alleges that it will suffer that harm as a result of the Secretary’s plan. So MOHELA can sue the Secretary, as the Government readily concedes. See Tr. of Oral Arg. 18. But not even Missouri, and not even the majority, claims that MOHELA’s revenue loss gets passed through to the State. As further discussed below, MOHELA is financially independent from Missouri—as corporations typically are, the better to insulate their creators from financial loss. See infra, at 6. So MOHELA’s revenue decline—the injury in fact claimed to justify this suit—is not in fact Missouri’s. The State’s treasury will not be out one penny because of the Secretary’s plan. The revenue loss allegedly grounding this case is MOHELA’s alone.
Which leads to an obvious question: Where’s MOHELA? The answer is: As far from this suit as it can manage. MOHELA could have brought this suit. It possesses the power under Missouri law to “sue and be sued” in its own name. 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 Office” to file 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 documents relating to MOHELA’s loan-servicing contract, to aid him in putting forward the State’s standing theory, he had to file 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 financing alike. Yes, MOHELA is a creature 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) (slip op., at 5). MOHELA, for example, has the power to contract with other entities, which is how it entered into a loan-servicing contract with the Department of Education. See §173.385.1(15). MOHELA’s assets, including the fees gained from that contract, are not “part of the revenue of the [S]tate” and cannot be “used for the payment 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 5. Indeed, before this case, Missouri had never tried to appear in court on MOHELA’s behalf. That is no surprise. In the statutory scheme, independence 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 support various health and educational institutions in the State. Like MOHELA, MOHEFA is understood as a “public instrumentality” serving a “public function.” Menorah Medical Center v. Health and Ed. Facilities Auth., 584 S. W. 2d 73, 76 (Mo. 1979). And like MOHELA, MOHEFA has a board appointed by the Governor and sends annual reports to a state department. See Mo. Rev. Stat. §§360.020, 360.140 (1978); ante, at 9 (suggesting those features matter). 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. Menorah, 584 S. W. 2d, at 78. Citing MOHEFA’s financial 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 Court has held time and again, cannot rest its claim to judicial relief on the “legal rights and interests” of third parties. Warth, 422 U. S., at 499. And MOHELA qualifies as such a party, for all the reasons just given. That MOHELA is publicly created makes not a whit of difference: When a “government instrumentalit[y]” is “established as [a] juridical entit[y] distinct and independent from [its] sovereign,” the law—including the law of standing—is supposed to treat it that way. Bancec, 462 U. S., at 626–627; see ​Sloan Shipyards Corp. v. United States Shipping Bd. Emergency Fleet Corporation, 258 U. S. 549, 567 (1922). So this case should have been open-and-shut. Missouri and MOHELA are legally, and also financially, “separate entities.” Menorah, 584 S. W. 2d, at 78. MOHELA is fully capable of representing its own interests, and always has done so before. The injury to MOHELA thus does not entitle Missouri—under our normal standing rules—to go to court.
And those normal rules are more than just rules: They are, as this case shows, guarantors of our constitutional order. The requirement that the proper party—the party actually affected—challenge an action ensures that courts do not overstep their proper bounds. See Clapper v. Amnesty Int’l USA, 568 U. S. 398, 408–409 (2013) (“Relaxation of standing [rules] is directly related to the expansion of judicial power”). Without that requirement, courts become “forums for the ventilation of public grievances”—for settlement of ideological and political disputes. Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U. S. 464, 473 (1982). The kind of forum this Court has become today. Is there a person in America who thinks Missouri is here because it is worried about MOHELA’s loss of loan-servicing fees? I would like to meet him. Missouri is here because it thinks the Secretary’s loan cancellation plan makes for terrible, inequitable, wasteful policy. And so too for Arkansas, Iowa, Kansas, Nebraska, and South Carolina. And maybe all of them are right. But that question is not what this Court sits to decide. That question is “more appropriately addressed in the representative branches,” and by the broader public. Allen, 468 U. S., at 751. Our third-party standing rules, like the rest of our standing doctrine, exist to separate powers in that way—to send political issues to political institutions, and retain only legal controversies, brought by plaintiffs who have suffered real legal injury. If MOHELA had brought this suit, we would have had to resolve it, however ​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 8. But in doing so, the majority barely addresses MOHELA’s separate corporate identity, its financial independence, and its distinct legal rights. In other words, the majority glides swiftly over all the attributes of MOHELA ensuring that its economic losses (1) are not passed on to the State and (2) can be rectified (if there is legal wrong) without the State’s help. The majority is left to argue from a couple of prior decisions and a single idea, the latter relating to the State’s desire to “aid Missouri college students.” Ante, at 9. But the decisions do not stand for what the majority claims. And the idea collides with another core precept of standing law. All in all, the majority’s justifications turn standing law from a pillar of a restrained judiciary into nothing more than “a lawyer’s game.” Massachusetts v. EPA, 549 U. S. 497, 548 (2007) (Roberts, C. J., dissenting).
