(Slip Opinion)

1

Use of the HEROES Act of 2003 to Cancel 

the Principal Amounts of Student Loans

The Higher Education Relief Opportunities for Students Act of 2003, Pub. L. No. 108-76, 

117 Stat. 904, grants the Secretary of Education authority to reduce or eliminate the 

obligation to repay the principal balance of federal student loan debt, including on a 

class-wide basis in response to the COVID-19 pandemic, provided all other requirements of the statute are satisfied.

August 23, 2022

MEMORANDUM OPINION FOR THE GENERAL COUNSEL

DEPARTMENT OF EDUCATION

The Higher Education Relief Opportunities for Students Act of 

2003, Pub. L. No. 108-76, 117 Stat. 904 (2003) (codified at 20 U.S.C. 

§§ 1098aa–1098ee) (“HEROES Act of 2003,” or “HEROES Act”), 

vests the Secretary of Education (“Secretary”) with expansive authority 

to alleviate the hardship that federal student loan recipients may suffer 

as a result of national emergencies. The Act provides that the Secretary 

may “waive or modify any statutory or regulatory provision applicable to”

federal student loan programs if the Secretary “deems” such actions 

“necessary to ensure that” certain statutory objectives are achieved. 20 

U.S.C. § 1098bb(a)(1)–(2). One of those objectives is to ensure that 

“recipients of student financial assistance . . . are not placed in a worse 

position financially in relation to that financial assistance because of” a 

national emergency. Id. § 1098bb(a)(2)(A). In 2020, the Secretary invoked this authority in response to the COVID-19 pandemic to suspend 

the repayment obligation and to waive interest payments on student loans 

for every borrower in the United States with a loan held by the federal 

government. See Federal Student Aid Programs, 85 Fed. Reg. 79,856, 

79,862 (Dec. 11, 2020). Prior Secretaries have exercised the same authority to categorically waive statutory and regulatory obligations for borrowers residing or working in a disaster area in connection with a national 

emergency and for borrowers who suffered economic hardship as a result 

of a national emergency. See, e.g., Federal Student Aid Programs, 77 Fed. 

Reg. 59,311, 59,314 (Sept. 27, 2012); Federal Student Aid Programs, 68 

Fed. Reg. 69,312, 69,313–14 (Dec. 12, 2003).
46 Op. O.L.C. __ (Aug. 23, 2022)

2

You have asked whether the HEROES Act authorizes the Secretary to

address the financial hardship arising out of the COVID -19 pandemic by 

reducing or canceling the principal balances of student loans for a broad 

class of borrowers. We conclude that the Act grants that authority. The 

plain text of the HEROES Act authorizes the Secretary to “waive or 

modify any statutory or regulatory provision applicable to” the federal 

student loan program, 20 U.S.C. § 1098bb(a)(1) (emphasis added), an 

authority that encompasses provisions applicable to the repayment of the 

principal balances of loans, provided certain conditions are met. We 

conclude that targeting relief towards those individuals who suffered 

financial hardship because of COVID -19 and who otherwise satisfy the 

requirements of the Act accords with the Act’s requirement that the 

waiver or modification “be necessary to ensure that” student loan recipients who are “affected” by a national emergency “are not placed in a 

worse position financially” with respect to their loans as a result. Id.

§ 1098bb(a)(2). Further, we believe that the Secretary may reasonably 

conclude that class-wide debt relief in these circumstances is appropriate.

I.

A.

The federal government administers three student loan programs. Under 

the William D. Ford Federal Direct Loan Program, the federal government makes loans directly to borrowers, who are then responsible for 

repaying the government. See 20 U.S.C. §§ 1087a –1087j. Under the 

Federal Family Education Loan (“FFEL”) Program and the Federal Perkins Loan Program, loans are made by private or state-based lenders, 

including schools, which in turn transfer their loans to the federal government in certain circumstances. See id. §§ 1071–1087-4; id. §§ 1087aa–

1087ii. Although authority for the latter two programs expired in 2010 

and 2017, respectively, many loans issued pursuant to those programs 

remain outstanding. See Health Care and Education Reconciliation Act 

of 2010, Pub. L. No. 111-152, 124 Stat 1029; Federal Perkins Loan Program Extension Act of 2015, Pub. L. No. 114-105, 129 Stat 2219. As of 

the end of the second quarter of 2022, about 43.0 million borrowers had

loans under the three federal student loan programs, and their debts collectively amounted to approximately $1.62 trillion. See U.S. Dep’t of 
Use of the HEROES Act of 2003 to Cancel the Principal Amounts of Student Loans

3

Education, Federal Student Loan Portfolio, Summary, https://studentaid.

gov/data-center/student/portfolio (last visited Aug. 21, 2022).

The statutory provisions governing each student loan program are set 

forth in title IV of the Higher Education Act of 1965, Pub. L. No. 89-329, 

79 Stat. 1219 (codified as amended at 20 U.S.C. §§ 1070 et seq.) 

(“HEA”). That title specifies the terms and conditions of each type of 

federal loan and the consequences of a borrower’s failure to make payment. See, e.g., 20 U.S.C. §§ 1080, 1087e, 1087dd. It also includes a 

number of provisions allowing for the cancellation of student loans in 

certain circumstances, such as when a borrower works in a public service 

profession for a set period. See id. §§ 1078-10, 1078-11, 1087j, 1087ee.

In addition, the Secretary has supplemented the provisions of title IV 

by promulgating a detailed series of regulations. Those regulations set 

forth a borrower’s obligation to repay loans. See, e.g., 34 C.F.R. 

§ 682.102 (providing that “[a] borrower is obligated to repay the full 

amount” of a loan under the FFEL Program); id. § 685.207 (providing that 

“[a] borrower is obligated to repay the full amount of a Direct Loan”).

And they, too, provide for a number of circumstances in which loans may 

be canceled or discharged. See, e.g., 34 C.F.R. § 682.402 (FFEL discharges); id. §§ 685.212–218 (Direct Loan discharges). 

B.

The precursor of the HEROES Act of 2003 was the Higher Education 

Relief Opportunities for Students Act of 2001, Pub. L. No. 107-122, 115 

Stat. 2386 (2002). Enacted a few months after the terrorist attacks of 

September 11, that statute was intended to “provide the Secretary of 

Education with specific waiver authority to respond to conditions in the 

national emergency declared by the President on September 14, 2001.”

115 Stat. at 2386. To that end, Congress authorized the Secretary to 

“waive or modify any statutory or regulatory provision applicable to” 

student loan programs under title IV “as may be necessary to ensure that” 

the Secretary could alleviate hardships individuals suffered because of 

September 11 and any subsequent terrorist attacks. Id. at 2386, 2388.

Shortly before this statute was slated to expire, Congress extended and 

broadened its grant of authority by enacting the HEROES Act of 2003.

