(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
ob ligation to repay the principal balance of federal student loan debt, includin g on a class

- wide basis in response to the COVID

- 19 pandemic, provided all other requirements of the statute are satisfied.

August 2 3 , 202 2

M EMORANDUM O PINION FOR THE G ENERAL C OU NSEL
D EPARTMENT OF E DUCATION

T he 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 emergenc ies

. The Act provides that the Secretary

may “waive or modify any statutory or regulatory provision applicable to ” federal student loan program s if the Secretary “deems” such actions “necessary to ensure that ” certain statutory objectives are achieved. 20
U.S.C. § 1098bb(a)(1)

– (2)

. O ne of those obj ectives 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 th is authority in response to the COVID

- 19 pandemic to suspend the repaym ent 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). P rior Secretaries have exercis ed the same authority to categorically waive statutory and regulatory obligations for borrower s resi ding 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 emerge ncy

. 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).4 6 Op. O.L.C. __ ( A ug

. 24

, 202 2 )

2 You have asked whether the HEROES Act authorizes the Secretary to
address the financia l hardship arising out of the COVID

- 19 pandemic by reducing or cancel ing the principal balance s of student loan s for a broad
class of borrowers

. We conclude that the Act grants that authority

. T he plain text of the HEROES Act authorizes the Secretary to “ waive or modify any statutory or regulatory provision applicable to” th e 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 balance s of loans, provi ded certain conditions are met. W e 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 mod ification “be necessary to ensure that ” student l oan 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 re lief in these circumstances is appropriate

.

I

.

A.

The federal government administers three student loan programs. Underthe William D. Ford Federal Direct Loan Program, the federal government makes loans direc tly to borrowers, who are then responsible for repaying the government. See 20 U.S.C. § § 1087a

– 1087j. Un der theFederal Family Education Loan (“FFEL”) Program and the Federal Perkins Loan Program, loans are made by private or state

- based lenders,
includin g 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 pursua nt to those programs
remain outstanding

. See Health Care and Education Reconciliation Act of 2010, P ub

. 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 quar ter of 2022

, about 43.0 million borrowers had loans under the three federal student loan programs, and their debts collectively amount ed to approximately $1. 6 2 trillion. See U.S. Dep’t ofUse 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. 2 1 , 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 amend ed at 20 U.S.C. § § 1070 et seq. ) (“HEA”). That title specifies the terms and conditions of ea ch type offederal 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 pro visions allowing for the cancellation of student loans in certain circumstances, such as wh e n 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 pro visions 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 th e 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 d ischarges); 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 terroris t attacks of September 11, that statute was intended to “pro vide 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 Sep tember 11 and any subsequent terrorist attacks

. Id. at 23 86, 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 gr ants the Secretary4 6 Op. O.L.C. __ ( A ug

. 24

, 202 2 )

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 :

N otwithstanding 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]

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

.
Id. T he 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. § 1098b b(a)(2)(A). Several provisions of the Act underscore the breadth of the Secretary’s
waiver and modificatio n power. T he 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 pu rposes 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

. . . o n a case

- by

- case basis.” Id. § 1098bb(b)(3). And the Secretary is exempt from otherwise

- applicable procedural requirements that would delay the i mplementation 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 suffer ed hardship as a result of September 11 or other terror ist attacks

. The Act instead applies

to any p reside ntially 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 qualify ingUse of the HEROES Act of 2003 to Cancel the Principal Amounts of Student Loans

5 National Guard duty ” “ during a

. . . national emer gency , ” as those term s

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 w ho “suffered direct economic hardship
as a direct resu lt 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 Secretar y’s authority for two years

. Pub. L. No.
109

- 78, 119 Stat. 2043. I n 2007, it made the Act perman ent. Pub. L. No.
110

- 93, 121 Stat. 999. In making the Act permanent , Congress stated its “sense” that the Act “addresses the unique situation s that active duty military personnel and other affected individuals may face” and that “the provisions authorize d by such Act should be made permanent, thereby allowing the Secretary of Education to continue providing assistance to active duty service members and other affe cted 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 recipie nts. In 2003, the Secretary issued a series of more than a dozen waivers and modifications, m ost 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 modif ications included alterations to the requirements for loan deferrals, extensions of the max imum period of loanforbearance for Perkins loans, and waivers of the requirement that students return overpayments of certain grant funds. Id. The Secretary extende d 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 999.4 6 Op. O.L.C. __ ( A ug

. 24

, 202 2 )

6 In 2012, the Secretary updated the waivers and modi fications issued in 2003 to account for intervening change s in the HEA and its impleme nting 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 retai ned 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 exte nded these waivers and modificati ons 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 COVI D