The majority mainly relies on Arkansas v. Texas, 346 U. S. 368 (1953), but that case shows only that not all public instrumentalities are the same. The Court there held that Arkansas could bring suit on behalf of a state university. But it did so because the school lacked the financial and legal separateness MOHELA has. Arkansas, we observed, “owns all the property used by the University.” Id., at 370. And the suit, if successful, would have enhanced that property: The litigation sought to stop Texas from interfering with a contract to build a medical facility on campus. For the same reason, the Court found that “any injury under ​the contract to the University is an injury to Arkansas”: The State was the principal beneficiary of the contract to improve its own property. Ibid. So Arkansas had the sort of direct financial interest not present here. And there is more: The University, 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 11–12. But the Arkansas Court referenced a different state-court decision—one holding that another state school was “not authorized” to “sue and be sued.” Allen Eng. Co. v. Kays, 106 Ark. 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 6–7. 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.” Ibid.
The majority’s second case—Lebron v. National Railroad Passenger Corporation, 513 U. S. 374 (1995)—is yet further afield. The issue there was whether Amtrak, a public corporation similar to MOHELA, had to comply with the First Amendment. The Court held that it did, labeling Amtrak a state actor for that purpose. On the opposite view, we reasoned, a government could “evade the most solemn obligations imposed in the Constitution by simply resorting to the corporate form.” Id., at 397; see ibid. (noting that Plessy could then be “resurrected by the simple device” of creating a public corporation to run trains). But that did not mean Amtrak was equivalent to the Government for all purposes. Over and over, we cabined our holding that Amtrak was a state actor by adding a phrase like “for purposes of the First Amendment” or other constitutional rights. Id., at 400; see ​id., at 383 (Amtrak “must be regarded as a Government entity for First Amendment purposes”); id., at 392 (Amtrak is “a Government entity for purposes of determining the constitutional rights of citizens”); id., at 394 (Amtrak is an “instrumentality 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 reaffirmed 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 by or against” its corporation. Id., at 399. So what Lebron tells us about MOHELA is that it must comply with the Constitution. Lebron offers no support (more like the opposite) for the different view that MOHELA and Missouri are interchangeable parties in litigation.
​Remaining is the majority’s unsupported—and insupportable—idea that the Secretary’s plan “necessarily” hurts Missouri because it “impair[s]” MOHELA’s “efforts to aid [the State’s] college students.” Ante, at 9. To begin with, it seems unlikely that the reduction in MOHELA’s revenues resulting from the discharge would make it harder for students to “access student loans,” as the majority contends. Ante, at 8. 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 detrimentally 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 financial independence. 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 interests. See Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U. S. 592, 610, n. 16 (1982); Haaland v. Brackeen, 599 U. S. ___, ___, and n. 11 (2023) (slip op., at 32, and n. 11). Or said more technically, a “State does not have standing as parens patriae 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, MOHELA 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 6. The separateness, both financial 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 manipulable” 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 assuming the Executive Branch did so, that does not license this Court to exceed its own role. Courts must still “function 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 Missouri 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 law, that would have been the end of the matter—regardless how much Missouri, or this Court, objects to the Secretary’s plan.