Like its predecessor, the HEROES Act of 2003 grants the Secretary 
46 Op. O.L.C. __ (Aug. 23, 2022)

4

expansive power to “waive or modify” any provisions of title IV and its 

implementing regulations. 20 U.S.C. § 1098bb(a)(1). It provides:

Notwithstanding any other provision of law, unless enacted with 

specific reference to this section, the Secretary . . . may waive or 

modify any statutory or regulatory provision applicable to the student financial assistance programs under title IV of the [HEA] . . . as 

the Secretary deems necessary in connection with a war or other military operation or national emergency to provide the waivers or modifications authorized by [20 U.S.C. § 1098bb(a)(2)].

Id. The Act then specifies in section 1098bb(a)(2) that “[t]he Secretary is 

authorized to waive or modify any provision described in [20 U.S.C. 

§ 1098bb(a)(1)] as may be necessary to ensure that” certain listed objectives are achieved. Id. § 1098bb(a)(2). The first of those objectives is “to 

ensure that . . . recipients of student financial assistance under title IV of 

the [HEA] who are affected individuals are not placed in a worse position 

financially in relation to that financial assistance because of their status as 

affected individuals.” Id. § 1098bb(a)(2)(A).

Several provisions of the Act underscore the breadth of the Secretary’s 

waiver and modification power. The Secretary is authorized to disregard 

notice-and-comment requirements when implementing the Act; instead, 

the Secretary need only publish a notice setting forth “the waivers or

modifications . . . the Secretary deems necessary to achieve the purposes 

of this section” and stating “the terms and conditions to be applied in lieu 

of such statutory and regulatory provisions.” Id. § 1098bb(b)(1)–(2). In 

addition, “[t]he Secretary is not required to exercise the waiver or modification authority . . . on a case-by-case basis.” Id. § 1098bb(b)(3). And the 

Secretary is exempt from otherwise-applicable procedural requirements 

that would delay the implementation of waivers and modifications. Id. 

§ 1098bb(d).

Finally, the Act defines the “affected individuals” whom the Secretary 

may invoke the statute to protect. Unlike its predecessor, the HEROES 

Act of 2003 does not limit relief to individuals who suffered hardship as a 

result of September 11 or other terrorist attacks. The Act instead applies 

to any presidentially declared national emergency. Id. § 1098ee(4). And it 

allows the Secretary to provide relief to any member of the military or

National Guard who is “serving on active duty” or “performing qualifying 
Use of the HEROES Act of 2003 to Cancel the Principal Amounts of Student Loans

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National Guard duty” “during a . . . national emergency,” as those terms

are defined in the Act; any individual who “resides or is employed in an 

area that is declared a disaster area . . . in connection with a national 

emergency”; and any individual who “suffered direct economic hardship 

as a direct result of a war or other military operation or national emergency.” Id. § 1098ee(2), (5)–(6).

The HEROES Act of 2003 was originally set to expire on September 

30, 2005. Pub. L. No. 108-76, § 6, 117 Stat. at 908. In 2005, however, 

Congress extended the Secretary’s authority for two years. Pub. L. No. 

109-78, 119 Stat. 2043. In 2007, it made the Act permanent. Pub. L. No. 

110-93, 121 Stat. 999. In making the Act permanent, Congress stated its 

“sense” that the Act “addresses the unique situations that active duty 

military personnel and other affected individuals may face” and that “the 

provisions authorized by such Act should be made permanent, thereby 

allowing the Secretary of Education to continue providing assistance to 

active duty service members and other affected individuals and their 

families.” Id. § 1(1)–(2), 121 Stat. at 999.

C.

Since the passage of the HEROES Act, the Secretary of Education has 

repeatedly invoked the Act’s waiver or modification authority to issue 

broad-based relief to student loan recipients.

In 2003, the Secretary issued a series of more than a dozen waivers and 

modifications, most of which were deemed applicable to “ALL” persons 

who met the statutory definition of “affected individuals.” 68 Fed. Reg. at 

69,313–14. Those waivers and modifications included alterations to the 

requirements for loan deferrals, extensions of the maximum period of loan 

forbearance for Perkins loans, and waivers of the requirement that students return overpayments of certain grant funds. Id. The Secretary extended the duration of these waivers and modifications without substantive change in 2005 and 2007. See Federal Student Aid Programs, 70 Fed. 

Reg. 61,037 (Oct. 20, 2005); Federal Student Aid Programs, 72 Fed. Reg. 

72,947 (Dec. 26, 2007). In 2007, when Congress reenacted the statute 

without amendment, it expressed its “sense” that the Secretary of Education should “continue providing assistance to . . . affected individuals and 

their families.” 121 Stat. at 999.
46 Op. O.L.C. __ (Aug. 23, 2022)

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In 2012, the Secretary updated the waivers and modifications issued in 

2003 to account for intervening changes in the HEA and its implementing 

regulations. See 77 Fed. Reg. at 59,311. As in 2003, many of the waivers 

and modifications applied to “ALL affected individuals.” Id. at 59,313.

The Secretary retained the substance of nearly all of the earlier waivers, 

while adding a waiver of provisions requiring annual reevaluation of a 

borrower’s eligibility for certain repayment plans. Id. at 59,317. The 

Secretary once again extended these waivers and modifications in 2017 

without change. See Federal Student Aid Programs, 82 Fed. Reg. 45,465 

(Sept. 29, 2017).

Most recently, in 2020 and 2021, the Secretary repeatedly invoked the 

HEROES Act to provide relief in response to the COVID-19 pandemic.

First, on March 20, 2020, the Department of Education relied on the 

HEROES Act to pause the accrual of interest and to allow borrowers to 

cease repayment for all student loans held by the federal government from 

March 13, 2020 until March 27, 2020. See Federal Student Aid, U.S. 

Dep’t of Education, Fiscal Year 2020 Annual Report 38 (Nov. 16, 2020),

https://www2.ed.gov/about/reports/annual/2020report/fsa-report.pdf. On 

March 27, 2020, Congress directed the Secretary to extend these policies 

until October 1, 2020. Coronavirus Aid, Relief, and Economic Security 

Act, Pub. L. No. 116-136, § 3513, 134 Stat. 281, 404 (2020) (“CARES 

Act”). When that direct statutory authorization expired, the Secretary 

invoked the HEROES Act once again to waive interest payments and the 

accrual of interest for all borrowers from October 1, 2020 until December 

31, 2020. See Fiscal Year 2020 Annual Report at 38.

In December 2020, the Secretary issued a series of additional waivers 

and modifications under the HEROES Act. See 85 Fed. Reg. at 79,856.

These waivers applied to every “student enrolled in a postsecondary 

institution” and every borrower “whose Federal student loans provided 

under title IV are in repayment.” Id. at 79,857. They made a bevy of 

changes, including loosening eligibility requirements for federal loans and 

continuing the waiver of any obligation to pay interest. Id. at 79,861–63.