- 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/ f sa

- 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 Sta t. 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 req uir ements 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 eva luate d 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

7 n. 107 ( updated Feb. 28

, 202 2 )

, 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 borro wers with discharged loans to e nsure 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 waiv ers 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 Balan ce Cancellation, Compromise, Disch arge, and Forgiveness Authority (Jan. 12, 2021) (“Rubinstein Memorandum”). This m emorandum stated that the Secretary’s prior exercises of waiver and modification authority during the COVID

- 19 pandemic were “appropriate.” Id. at 1. But it expresse d the vie w that
neither the HEA nor the HEROES Act authorize s the Secretary to “cancel, compromise, discharge, or forgive, on a blan ket 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 characterize d the Act ’s authority as “limited,” allowing only for
waivers and modification s designed “ to p ut

. . . ‘ af fected individuals ’

. . . in the same position financially in relation to their [student] loans as if the national emergency had not occurred

. ” Id. at 6. It note d that the Act makes references to “discharge [ s ] ” and “return [ s ] ,” which it understood to indic ate that “Congress inte nded loans to be repaid.” Id. And it interpret ed the statutory term “modify” to mean “ ‘ to change moderately or in minor4 6 Op. O.L.C. __ ( A ug

. 24

, 202 2 )

8 fashion.’” Id. (quoting MCI Telecomm c’n s Corp. v. Am. Tel

. & Tel

. Corp.

, 512 U.S. 218, 225 (1994)). More broadly, the m emorandum sug gest ed 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 t he HEA and would “ transform[ the ] carefully
cabin ed HEA settlement authority into a general administrative dispensing

power. ” I d . 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 bal ance of student loan debt on a broad and categorical basis
in connection with the COVID

- 19 pandemic. Your reques t encompasses two questions. First, we must resolve whether the Act permits the Secretary to waive or modify the obligation to repay the princi pal balance of
student loan debt. Second, if so, we must determine whether broad and categorical reduction or c ancellation 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 , whe n all other statutory requirements are
met, the HEROES Act grants the Secretary authority to reduce or eliminate the obligation to repay the principal b alance of student loan debt. We
conclude that it does. By its plain text, the HEROES Act authorizes the
Sec retary 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 regula tory provisions, see infra Part
II.A.1

, the HEROES Act enables the Secretary to reduce or eliminate that obligation through waiver or modification of t hose provisions. The surrounding clauses of the statute confirm the scope of that authority. And
we fin d 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

9 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 progr ams under tit le 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 contai ns three cla uses

. 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] .” T hat grant of authority is preceded by a notwithstanding clause, which provides that the Secretary may invoke t his 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 auth orized 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

s et 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 ful l am ount 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

t itle I V ” be cause they direct how financial assistance provided under title IV should be repaid. See Applicable , Black’s Law Dictionary (11th ed.4 6 Op. O.L.C. __ ( A ug

. 24

, 202 2 )

10 2019) (defining “applicable” as “affecting or relating to a particular person, group, or situation; having direct re levanc e”).

T he Secretary may accomplish the cancellation or reduction of stu

dent 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 E nglish D ictionary, https:// www. oed. com/ view/ Entry/ 225159 (last visited Aug. 2 1 , 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 for go”). 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 Secret ary would eliminate an indi vidual ’ s duty to comply with those obligations.

T he 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 red uce in degree or extent.” Mo dify , 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 T hat

1 Statute s frequently us e the term “waive” in this manner. See, e.g. , 8 U.S.C. § 1187 (authorizing the Secretary of Homeland Security to “waive” visa requireme nts on a class

wide basis for all foreign nationals coming from designated countries); 10 U.S. C. § 1408(a)(4)(A)(ii) (per mitting 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 hea lth care services during national emergencies); 20 U.S.C. § 10012(a)

– (b) (permitting the Secretary of Education to “waive or m odify any [financial effort] requirement” of the Individuals with Disabilities Education Act for “fisca l year 2009,

. . . 2010,

or

. . . 2011”); 50 U.S.C. § 1701 (permitting the President to waive indefinitely sanctions on foreign persons responsible for t he use of civilians as human shields); 20 U.S.C. § 7861(a) (permitting the Secretary of Education to wa ive requirements that the N o Child Left Behind Act imposes on federal education subsidies); 42 U.S.C. § 18052(a)(1)

– (2) (permitting the Secretaries of He alth and Human Services and of the Treasury to waiveAffordable Care Act health care insurance exchange requirements, minimum plan coverage requirements, and individual mandates upon s tate request).Use of the HEROES Act of 2003 to Cancel the Principal Amounts of Student Loans

11 Substantially Modify the United States’ Obli gations 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 o f “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 statutor y scheme as a whole. MCI , 512 U.S. at 226; see also Caraco Pharm