II
The majority finds no firmer ground when it reaches the merits. The statute Congress enacted gives the Secretary broad authority to respond to national emergencies. That authority kicks in only under exceptional conditions. But when it kicks in, the Secretary can take exceptional measures. He can “waive or modify any statutory or regulatory provision” applying to the student-loan program. §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 first on stilted textual 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 approved, because they will have significant regulatory impacts. Thus the Court once again substitutes itself for Congress 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 first, to give a sense of where the HEROES Act came from. In 1991 and again in 2002, Congress authorized the Secretary to grant student-loan relief to borrowers affected by a specified war or emergency. The first statute came out of the Persian Gulf Conflict. It gave the Secretary power to “waive or modify any statutory or regulatory provision” relating to student-loan programs in order to assist “the men and women serving on active duty in connection with Operation Desert Storm.” §§372(a)(1), (b), 105 Stat. 93. The next iteration responded to the impacts of the September 11 terrorist attacks. It too gave the Secretary power to “waive or modify” any student-loan provision, but this time to help borrowers affected by the “national emergency” created by September 11. §2(a)(1), 115 Stat. 2386.
With those one-off statutes in its short-term memory, Congress decided there was a need for a broader and more durable emergency authorization. So in 2003, it passed the HEROES Act. Instead of specifying a particular crisis, that statute enables the Secretary to act “as [he] deems necessary” in connection with any military operation or “national ​emergency.” §1098bb(a)(1). But the statute’s greater coverage came with no sacrifice of potency. When the law’s emergency conditions are satisfied, 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 stringency of the triggering conditions. Putting aside military applications, the Secretary can act only when the President has declared a national emergency. See §1098ee(4). Further, the Secretary may provide benefits only to “affected individuals”—defined 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 economic hardship as a direct result of a … national emergency.” §§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 financially in relation to” their loans “because of” the emergency. §1098bb(a)(2). That last condition, said more simply, requires the Secretary to show that the relief he awards does not go beyond alleviating the economic effects of an emergency 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 Secretary has the linked power to “waive or modify any statutory or regulatory provision” applying to the student-loan programs. §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 referenced 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 Dictionary 1894 (11th ed. 2019). To “modify” means “[t]o make 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 eliminating it altogether. Of course, making such changes may leave gaps to fill. So the statute says what is anyway obvious: that the Secretary’s waiver/modification power includes the ability to specify “the terms and conditions to be applied in lieu of such [modified or waived] statutory and regulatory provisions.” §1098bb(b)(2). Finally, attach the “waive or modify” power to all the provisions relating to loan cancellation: The Secretary may amend, all the way up to discarding, those provisions and fill 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 emergency that the enacting Congress had in the front of its mind. As noted above, a precursor to the HEROES Act was a statute authorizing the Secretary to assist student-loan borrowers affected by September 11. See supra, at 14. The HEROES Act, as Congress designed it, would give him the identical power to address similar terrorist attacks in the future. So imagine the horrific. A terrorist organization sets off a dirty bomb in Chicago. Beyond causing deaths, the incident leads millions of residents (including many with student loans) to flee the city to escape the radiation. They must find new housing, probably new jobs. And still their student-loan bills are coming due every month. To prevent widespread loan delinquencies and defaults, the Secretary wants to discharge $10,000 for the class of affected borrowers. Is that legal? Of course it is; it is exactly what Congress provided for. The statutory preconditions ​are met: The President has declared a national emergency; the Secretary’s proposed relief extends only to “affected individuals”; and the Secretary has deemed the action “necessary to ensure” 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 modification give the Secretary 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 different conditions met by the affected borrowers. That is what the