They also expanded eligibility for borrower defenses to repayment by 

allowing certain borrowers with Perkins or FFEL loans to have their 

claims evaluated under standards more beneficial to borrowers. See id. at 

79,862–63; see also Alexandra Hegji, Cong. Research Serv., R46314, 

Federal Student Loan Debt Relief in the Context of COVID-19 at 19 & 
Use of the HEROES Act of 2003 to Cancel the Principal Amounts of Student Loans

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n.107 (updated Feb. 28, 2022), https://crsreports.congress.gov/product/

pdf/R/R46314. Since then, the Secretary has ceased collection activity and 

expanded the pause on interest accrual to all defaulted FFEL loans, and 

also has waived certain administrative requirements for borrowers with 

discharged loans to ensure these borrowers’ loans are not reinstated. See

Press Release, U.S. Dep’t of Education, Department of Education Announces Expansion of COVID-19 Emergency Flexibilities to Additional 

Federal Student Loans in Default (Mar. 30, 2021); Press Release, U.S.

Dep’t of Education, Education Department Announces Relief for Student 

Loan Borrowers with Total and Permanent Disabilities During the 

COVID-19 Emergency (Mar. 29, 2021).

D.

Just over one month after the December 2020 waivers and modifications were issued, on January 12, 2021, the Principal Deputy General 

Counsel of the Department of Education issued a memorandum discussing 

the scope of the Secretary’s authority under the HEROES Act and title IV 

of the HEA. See Memorandum for Betsy Devos, Secretary of Education, 

from Reed D. Rubinstein, Principal Deputy General Counsel, Department 

of Education, Re: Student Loan Principal Balance Cancellation, Compromise, Discharge, and Forgiveness Authority (Jan. 12, 2021) (“Rubinstein Memorandum”). This memorandum stated that the Secretary’s prior

exercises of waiver and modification authority during the COVID -19

pandemic were “appropriate.” Id. at 1. But it expressed the view that 

neither the HEA nor the HEROES Act authorizesthe Secretary to “cancel, 

compromise, discharge, or forgive, on a blanket or mass basis, principal 

balances of student loans, and/or to materially modify the repayment 

amounts or terms thereof.” Id.

The memorandum focused its analysis on the HEA but also offered 

three brief arguments specific to its conclusion regarding the HEROES 

Act. It characterized the Act’s authority as “limited,” allowing only for 

waivers and modifications designed “to put . . . ‘affected individuals’ . . .

in the same position financially in relation to their [student] loans as if the 

national emergency had not occurred.” Id. at 6. It noted that the Act 

makes references to “discharge[s]” and “return[s],” which it understood to 

indicate that “Congress intended loans to be repaid.” Id. And it interpreted

the statutory term “modify” to mean “‘to change moderately or in minor 
46 Op. O.L.C. __ (Aug. 23, 2022)

8

fashion.’” Id. (quoting MCI Telecommc’ns Corp. v. Am. Tel. & Tel. Corp., 

512 U.S. 218, 225 (1994)). More broadly, the memorandum suggested

that a categorical waiver of the obligation to repay student debt would be 

at odds with the “many specific provisions for cancellation . . . of student 

loan principal balances” in the HEA and would “transform[ the] carefully 

cabined HEA settlement authority into a general administrative dispensing 

power.” Id. at 6; see also id. at 3–4 (arguing that these specific provisions 

forestall reading the Secretary’s general authority to “compromise, waive, 

or release any right, title, claim, lien, or demand” to authorize the Secretary to cancel student loans “on a blanket or mass basis”).

You have now asked us to provide an opinion on whether the HEROES 

Act authorizes the Secretary to waive or modify the obligation to repay 

the principal balance of student loan debt on a broad and categorical basis 

in connection with the COVID-19 pandemic. Your request encompasses 

two questions. First, we must resolve whether the Act permits the Secretary to waive or modify the obligation to repay the principal balance of 

student loan debt. Second, if so, we must determine whether broad and 

categorical reduction or cancellation of the principal balances of student 

loans as a response to the COVID-19 pandemic could be structured to

comport with the remaining requirements of the Act. We address each of 

these questions in turn.

II.

We first consider whether, when all other statutory requirements are 

met, the HEROES Act grants the Secretary authority to reduce or eliminate the obligation to repay the principal balance of student loan debt. We 

conclude that it does. By its plain text, the HEROES Act authorizes the 

Secretary to “waive or modify any statutory or regulatory provision applicable to the student financial assistance programs under title IV.” 20 

U.S.C. § 1098bb(a)(1). Because the obligation to repay principal balances

is governed by such statutory or regulatory provisions, see infra Part 

II.A.1, the HEROES Act enables the Secretary to reduce or eliminate that 

obligation through waiver or modification of those provisions. The surrounding clauses of the statute confirm the scope of that authority. And 

we find nothing in the statute’s purpose, history, or any other indicia of 

statutory meaning to undermine that plain-text interpretation.
Use of the HEROES Act of 2003 to Cancel the Principal Amounts of Student Loans

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A.

Section 1098bb(a)(1) provides:

Notwithstanding any other provision of law, unless enacted with 

specific reference to this section, the Secretary of Education . . . may 

waive or modify any statutory or regulatory provision applicable to 

the student financial assistance programs under title IV of the [HEA] 

as the Secretary deems necessary in connection with a war or other 

military operation or national emergency to provide the waivers or 

modifications authorized by paragraph (2).

20 U.S.C. § 1098bb(a)(1). This provision contains three clauses. The 

central clause is a far-reaching grant of authority: “[T]he Secretary of 

Education . . . may waive or modify any statutory or regulatory provision 

applicable to the student financial assistance programs under title IV of 

the [HEA].” That grant of authority is preceded by a notwithstanding

clause, which provides that the Secretary may invoke this waiver and 

modification authority “[n]otwithstanding any other provision of law, 

unless enacted with specific reference to this section.” And the grant of 

authority is followed by a clause specifying that the Secretary may invoke 

this authority “as the Secretary deems necessary in connection with a war 

or other military operation or national emergency to provide the waivers 

or modifications authorized by paragraph (2).”

1.

The provisions requiring individuals to repay student loans are “statutory or regulatory provision[s] applicable to the student financial assistance 

programs under title IV.” 20 U.S.C. § 1098bb(a)(1). These provisions are 

set forth in the U.S. Code and the Code of Federal Regulations. See, e.g., 

20 U.S.C. § 1087dd(c) (requiring loans agreements to “provide[] for 

repayment of the principal amount of the loan”); 34 C.F.R. § 685.207 

(“[a] borrower is obligated to repay the full amount of a Direct Loan”); id.

§ 682.102 (“[a] borrower is obligated to repay the full amount” of a loan 

under the FFEL Program); id. § 682.209 (“Repayment of a loan.”). And 

they are “applicable to the student financial assistance programs under 

title IV” because they direct how financial assistance provided under title 

IV should be repaid. See Applicable, Black’s Law Dictionary (11th ed. 
46 Op. O.L.C. __ (Aug. 23, 2022)

10

2019) (defining “applicable” as “affecting or relating to a particular 

person, group, or situation; having direct relevance”).