. La bs., 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, 5 7 5 (“a word is known by the c ompany it keeps”). The term “modify” appears as part of the phrase “waive or modify.” 20 U.S.C. § 1098bb(a)(1). And a s just noted, the term “waive” confers the power to
excuse an indi vidual from legal obligations in their entirety. I n that light,
it seems clearly wrong to interpret the neighboring term “modify” as limited to authorizing the Secretary to mak e 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 bo th 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 wo uld require repayment only of a portion of a loan. Or the Secretary could cha nge 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 Y ou have advised us that these changes

— in addition to v itiating any statutory or regulatory obligation of repayment

— would nullify any contractual requirement for repay-4 6 Op. O.L.C. __ ( A ug

. 24

, 202 2 )

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 red uce 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 “notwithstandi ng ” “ 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 signa ls the drafter’s i ntention 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 tak es 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 Secret ary’s authority to w aive 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 sec tion. And we know of n o 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 modi fy 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 s ubject 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 Educ ation

, 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

13 which the Secretary may exer cise the waiver and modification authority.
See i d. § 1098bb(b)(1). T hese 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 obligati on 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

u nable to work was “not plac ed 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 har m suffered by borrower s 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 t hink this

sor t 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
th is textual evidence in its cursory analysis of the HEROES Act

. The

m emorandum failed to consider the implications of the fact that the statute gran ts the Secretary authority both to “waive” and to “modify” provisions of law. Cf. Rubinstein Memorandum at 6 (considering solely
the word “modi fy”). The m emorandum also did not acknowledge thestatute’s “notwithstanding” clause or consider whether that clause forecloses the negative inference the m emorandum proposes to draw from provisions of the HEA that authorize cancel l ation of loan principal in
different situations

. See id. at 6

– 7. Indeed, the m emorandum failed evento acknowledge the simple textual point that the statute grants the Secretary authority to waive or modify “ any statutory or regulatory provision applicable to the st udent financi al assistance programs under title IV of the Act,” 20 U.S.C. § 1098bb(a)(1) (emphasis added), and that the stat-4 6 Op. O.L.C. __ ( A ug

. 24

, 202 2 )

14 utes and regulations imposing the obligation to repay student loans are examples of such provisions.

The textual evidence that the Rubinstein Me morandum 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 aut hority is limi ted

. . . to the waiver or modification of statutory requirements” to achieve the objectives set forth in section 1098bb(a)(2). Rubinstein
Memorandum at 6. The m emorandum, however, did not explain why the
elimination or reduction of student loan debt canno t 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, disc harge, or forgiven ess of student loan principal balances” in the HEA precludes the Secretary from exercising the waiver and modification authority to cancel
student loan debt. Rubinstei n Memorandum at 6 (pointing to provisions that provide for loan cancel lation or forgivene ss in certain defined circumstances )

. Invoking the canon that “the specific governs the general,” the memorandum suggest ed that these provisions set forth the exclusive circumstances in which the Secretary may cancel student loan debt and
thus implicitly b ar the Secretary from invoking section 1098bb(a)(1) or other HEA authorities for that same purpose. Id. at 3

– 4 , 6

– 7

. T he notwithstanding clause , however, cautions against inferring that Congress silently precluded use of section 1098bb to cancel student de bt 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 lim ited set of circumstances ( when there is a “war or other military operation or national emergency

, ” 20 U.S.C. § 1098bb(a)(1) ), and it authoriz es relief only for a defined class of individuals affected by those emergencies

, i d. § 1098ee(2) (defining the ter m “affected individual”)

, to accomplish limited objective s 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 aut hority in the HEROES Act is more general than the provisions authorizing stude nt debt relief in non

- emergencyUse 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 m emorandum further argue d that Congress’s references to “defaults” and “return[s]” of student loan fund s 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. B ut s ection 1098bb(a)(2)(B) lists the avoidance of “defaults” as part of a l arger 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 sever al 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 s ection
10 98bb(a)(2 )(D) simply authorizes waivers and modifications “to ensure
that

. . . the amount a student is required to return may be modified so thatno overpayment will be required to be returned or repaid” if certain conditions are satisfied. We see nothin g 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 suggest ed 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.’” R ubinstein Me morandum at 2

3 Consider, for example, the statutory pr ovision 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
estimat ed that six million borrowers would be el igible 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,
201 5). 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, 20 18 )

, https://crsreports.congress.g ov/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 stu dent loan debt may actually sweep much more broadly than an application of the HEROES Act.4 6 Op. O.L.C. __ ( A ug

. 24

, 202 2 )

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 regulato ry 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 sweep ing 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) (e mphases added). It confers that auth ority to enable the Secretary to actin times of “national emergency,” when significant actions with potentially far

- reaching consequences are often required. Id. And it expressly contemplates that the Secretary may e xercise this authority to impose new

re quirements “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 ad ministrative 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.