congressionally delegated powers are for. If the Secretary 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. If the hypothetical plan just discussed is legal, so too is this real one. Once more, the statutory preconditions have been met. The President declared the COVID pandemic a “national emergency.” §1098ee(4); see 87 Fed. Reg. 10289 (2022). The eligible borrowers all fall within the law’s definition of “affected individual[s].” §1098ee(2); see supra, at 15. And the Secretary “deem[ed]” relief “necessary to ensure” that the pandemic did not put low- and middle-income borrowers “in a worse position” to repay their loans. §§1098bb(a)(1)–(2). With those boxes checked, ​the Secretary’s waiver/modification powers kick in. And the Secretary used them just as described in the hypothetical above. For purposes of the COVID program, he scratched the conditions 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 conditions” “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 first several pages—really, the heart—of its analysis, the majority proceeds as though the statute contains only the word “modify.” See ante, at 13–15. It eventually gets around to the word “waive,” but similarly spends most of its time treating that word alone. See ante, at 15–16. Only when that discussion is over does the majority ​inform the reader that the statute also contemplates the Secretary’s addition of new terms and conditions. See ante, at 17–18. But once again the majority treats that authority in isolation, and thus as insignificant. Each aspect of the Secretary’s authority—waiver, modification, replacement—is kept sealed in a vacuum-packed container. The way they connect and reinforce each other is generally ignored. “Divide to conquer” 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 167 (“Context is a primary determinant of meaning”). And in the HEROES Act, the dominant piece of context is that “modify” does not stand alone. It is one part of a couplet: “waive or modify.” The first verb, as discussed above, means eliminate—usually the most substantial kind of change. See supra, at 15; accord, ante, at 16. So the question becomes: Would Congress have given the Secretary power to wholly eliminate a requirement, as well as to relax it just a little bit, but nothing in between? The majority says yes. But the answer is no, because Congress would not have written so insane a law. The phrase “waive or modify” instead says to the Secretary: “Feel free to get rid of a requirement or, short of that, to alter it to the extent ​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 18 (emphasis in original). The majority’s explanation of that idea oscillates a fair bit. At times the majority tries to convey that “additions” as a class are somehow suspect. See ante, at 17–18 (looking askance at “add[ing] new terms,” “adding back in,” “filling the empty space,” “augment[ing],” and “draft[ing] new” language). But that is mistaken. Change often (usually?) involves or necessitates replacements. So when the Secretary uses his statutory power to remove some conditions on loan cancellation, he can under that same power replace them with others. The majority itself must ultimately concede that point. See ante, at 13, 17–18. So it falls back on arguing that the “additions” allowed cannot be “substantial” because the statute uses the word “modify.” Ante, at 16; see ante, at 17–18. But that just doubles down on the majority’s most basic error: extracting “modify” from the “waive or modify” phrase in order to confine the Secretary to making minor changes. As just shown, the phrase as a whole says the opposite—tells the Secretary that he can make changes along a spectrum, from modest to substantial. See supra, at 19. And so he can make additions along that spectrum as well. In particular, if he entirely removes existing conditions on loan discharge, he can substitute new ones; he does not have to leave gaping holes.
Indeed, other language in the statute makes that substitution authority perfectly clear. As noted earlier, the statute refers expressly to “the terms and conditions to be applied in lieu of such [modified or waived] statutory and regulatory provisions.” §1098bb(b)(2); see supra, at 16. In other words, the statute expects the Secretary’s waivers and modifications to involve replacing the usual provisions with different ones. The majority rejoins that the “in lieu ​of” language is a “wafer-thin reed” for the Secretary to rely on because it appears in a “humdrum reporting requirement.” Ante, at 17. But the adjectives are by far the best part of that response. It is perfectly true that the language instructs the Secretary to “include” his new “terms and conditions” when he provides notice of his “waivers or modifications.” §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 modification will, contra the majority, involve adding “new substantive” provisions. Ante, at 17. The humdrum reporting requirement thus confirms the expansive extent of the Secretary’s waiver/modification authority.