The Secretary may accomplish the cancellation or reduction of student debt by “waiv[ing] or modify[ing]” these provisions. 20 U.S.C. 

§ 1098bb(a)(1). The ordinary meaning of the term “waive” is to “refrain 

from insisting upon.” Waive, Oxford English Dictionary, https://www.

oed.com/view/Entry/225159 (last visited Aug. 21, 2022) (“refrain from 

insisting upon, . . . to forbear to claim or demand”); see Waive, Black’s 

Law Dictionary (“refrain from insisting on (a strict rule, formality, etc.); 

to forgo”). An official who “waives” a legal obligation thus exempts an 

individual from the duty to comply with that obligation.1 Accordingly, by 

“waiv[ing]” the provisions setting forth the obligation to repay student 

debt, the Secretary would eliminate an individual’s duty to comply with 

those obligations.

The Secretary also may “modify” those provisions and thereby reduce 

the scope of individuals’ payment obligations. The word “modify” means 

“[t]o make somewhat different” or “to reduce in degree or extent.” Modify, Black’s Law Dictionary. The degree or extent of change authorized by 

the term “modify” can sometimes connote only limited or incremental 

changes. MCI Telecommc’ns Corp. v. Am. Tel. & Tel. Co., 512 U.S. 218, 

225 (1994). In other circumstances, however, it can refer to “substantial” 

changes up to and including the elimination of legal obligations in their 

entirety. See, e.g., Validity of Congressional-Executive Agreements That 

1 Statutes frequently use the term “waive” in this manner. See, e.g., 8 U.S.C. § 1187 

(authorizing the Secretary of Homeland Security to “waive” visa requirements on a classwide basis for all foreign nationals coming from designated countries); 10 U.S.C. 

§ 1408(a)(4)(A)(ii) (permitting veterans to “waive[] retired pay required by law in order 

to receive [disability] compensation”); 42 U.S.C. § 1320b-5 (permitting the Secretary of 

Health and Human Services “to temporarily waive or modify” regulations to ensure the 

provision of health care services during national emergencies); 20 U.S.C. § 10012(a)–(b) 

(permitting the Secretary of Education to “waive or modify any [financial effort] requirement” of the Individuals with Disabilities Education Act for “fiscal year 2009, . . . 2010, 

or . . . 2011”); 50 U.S.C. § 1701 (permitting the President to waive indefinitely sanctions 

on foreign persons responsible for the use of civilians as human shields); 20 U.S.C. 

§ 7861(a) (permitting the Secretary of Education to waive requirements that the No Child 

Left Behind Act imposes on federal education subsidies); 42 U.S.C. § 18052(a)(1)–(2) 

(permitting the Secretaries of Health and Human Services and of the Treasury to waive 

Affordable Care Act health care insurance exchange requirements, minimum plan coverage requirements, and individual mandates upon state request).
Use of the HEROES Act of 2003 to Cancel the Principal Amounts of Student Loans

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Substantially Modify the United States’ Obligations Under an Existing 

Treaty, 20 Op. O.L.C. 389, 391–92 (1996); Congressionally Mandated 

Notice Period for Withdrawing from the Open Skies Treaty, 44 Op. 

O.L.C. __, at *27 (Sept. 22, 2020) (quoting President Wilson as defining 

“the power of modifying an existing treaty” as the power of “adding or 

striking out provisions”). To determine which meaning Congress intended 

in a particular statute, we read the term in light of “contextual indications” 

provided by the statutory scheme as a whole. MCI, 512 U.S. at 226; see 

also Caraco Pharm. Labs., Ltd. v. Novo Nordisk A/S, 566 U.S. 399, 413 

(2012) (“Ultimately, context determines meaning.” (quotation marks 

omitted)).

Here, context makes clear that the term “modify” authorizes the Secretary to reduce, by any degree, the obligation to comply with statutory 

or regulatory provisions. See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 195 (2012) (“[a]ssociated 

words bear on one another’s meaning”); Gustafson v. Alloyd Co., 513 

U.S. 561, 575 (“a word is known by the company it keeps”). The term 

“modify” appears as part of the phrase “waive or modify.” 20 U.S.C. 

§ 1098bb(a)(1). And as just noted, the term “waive” confers the power to 

excuse an individual from legal obligations in their entirety. In that light, 

it seems clearly wrong to interpret the neighboring term “modify” as 

limited to authorizing the Secretary to make only minor or incremental 

changes to provisions of the student loan program. That would put the 

Secretary to a peculiar choice: either eliminate legal obligations wholesale 

or alter them to a marginal degree—but make no changes in between.

Here, the better interpretation is clearly that Congress granted the Secretary the power both to eliminate legal obligations (“waive”) and to reduce 

them to any extent short of waiver (“modify”) as long as the other requirements of the statute are satisfied. For example, the Secretary might 

alter the relevant regulations to provide that they would require repayment 

only of a portion of a loan. Or the Secretary could change them to state 

that the regulations apply only to certain borrowers or are limited to 

particular circumstances. Changes of this nature fall within the ambit of 

the Secretary’s power to “modify,” as that term is naturally understood.2

2 You have advised us that these changes—in addition to vitiating any statutory or regulatory obligation of repayment—would nullify any contractual requirement for repay-
46 Op. O.L.C. __ (Aug. 23, 2022)

12

2.

The surrounding clauses of section 1098bb(a)(1) reinforce our conclusion that the Secretary’s power to “waive or modify any statutory or 

regulatory provision applicable to the student financial assistance programs under title IV” includes the authority to eliminate or reduce the 

obligation to repay student loan debt.

First, the statute’s “notwithstanding” clause makes clear that no other 

statutory provision implicitly limits the Secretary’s authority to waive or 

modify. In statutes, the term “notwithstanding” “shows which provision 

prevails in the event of a clash.” NLRB v. SW Gen., Inc., 137 S. Ct. 929, 

939 (2017) (quotation marks omitted); see Cisneros v. Alpine Ridge Grp., 

508 U.S. 10, 18 (1993) (“the use of such a ‘notwithstanding’ clause clearly signals the drafter’s intention that the provisions of the ‘notwithstanding’ section override conflicting provisions of any other section”). The 

notwithstanding clause thus provides that, in the event of a conflict between section 1098bb and another provision, section 1098bb takes precedence. And it underscores the strength of that rule by providing that 

another provision will govern only if it contains a “specific reference” to 

section 1098bb.

We have found no provision of law that expressly limits the Secretary’s 

authority to waive or modify the obligation to repay student debt. The 

statutory and regulatory provisions governing student loan repayments 

contain no reference to section 1098bb. Nor do they state that they limit 

the authority granted by that section. And we know of no other provision 

of law that contains such a statement. The Secretary’s waiver and modification authority thus applies, “[n]otwithstanding” the provisions governing student loan debt, and that authority may be used to waive or modify 

the obligations those provisions impose.