The majority’s opposing construction makes the Act inconsequential. The Secretary emerges with no ability to respond to large-scale emergencies in commensurate ways. The creation of any “novel and fundamentally different loan forgiveness program” is off the table. Ante, at 14. So, for example, the Secretary could not cancel student loans held by victims of the hypothetical terrorist attack described above. See supra, at 16–17. That too would involve “the introduction of a whole new regime” by way of “draft[ing] new substantive” conditions for discharging loans. Ante, at 17–18. And under the majority’s analysis, new loan forbearance policies are similarly out of bounds. When COVID struck, Secretary DeVos immediately suspended loan repayments and interest accrual for all federally held student loans. See ante, at 5. The majority claims it is not deciding whether that action was lawful. Ante, at 18, n. 5. Which is all well and good, except that under the majority’s reasoning, how could it not be? The suspension too offered a significant new benefit, and to an even greater number of borrowers. (Indeed, for many borrowers, it was worth much more than the current plan’s $10,000 discharge.) So the ​suspension could no more meet the majority’s pivotal definition of “modify”—as make a “minor change”—than could the forgiveness plan. Ante, at 13. On the majority’s telling, Congress thought that in the event of a national emergency financially 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—the Secretary can do no more than fiddle. He can, the majority says, “reduc[e] the number of tax forms borrowers are required to file.” Ibid. Or he can “waive the requirement that a student provide a written request for a leave of absence.” Ante, at 15. 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—typically major in scope, often unpredictable in nature. It gave the Secretary discretionary authority to relieve borrowers of the adverse impacts of many possible crises—as “necessary” to ensure that those individuals are not “in a worse position financially” to make repayment. §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 varied provisions governing loan repayment and discharge. 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 emergency 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 Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, 591 U. S. ___, ___ (2020) (slip op., at 16). It refuses to apply the Act in accordance with its terms. Explains the majority: “However broad the meaning of ‘waive or modify’ ”—meaning however much power Congress gave the ​Secretary—this program is just too large. Ante, at 18.
B
The tell comes in the last part of the majority’s opinion. When a court is confident in its interpretation of a statute’s text, it spells out its reading and hits the send button. Not this Court, not today. This Court needs a whole other chapter to explain why it is striking down the Secretary’s plan. And that chapter is not about the statute Congress passed and the President signed, in their representation of many millions of citizens. It instead expresses the Court’s own “concerns over the exercise of administrative power.” Ante, at 19. Congress may have wanted the Secretary to have wide discretion during emergencies to offer relief to student-loan borrowers. Congress in fact drafted a statute saying as much. And the Secretary acted under that statute in a way that subjects the President he serves to political accountability—the judgment of voters. But none of that is enough. This Court objects to Congress’s permitting the Secretary (and other agency officials) to answer so-called major questions. Or at least it objects when the answers given are not to the Court’s satisfaction. So the Court puts its own heavyweight thumb on the scales. It insists that “[h]owever broad” Congress’s delegation to the Secretary, it (the Court) will not allow him to use that general authorization to resolve important issues. The question, the majority helpfully tells us, is “who has the authority” to make such significant calls. Ibid. The answer, as is now becoming commonplace, is this Court. See, e.g., West Virginia, 597 U. S. ___; Alabama Assn. of Realtors v. Department of Health and Human Servs., 594 U. S. ___ (2021); see also Sackett v. EPA, 598 U. S. ___ (2023) (using a similar judicially manufactured tool to negate statutory text enabling regulation).
The majority’s stance, as I explained last Term, prevents Congress from doing its policy-making job in the way it ​thinks best. See West Virginia, 597 U. S., at ___–___, ___–___ (dissenting opinion) (slip op., at 13–19, 28–33). The new major-questions doctrine works not to better understand—but instead to trump—the scope of a legislative delegation. See id., at ___ (slip op., at 32). 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 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 delegate in highly specific terms—respecting, say, loan forgiveness of certain amounts for borrowers of certain incomes during pandemics of certain magnitudes. Of course Congress 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 forbearance 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 foreseeable and unforeseeable factors? You can see the problem. It is hard to identify and enumerate every possible application of a statute to every possible condition years in the future. So, again, Congress delegates broadly. Except that this Court now won’t let it reap the benefits of that choice.