Second, this understanding of the authority granted by section 

1098bb(a)(1) is supported by the provision’s final clause. That clause, 

taken together with section 1098bb(a)(2), sets forth the “purposes” for 

ment stemming from the borrowers’ loan agreements because those agreements expressly 

state that they are subject to the HEA and its implementing regulations. See Memorandum 

for the Office of Legal Counsel, U.S. Dep’t of Justice, from the Office of General Counsel, U.S. Dep’t of Education, Re: Questions on Broad-Based Debt Cancellation at 2 (Aug. 

16, 2021).
Use of the HEROES Act of 2003 to Cancel the Principal Amounts of Student Loans

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which the Secretary may exercise the waiver and modification authority.

See id. § 1098bb(b)(1). These clauses define one of the core purposes for 

which Congress granted waiver and modification authority as being to 

“ensure” that recipients of financial assistance “are not placed in a worse 

position financially in relation to that financial assistance” because of a 

military operation or other national emergency. Id. § 1098bb(a)(1)–(2).

We have no difficulty conceiving of circumstances in which the Secretary’s authority to eliminate or reduce a borrower’s obligation to repay 

student loan debt might be central to achieving this objective. For example, the Secretary might reasonably find that debt cancellation would 

“ensure” that a soldier permanently disabled in a military operation and 

unable to work was “not placed in a worse position financially in relation 

to [her] financial assistance because of ” her military service. Id.; see id. 

§ 1098ee(2)(A). In this and other hypothetical circumstances we can 

imagine, the aggregate financial harm suffered by borrowers as a result of 

their status as affected individuals might make cancellation of some or all 

of their federal student indebtedness appropriate. Given the breadth of the 

statute as discussed more fully below, see infra Part III.D, we think this 

sort of debt cancellation or reduction fits well within the range of actions 

that the Secretary might choose to achieve the Act’s purposes. 

3.

The Rubinstein Memorandum by and large did not engage with any of 

this textual evidence in its cursory analysis of the HEROES Act. The 

memorandum failed to consider the implications of the fact that the 

statute grants the Secretary authority both to “waive” and to “modify” 

provisions of law. Cf. Rubinstein Memorandum at 6 (considering solely 

the word “modify”). The memorandum also did not acknowledge the 

statute’s “notwithstanding” clause or consider whether that clause forecloses the negative inference the memorandum proposes to draw from 

provisions of the HEA that authorize cancellation of loan principal in 

different situations. See id. at 6 –7. Indeed, the memorandum failed even 

to acknowledge the simple textual point that the statute grants the Secretary authority to waive or modify “any statutory or regulatory provision 

applicable to the student financial assistance programs under title IV of 

the Act,” 20 U.S.C. § 1098bb(a)(1) (emphasis added), and that the stat-
46 Op. O.L.C. __ (Aug. 23, 2022)

14

utes and regulations imposing the obligation to repay student loans are 

examples of such provisions. 

The textual evidence that the Rubinstein Memorandum did consider is 

not sufficient to overcome the powerful indicia that the statute grants the 

Secretary authority to eliminate or reduce the obligation to repay student 

loans. The memorandum observed that “the Secretary’s delegated authority is limited . . . to the waiver or modification of statutory requirements” 

to achieve the objectives set forth in section 1098bb(a)(2). Rubinstein 

Memorandum at 6. The memorandum, however, did not explain why the 

elimination or reduction of student loan debt cannot be deemed a “necessary” means of “ensur[ing]” that those objectives are achieved. 20 U.S.C. 

§ 1098bb(a)(1)–(2).

The Rubinstein Memorandum also suggested that the existence of 

“many specific provisions for cancellation, compromise, discharge, or 

forgiveness of student loan principal balances” in the HEA precludes the 

Secretary from exercising the waiver and modification authority to cancel 

student loan debt. Rubinstein Memorandum at 6 (pointing to provisions 

that provide for loan cancellation or forgiveness in certain defined circumstances). Invoking the canon that “the specific governs the general,” 

the memorandum suggested that these provisions set forth the exclusive 

circumstances in which the Secretary may cancel student loan debt and

thus implicitly bar the Secretary from invoking section 1098bb(a)(1) or 

other HEA authorities for that same purpose. Id. at 3–4, 6–7. The notwithstanding clause, however, cautions against inferring that Congress silently 

precluded use of section 1098bb to cancel student debt merely by enacting 

other cancellation authority applicable in other specific situations. Besides, although section 1098bb may provide the Secretary with powerful 

tools to address the circumstances encompassed by the HEROES Act, it 

also covers only a limited set of circumstances (when there is a “war or 

other military operation or national emergency,” 20 U.S.C. 

§ 1098bb(a)(1)), and it authorizes relief only for a defined class of individuals affected by those emergencies, id. § 1098ee(2) (defining the term 

“affected individual”), to accomplish limited objectives such as “ensur[ing]” these individuals are not “placed in a worse position financially” 

in relation to their loans, id. § 1098bb(a)(2). It is not at all clear that the 

carefully drawn emergency authority in the HEROES Act is more general 

than the provisions authorizing student debt relief in non-emergency 
Use of the HEROES Act of 2003 to Cancel the Principal Amounts of Student Loans

15

circumstances,

3 making the Rubinstein Memorandum’s reliance on the 

“specific governs the general” canon inapposite.

The memorandum further argued that Congress’s references to “defaults” and “return[s]” of student loan funds in two subparagraphs of 

section 1098bb(a)(2) indicate that Congress “intended loans to be repaid, 

even after the exercise of HEROES Act authority.” Rubinstein Memorandum at 6. But section 1098bb(a)(2)(B) lists the avoidance of “defaults” as 

part of a larger set of possible objectives the Secretary may pursue (“to 

ease the burden on such students and avoid . . . violations or defaults”

(emphasis added)). The fact that one of several possible goals that the 

Secretary may pursue is to “avoid . . . defaults” does not suggest that 

every invocation of waiver or modification authority under this provision 

must preserve some balance on an individual’s student loan. And section 

1098bb(a)(2)(D) simply authorizes waivers and modifications “to ensure 

that . . . the amount a student is required to return may be modified so that 

no overpayment will be required to be returned or repaid” if certain conditions are satisfied. We see nothing in this provision that would prevent the 

Secretary from waiving or modifying other statutory or regulatory obligations, separate and apart from any obligation to return “overpayments,”

such that the remaining balance on a student’s loan is set to zero.

As a final textual argument, the Rubinstein Memorandum suggested

that reading section 1098bb(a)(2) to permit the cancellation or reduction 

of student loan debt would contravene the principle that Congress “‘does 

not . . . hide elephants in mouseholes.’” Rubinstein Memorandum at 2 

3 Consider, for example, the statutory provision authorizing loan forgiveness for borrowers with income-based repayment plans. See 20 U.S.C § 1098e. When establishing a 

new regulatory program to implement this provision, the Department of Education 

estimated that six million borrowers would be eligible and that two million would enroll.