And that is a major problem not just for governance, but for democracy too. Congress is of course a democratic institution; it responds, even if imperfectly, to the preferences of American voters. And agency officials, though not ​themselves elected, serve a President with the broadest of all political 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 3–13), and to stay away from making this Nation’s policy about subjects like student-loan relief. The policy judgments, under our separation of powers, are supposed to come from Congress and 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) (slip op., at 32) (“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 passing two similar laws responding to specific crises. See supra, at 14. Congress knew that national emergencies would continue to arise. And Congress decided that when they did, the Secretary should have the power to offer relief without waiting for another, incident-specific round of legislation. Emergencies, after all, are emergencies, where speed is of the essence. For similar reasons, Congress replicated its prior (two-time) choice to leave the scope and nature of the loan relief to the Secretary, so that he could respond to varied conditions. As the House Report noted, Congress provided “the authority to implement waivers” that were “not yet contemplated” but might become necessary to deal with “any unforeseen issues that may arise.” H. R. Rep. No. 108–122, pp. 8–9 (2003). That delegation is at the statute’s very center, in its “waive or modify” language. And the authority it grants goes only to the Secretary—the ​official Congress knew to hold the responsibility for administering the Government’s student-loan portfolio and programs. See §1082. Student loans are in the Secretary’s wheelhouse. And so too, Congress decided, relief from those loan obligations in case of emergency. That delegation 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.” Ante, at 23 (internal quotation marks omitted). Compare the HEROES Act to other statutes containing broad delegations that the same majority has found to raise major-questions problems. Last Term, for example, the majority thought the trouble with the Clean Power Plan lay in the EPA’s use of a “long-extant” and “ancillary” provision addressed to other matters. West Virginia, 597 U. S., at ___ (slip op., at 20). Before that, the majority invalidated the CDC’s eviction moratorium because the agency had asserted authority far outside its “particular domain.” Alabama Assn. of Realtors, 594 U. S., at ___ (slip op., at 6). I thought both those decisions wrong. But assume the opposite; there is, even on that view, nothing like those circumstances here. (Or, to quote the majority quoting me, those “case[s are] distinguishable from this one.” Ante, at 23.) In this case, the Secretary responsible for carrying out the student-loan programs forgave student loans in a national emergency under the core provision of a recently enacted statute empowering him to provide student-loan relief in national emergencies. Today’s decision thus moves 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 21.
To justify this use of its heightened-specificity requirement, the majority relies largely on history: “[P]ast waivers and modifications,” the majority argues, “have been extremely modest.” Ante, at 20. But first, it depends what you think is “past.” One prior action, nowhere counted by the majority, is the suspension of loan payments and interest accrual begun in COVID’s first days. That action cost the Federal Government over $100 billion, and benefited many more borrowers than the forgiveness plan at issue. See supra, at 21. And second, it’s all relative. Past actions were more modest because the precipitating emergencies were more modest. (The COVID emergency generated, all told, over $5 trillion in Government relief spending.) In providing more significant relief for a more significant emergency—or call it unprecedented relief for an unprecedented emergency—the Secretary did what the HEROES Act contemplates. Imagine asking the enacting Congress: Can the Secretary use his powers to give borrowers more ​relief when an emergency has inflicted 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). Congress allows, and indeed expects, agencies to take more serious measures in response to more serious problems.
Similarly unavailing is the majority’s reliance on the controversy surrounding the program. Student-loan cancellation, the majority says, “raises questions that are personal and emotionally charged,” precipitating “profound debate across the country.” Ante, at 22. I have no quarrel with that description. Student-loan forgiveness, and responses to COVID generally, have joined the list of issues on which this Nation is divided. But that provides yet more reason for the Court to adhere to its properly limited role. There are two paths here. One is to respect the political branches’ judgments. On that path, the Court recognizes the breadth of Congress’s delegation to the Secretary, and declines to interfere with his use of that granted authority. Maybe Congress was wrong to give the Secretary so much discretion; or maybe he, and the President he serves, did not make good use of it. But if so, there are political remedies—accountability for all the actors, up to the President, who the public thinks have made mistakes. So a political controversy is resolved by political means, as our Constitution requires. That is one path. Now here is the other, the one the Court takes. Wielding its judicially manufactured heightened-specificity requirement, the Court refuses to acknowledge the plain words of the HEROES Act. It declines to respect Congress’s decision to give broad emergency powers to the Secretary. It strikes down his lawful use of that authority to provide student-loan assistance. It ​does not let the political 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 wonders why it has only compounded the “sharp debates” in the country? Ibid.