See Student Assistance General Provisions, Federal Family Education Loan Program, and 

William D. Ford Federal Direct Loan Program, 80 Fed. Reg. 67,204, 67,229 (Oct. 30, 

2015). And within a few years of the program’s launch, approximately 2.17 million 

borrowers had in fact enrolled. See Alexandra Hegji et al., Cong. Research Serv., R43571, 

Federal Student Loan Forgiveness and Loan Repayment Programs at 30 & n.102 (updated Nov. 20, 2018), https://crsreports.congress.gov/product/pdf/R/R43571/11. These 

numbers could easily exceed the number of borrowers affected by a particular military 

operation or national emergency, underscoring how the HEA’s purportedly “specific”

provisions for the forgiveness or cancellation of student loan debt may actually sweep 

much more broadly than an application of the HEROES Act.
46 Op. O.L.C. __ (Aug. 23, 2022)

16

(quoting Gonzales v. Oregon, 546 U.S. 243, 267 (2006)). When Justice 

Scalia used the mousehole metaphor for the first time in the U.S. Reports, 

he used it to express the idea that Congress “does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions.”

Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468 (2001). There is no 

mousehole here because there is nothing “vague” or “ancillary” about the 

HEROES Act. The HEROES Act expressly gives the Secretary sweeping 

authority to “waive or modify any statutory or regulatory provision applicable to the student financial assistance programs under title IV,” 

“[n]otwithstanding any other provision of law.” 20 U.S.C. § 1098bb(a)(1) 

(emphases added). It confers that authority to enable the Secretary to act 

in times of “national emergency,” when significant actions with potentially far-reaching consequences are often required. Id. And it expressly 

contemplates that the Secretary may exercise this authority to impose new 

requirements “in lieu of” those contained in statutes and regulations. Id. 

§ 1098bb(b)(2). The HEROES Act, in short, is no “mousehole,” and 

cancellation of student debt fits comfortably within the statute’s expansive 

scope.

B.

Legislative history and past administrative practice reinforce our reading of the HEROES Act as allowing the Secretary to use his waiver and 

modification authority to cancel student loan debt.

1.

The legislative history of the HEROES Act indicates that Members of 

Congress understood the breadth of the authority they were providing the 

Secretary. Some Members emphasized that the Act would provide the 

authority “to act quickly should a situation arise that has not been considered,” 149 Cong. Rec. 7923 (2003) (statement of Rep. McKeon), and the 

flexibility to “address events now unforeseen,” id. at 7925 (statement of 

Rep. Holt). These statements are consistent with the conclusion that, 

because of the unforeseen circumstances of a national emergency, the 

Secretary might deem it necessary to cancel or reduce certain amounts of 

student loan debt.
Use of the HEROES Act of 2003 to Cancel the Principal Amounts of Student Loans

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We have found no statements from the brief floor debate on the Act 

expressly rejecting the Secretary’s power to cancel student loan debt 

under the HEROES Act. A few statements suggest that some Members of 

Congress viewed the Act primarily as authorizing the Secretary to defer 

payments. See, e.g., id. at 7923 (“What we want to do here is to make it 

clear to the Secretary that . . . in the case of a national emergency that he 

can, in fact, defer these payments.” (statement of Rep. Boehner)); id. at 

7922 (“the Secretary will have the opportunity to forbear a loan as our 

servicemen and servicewomen are activated” (statement of Rep. Ryan)); 

id. (“the HEROES Act of 2003 . . . gives the Secretary the authority . . . to 

ensure that our troops whose lives have been disrupted suddenly, and now 

serve us in the Middle East and in Iraq, to make sure that . . . their loan 

payments are deferred until they return” (statement of Rep. Isakson)). But 

these statements do not demonstrate that these Members viewed the 

HEROES Act as preventing debt cancellation as an exercise of the Secretary’s discretion to accomplish the objectives of the Act. An alternative 

explanation is that they simply did not focus on this particular application 

when they enacted the statute. There is nothing in these or any other 

statements in the legislative history indicating that Congress meant to 

prevent the Secretary from reducing or canceling debt if the Secretary 

“deems” such reductions or cancellations “necessary” to “ensure” that 

“affected individuals are not placed in a worse position financially in 

relation to [their] financial assistance because of their status as affected 

individuals.”

2.

We also find nothing in past administrative practice that would undermine our interpretation. As noted above, see supra Part I.C, the Secretary 

has invoked the authority under section 1098bb(a)(1) a number of times 

since the statute’s enactment in 2003. One of these invocations, the expansion of eligibility for borrower defenses to repayment, will almost 

certainly reduce the amount of principal repaid by borrowers. See 34 

C.F.R. § 685.222(i)(1) (“appropriate . . . relief” for a borrower who establishes a defense “may be a discharge of all amounts owed to the Secretary 

on the loan at issue” (emphasis added)). Other invocations—such as

suspending interest accrual and repayment obligations in response to the 
46 Op. O.L.C. __ (Aug. 23, 2022)

18

COVID-19 pandemic, see 85 Fed. Reg. at 79,862—entailed the waiver or 

modification of significant elements of the student loan program.

We can identify no good reason why section 1098bb(a)(1) would allow 

the Secretary to waive or modify these important provisions of the student 

loan program, but would deny the Secretary the authority to waive or 

modify the obligation to repay the principal balance of student loans. In 

each case, the provisions being waived or modified are significant and the 

economic consequences of those changes are potentially substantial. Yet 

neither the Secretary nor Congress indicated that these prior exercises of 

authority were of questionable validity or marked the outer reaches of the 

Secretary’s authority. To the contrary, Congress took steps to ensure that 

the Secretary would continue to carry them out. See CARES Act

§ 3513(a), (b), 134 Stat. at 404 (directing the suspension of loan payments 

and a freeze on the accrual of interest through September 30, 2020, following the Secretary’s invocation of the HEROES Act to suspend loan 

payments and to set interest rates to zero). Even if the direct cancellation 

of the principal balances of student loans would be a new application of 

the statute, novelty alone would not itself be a reason to conclude that an 

agency’s exercise of statutory authority is unlawful, see Bostock v. Clayton Cty., 140 S. Ct. 1731, 1750 (2020)—particularly in the context of a 

relatively young statute like the HEROES Act that was expressly designed 

to respond to unforeseen emergencies.

3.

Finally, the Rubinstein Memorandum raises the specter of constitutional concerns that we find clearly have no appropriate application here—and 

that in particular do not warrant reading unwritten limits into the clear text 

of section 1098bb(a)(1). First, we have no concern that our interpretation 

might create a violation of the Appropriations Clause. See Rubinstein 

Memorandum at 1–2, 4. The Appropriations Clause provides that “[n]o 

Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” U.S. Const. art. I, § 9, cl. 7. Here, the waiver or 

cancellation of student debt does not require drawing money from the 

Treasury; it entails a waiver of the right to collect money that is owed to 

the United States. The Appropriations Clause therefore is not implicated.