III
From the first page to the last, today’s opinion departs from the demands of judicial restraint. At the behest of a party that has suffered no injury, the majority decides a contested public policy issue properly belonging to the politically accountable branches and the people they represent. In saying so, and saying so strongly, I do not at all “disparage” those who disagree. Ante, at 26. The majority is right to make that point, as well as to say that “[r]easonable minds” are found on both sides of this case. Ante, at 25. And there is surely nothing personal in the dispute here. But Justices throughout history have raised the alarm when the Court has overreached—when it has “exceed[ed] its proper, limited role in our Nation’s governance.” Supra, at 1. It would have been “disturbing,” and indeed damaging, if they had not. Ante, at 25. The same is true in our own day.
The majority’s opinion begins by distorting standing doctrine to create a case fit for judicial resolution. But there is no such case here, by any ordinary measure. The Secretary’s plan has not injured the plaintiff-States, however much they oppose it. And in that respect, Missouri is no different from any of the others. Missouri does not suffer any harm from a revenue loss to MOHELA, because the two entities are legally and financially independent. And MOHELA has chosen not to sue—which of course it could have. So no proper party is before the Court. A court acting like a court would have said as much and stopped.
The opinion ends by applying the Court’s made-up ​major-questions doctrine to jettison the Secretary’s loan forgiveness plan. Small wonder the majority invokes the doctrine. The majority’s “normal” statutory interpretation cannot sustain 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 significant regulatory action, by requiring Congress to delegate not just clearly but also micro-specifically. The question, the majority maintains, is “who has the authority” to decide whether such a significant action should go forward. Ante, at 19; see supra, at 23. The right answer is the political branches: Congress in broadly authorizing loan relief, the Secretary and the President in using that authority 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 combined judgment of the Legislative and Executive Branches, with the consequence of eliminating loan forgiveness for 43 million Americans. I respectfully dissent from that decision.
* ↑ The same goes for the majority’s other case about Amtrak, which just “reiterate[s]” Lebron’s reasoning. Ante, at 11; see Department of Transportation 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”—specifically, 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 Government for that purpose alone. See, e.g., id., at 51 (“for purposes of separation-of-powers analysis under the Constitution”); id., at 54 (“for purposes 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 result. And as even the majority concedes, “a public corporation can count as part of the State for some but not other purposes.” Ante, at 12, n. 3 (internal quotation marks omitted). The Amtrak decisions, to continue borrowing the majority’s language, “said nothing about, and had no reason to address, whether an injury to [a] public corporation is a harm to the [Government].” Ibid.
* ↑ More specifically, the Secretary determined that without a loan discharge, 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 finding, though says that its skepticism plays no role in its decision. See ante, at 18–19, 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 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 financially 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 21. So the availability of the pause can hardly provide a basis for the majority’s questioning of the Secretary’s finding that cancellation is necessary.
* ↑ The nature of the delegation here poses a particular challenge for Justice 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 2 (emphasis in original). I agree, and have said so; there are, indeed, some significant overlaps between my and Justice Barrett’s views on properly contextual interpretation of delegation provisions. See West Virginia, 597 U. S., at ___–___ (dissenting opinion) (slip op., at 14–19). But then consider 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 12. First, she asks, is there a “mismatch” between a “backwater provision” or “subtle device” and an agency’s exercise of power? Ibid. And second, is the agency official operating within or “outside [his] wheelhouse”? Ante, at 12–13. Here, for the reasons stated above, there is no mismatch: The broadly worded “waive or modify” delegation 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 15. So I could practically rest my case on Justice Barrett’s reasoning.