Second, the cancellation of student loan debt in no way involves an impermissible exercise of settlement authority that amounts to a dispensing 
Use of the HEROES Act of 2003 to Cancel the Principal Amounts of Student Loans

19

power. See Rubinstein Memorandum at 6–7. To the contrary, the Act’s

clear text authorizes waiver or modification, and this authority extends to 

waiver and modification of the obligation to repay student loan balances.

As a result, cancellation of student loan debt that conforms to the requirements of the HEROES Act, see infra Part III, represents an implementation of the Act and not a suspension of governing law.

III.

We thus conclude that the HEROES Act authorizes the Secretary to 

waive or modify statutory or regulatory provisions in a way that results in 

the reduction or cancellation of student debt. This leaves the question of 

whether the reduction and cancellation of the principal balances of student 

loans as a response to the COVID-19 pandemic, on a categorical basis,

comports with the remaining requirements of the Act. The Act authorizes 

waiver or modification—and thus debt cancellation or reduction—“as the 

Secretary deems necessary in connection with a . . . national emergency 

. . . as may be necessary to ensure that . . . recipients of student financial 

assistance . . . who are affected individuals are not placed in a worse 

position financially in relation to that financial assistance because of their 

status as affected individuals.” 20 U.S.C. § 1098bb(a). This text imposes a 

number of requirements: (1) the beneficiary of the cancellation must be an 

“affected individual”; (2) the harm sought to be avoided must arise “because of” the beneficiary’s status as such an individual; and (3) the Secretary must deem the cancellation “necessary” to “ensure” the beneficiary is 

not placed in a “worse position financially in relation to [the individual’s]

financial assistance.” After considering these requirements, we conclude 

that invocation of the HEROES Act to provide debt reduction or cancellation on a class-wide basis to individuals affected by the COVID-19 national emergency could be structured as a permissible invocation of the 

Act.

A.

The HEROES Act first requires that any beneficiary of a waiver or 

modification be an “affected individual.” As noted earlier, the Act defines 

an affected individual to include any “individual who . . . resides or is 

employed in an area that is declared a disaster area by any Federal, State, 
46 Op. O.L.C. __ (Aug. 23, 2022)

20

or local official in connection with a national emergency” and any individual who “suffered direct economic hardship as a direct result of a . . . 

national emergency, as determined by the Secretary.” Id. § 1098ee(2)(C), 

(D).

In March of 2020, the President declared the COVID-19 pandemic a 

“national emergency.” See Proclamation No. 9994, 85 Fed. Reg. 15,337 

(Mar. 13, 2020); see also 20 U.S.C. § 1098ee(4) (“The term ‘national 

emergency’ means a national emergency declared by the President of the 

United States.”). And the federal government has declared every state, the 

District of Columbia, and all five permanently populated U.S. territories 

to be disaster areas because COVID -19 has spread or is at risk of spreading there. See Federal Emergency Management Agency, COVID-19

Disaster Declarations (last updated Aug. 20, 2021), https://www.fema.

gov/disasters/coronavirus/disaster-declarations. As a result, any person 

who resided or worked in the United States or its territories during the 

pandemic could benefit from waivers or modifications issued under the 

Act as part of the Secretary’s response to COVID-19, as could any person 

the Secretary determines suffered direct economic hardship as a direct 

result of the pandemic.

B.

The HEROES Act further requires that the waiver or modification 

“may be necessary to ensure that . . . affected individuals are not placed in 

a worse position financially in relation to [the individuals’] financial 

assistance because of their status as affected individuals.” 20 U.S.C. 

§ 1098bb(a)(2)(A) (emphasis added). Hence, waivers or modifications of 

the student loan terms for individuals who resided or worked in the United 

States or its territories during the pandemic would be permissible only as 

may be necessary to ensure the individuals are not placed in a “worse 

position financially . . . because of ” the COVID -19 pandemic. Id. (emphasis added).

The term “because of ” typically carries a requirement of but-for causation. See, e.g., Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176 (2009) 

(construing the term “because of” in the Age Discrimination in Employment Act to mean that “a plaintiff must prove that age was the ‘but-for’ 

cause of the employer’s adverse decision”); Univ. of Tex. Sw. Med. Ctr. v. 

Nassar, 570 U.S. 338, 352 (2013) (construing a statute that “makes it 
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21

unlawful for an employer to take adverse employment action against an 

employee ‘because’ of certain criteria” to “require proof that the desire to 

retaliate was the but-for cause of the challenged employment action”); see 

also Comcast Corp. v. Nat’l Ass’n of Afr. Am.-Owned Media, 140 S. Ct. 

1009, 1016 (2020) (the phrase “because of ” is “often associated with butfor causation”). In the absence of any statutory indication to the contrary, 

we believe that the term “because of ” in the HEROES Act carries with it 

the usual requirement of but-for causation. Thus, to invoke the HEROES 

Act in the context of COVID-19, the Secretary would need to determine 

that the COVID-19 pandemic was a but-for cause of the financial harm to 

be addressed by the waiver or modification.

C.

Finally, the HEROES Act authorizes waivers and modifications “as 

may be necessary” to “ensure” that recipients of financial assistance, 

because of their status as affected individuals, “are not placed in a worse 

position financially in relation to that financial assistance.” 20 U.S.C. 

§ 1098bb(a)(2)(A). This provision provides additional direction for the 

Secretary’s exercise of this authority in two respects: First, waivers or 

modifications under the Act should be structured to put loan recipients 

back into the financial position they would be in were it not for the national emergency—that is, to offset the borrower’s harm by providing the

relief that may be necessary to ensure the borrower is no “worse” off

because of the emergency. Second, no matter how much financial harm a 

borrower may have suffered because of a national emergency, the Secretary can use the HEROES Act only to offset that portion of the harm that 

has a “relation to” the borrower’s title IV assistance.

D.

Within these parameters, we believe the HEROES Act authorizes the 

Secretary to determine that cancellation ofstudent debt is warranted under 

the waiver and modification authority as a response to the COVID -19

pandemic. We also believe that affording this relief on a broad, categorical basis could be an appropriate invocation of the Act. We reach these

conclusions for several reasons.
46 Op. O.L.C. __ (Aug. 23, 2022)

22

First, section 1098bb(a)(1) provides that the Secretary may waive or 

modify provisions “as the Secretary deems necessary . . . to provide the 

waivers or modifications authorized by paragraph (2).” 20 U.S.C. 

§ 1098bb(a)(1) (emphasis added). Courts have time and again recognized 

that statutes using “the word ‘deem’ . . . give [an agency] discretion to 

determine” whether statutory requirements are met. See, e.g., Mehanna v. 

U.S. Citizenship & Immigr. Servs., 677 F.3d 312, 315 (6th Cir. 2012)

(quotation marks omitted); Ghanem v. Upchurch, 481 F.3d 222, 225 (5th 

Cir. 2007) (“We interpret the phrase ‘for what he deems’ as vesting complete discretion in the Secretary[.]”). Indeed, the Supreme Court has found 

that a textually similar grant of power—to take actions an official 

“deem[ed] . . . necessary or advisable”—conferred authority that was 

“committed to agency discretion by law” and so was beyond the scope of 

judicial review. Webster v. Doe, 486 U.S. 592, 600 (1988) (emphasis and 

quotation marks omitted).

Second, the statute reinforces this grant of discretion by authorizing the 

Secretary to waive or modify provisions “as may be necessary.” 20 U.S.C. 

§ 1098bb(a)(2) (emphasis added). In the context of a statute conferring 

authority on an officer, this phrase, too, is regularly construed as a grant 

of “legitimate discretionary power.” See, e.g., City of New York v. FCC, 

486 U.S. 57, 67 (1988) (holding that the phrase “may be necessary” 

confers “legitimate discretionary power” on the agency); Holy Cross 

Hosp.-Mission Hills v. Heckler, 749 F.2d 1340, 1343 (9th Cir. 1984) 

(statute authorizing an agency to “prescribe such regulations as may be 

necessary to carry out the administration” of a statutory program 

“grant[ed] . . . broad discretionary power” (quotation marks omitted)).

Third, we do not believe the statute’s use of the word “necessary,” 20 

U.S.C. § 1098bb(a), significantly curtails the scope of the Act. The term 

“necessary” may bear a range of meanings. “In the strictest sense of the 

term, something is ‘necessary’ only if it is essential.” Ayestas v. Davis, 

138 S. Ct. 1080, 1093 (2018). But necessary can also mean simply that 

something is “reasonably and logically” related to achieving a certain end, 

see FTC v. Rockefeller, 591 F.2d 182, 188 (2d Cir. 1979), or even “helpful and appropriate,” see Davis, 138 S. Ct. at 1093; accord, e.g., United 

States v. Comstock, 560 U.S. 126, 133–34 (2010) (observing that the 

Necessary and Proper Clause allows for laws that are “‘convenient, or 

useful’” or “‘conducive’” to the exercise of enumerated powers (quoting 
Use of the HEROES Act of 2003 to Cancel the Principal Amounts of Student Loans

23

M’Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 413, 418 (1819))); 

Cellco P’ship v. FCC, 357 F.3d 88, 97 (D.C. Cir. 2004) (“courts have 

long recognized that the term ‘necessary’ does not always mean ‘indispensable’ or ‘essential’”).

Here, several contextual clues indicate that Congress used the word 

“necessary” in a more flexible and capacious sense, as meaning “appropriate” or “conducive” rather than “essential.” As an initial matter, the 

fact that Congress granted the Secretary discretion to “deem” whether a 

waiver or modification “may be” necessary signals that Congress understood the word to authorize a range of possible actions, not merely the 

narrowest possible course. And the Act’s empowering of the Secretary to 

use the waiver and modification authority “to ensure that” the Act’s 

statutory objectives are achieved, 20 U.S.C. § 1098bb(a)(2), further signals that Congress intended to give the Secretary leeway. The use of the 

term “ensure” conveys the understanding that Congress was concerned

with “making certain” that the objectives listed in section 1098bb(a)(2) 

are achieved, rather than with limiting the Secretary to only those waivers 

and modifications that are strictly essential. See Ensure, MerriamWebster’s Dictionary, https://www.merriam-webster.com/dictionary/

ensure (last visited Aug. 21, 2022) (defining “ensure” as meaning “to 

make . . . certain”).

That Congress did not expect a closely tailored fit between the Secretary’s exercise of the waiver-and-modification authority and the Act’s 

objectives is also evident from the Act’s instructions on the manner in 

which the Secretary can exercise the waiver or modification authority.

The Act states that the Secretary need not exercise the waiver or modification authority “on a case-by-case basis,” 20 U.S.C. § 1098bb(b)(3), 

thereby authorizing the Secretary to proceed by categorical rules, even 

though categorical rules by their nature entail a degree of imprecision. See 

Matrixx Initiatives, Inc. v. Siracusano, 563 U.S. 27, 39 (2011) (noting that 

any “bright-line rule . . . must necessarily be overinclusive or underinclusive” (quotation marks omitted)). In like vein, section 1098bb(a)(2)(B)

authorizes the Secretary to minimize “administrative requirements placed 

on affected individuals,” provided “the integrity of the student financial 

assistance programs” is not “impair[ed].” Thus, in the context of relief for 

borrowers affected by COVID -19, the Secretary might conclude that 

relief should be afforded through an individualized application process in 
46 Op. O.L.C. __ (Aug. 23, 2022)

24

which borrowers could demonstrate that they suffered financial harm from 

the pandemic; but the Secretary could also conclude that such burdensome 

procedures would not achieve the goal of minimizing the administrative 

requirements placed on affected individuals, and that waivers and modifications should instead be issued on an administratively convenient categorical basis.

Fourth, past administrative practice is also consistent with the view that 

the Secretary has flexibility in determining how best to achieve the purposes of the Act. The Secretary has repeatedly interpreted the statutory 

term “necessary” as equivalent to “appropriate,” rather than “essential.”

See 68 Fed. Reg. at 69,312–13 (adopting waivers and modifications “that 

the Secretary believes are appropriate to ensure” certain objectives (emphasis added)); 77 Fed. Reg. at 59,312 (same). And every invocation of 

the HEROES Act to date has included expansive relief that was to some 

degree overinclusive of the statute’s purposes. For instance, as discussed 

above in Part I.C, the Secretary’s 2003 rulemaking waived a series of 

administrative requirements for every affected individual, even though the 

rationales for many of those waivers applied to only a subset of affected 

individuals. The Secretary’s 2012 rulemaking extended those broad waiver provisions and added a new one. And, most notably, the Secretary’s 

2020 actions suspended the obligation to pay student debt for every student loan held by the United States, even though such relief undoubtedly 

was not necessary to avoid financial harm for some of the suspension’s 

beneficiaries. These applications of the Act—two of which were implicitly approved by Congress—plainly reflect an understanding that the statute 

affords flexibility for the Secretary to enact prophylactic waivers and 

modifications that extend beyond the particular hardship they aim to 

prevent.

IV.

For the reasons set forth above, we conclude that the Secretary can exercise the waiver or modification authority granted by the HEROES Act 

of 2003 to reduce or cancel the principal balances of student loans, provided the Secretary deems the reduction or cancellation necessary to

ensure that affected individuals are not placed in a worse position financially in relation to their financial assistance because of their status as 

affected individuals. We further conclude that reducing or canceling the 
Use of the HEROES Act of 2003 to Cancel the Principal Amounts of Student Loans

25

principal balances of student loans, including for a broad class of borrowers who the Secretary determines suffered financial harm because of 

COVID-19, could be a permissible response to the COVID-19 pandemic.

CHRISTOPHER H. SCHROEDER

Assistant Attorney General

Office of Legal Counsel