T he legislative history of the HEROES Act indicate s that Members of Congress understood the breadth of the authority they were providing the Secretary. S ome Members emphasized that the Act would provide theauthority “to act quickly should a situation arise that has not been considered,” 149 Cong. Rec. 7 923 (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 c ancel or reduce certain amounts of
student loan debt.Use of the HEROES Act of 2003 to Cancel the Principal Amounts of Student Loans

17 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 mak e it clear to the Secretary that

. . . in the case of a national emergency that he can, in fact, defer these paym ents.” (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 accomplis h the objectives of the Act

. An alternative explanation is that they simply did not focus on this particular appli cation 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 cancel ing debt if the Secretary
“deems” such reductions o r cancellat ions “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 tha t wo uld undermine our interpretation

. As noted above, see supra Part I. C , t he Secretary
has invoked the authority under s ection 1098bb(a)(1) a number of times
since the statute’s enactment in 2003

. One of these invocations

, the expansion of eligibility for b orrower defenses to repayment

, will almost certainly reduce the amount of principal repaid by borrowers

. S ee 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 Sec retary on the loan at issue ” (emphasis added) ). Other invocations

— such as suspending interest accrual and repayment obligations in response to the4 6 Op. O.L.C. __ ( A ug

. 24

, 202 2 )

18 COVID

- 19 pandemic

, see 85 Fed. Reg. at 79,862

— entailed the waiver or
modification o f 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 obliga tion 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

n either the Secretary nor Congress indicated that th ese 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 Secreta ry w ould continue to carry them out. See CARES Act § 3513 (a), (b) , 134 S tat. 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 su spend loan payments and to set interest rates to zero ). Even if the direc t 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 respon d 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 C lause

. 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 invo lve s an impermissible exercise of settlement authority that amounts to a dispensingUse of the HEROES Act of 2003 to Cancel the Principal Amounts of Student Loans

19 power

. See Rubinstein Memorandu m at 6

– 7. To the contrary, the Act’s
clear text authorizes waiver or modification , and this authority extends to
waiver and modification of t he 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 thu s 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 balance s of student
loans as a response to the COVID

- 19 pandemic , on a categorical basis, comports with the remaining requirements of the Act

. T he Act authorizes
waiver or modification

— and thus debt cancellation or reduction

— “as the Secretary de ems 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 fina ncial assistance because of their
status as affected individuals.” 20 U.S.C. § 1098bb(a). This tex t 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 canc ellation “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 th e 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 de clared a disaster area by any Federal, State,4 6 Op. O.L.C. __ ( A ug

. 24

, 202 2 )

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

. § 1098 ee(2)(C)

, (D)

. In March of 2020, t he 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 State s.”). And the federal government has declared every s tate, the District of Columbia, and all five permanently populated U.S. territories
to be disaster areas because COVID

- 19 ha s 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/ disaste r

- declarations

. As a result, an y person who reside d or work ed in the United States or its territories during the pandemic could benefit from waivers or modifications issued under the
Ac t as part of the Secretary’s response to COVID

- 19 , as could any perso n the Secretary determines suffe red 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 positi on 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 w orked 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 o f ” the COVID

- 19 pandemic. Id. (emphasis added).

The t erm “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 t hat 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 itUse of the HEROES Act of 2003 to Cancel the Principal Amounts of Student Loans

21 unlawful for an employer to take adverse employment action against an employee ‘becau se’ 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 “o ften associated with but

for 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
A ct 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

m ay be nec essary” 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 ad ditional 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 emer gency

— 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 mat ter how much financial harm a borrower may have suffered because of a national emerg ency, 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 of student 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
conclusio n s for several reasons.4 6 Op. O.L.C. __ ( A ug

. 24

, 202 2 )

22 First, section 1098bb(a)(1) provides that the Secretary may waive or modify provisions “ as the Secretary deems necessary

. . . to provi de 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 requirem ents 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 off icer, 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); H oly 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 pow er” (quotation marks omitted) ).

Third , we do not believe the statute’s use of the word “necessary,” 20
U.S.C. § 1098bb(a), significantly cu rtails the scope of the Act

. The term “necessary” may bear a range of meanings

. “I n 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.

, Un ited
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 (quotingUse 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 C ongress granted the Secretary dis cretion to “deem” whether awaiver 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 th e understanding that Congress was concern ed 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 , Mer r iam

Webster’s Dictionary, https:// www. merriam

- webster. com/ dictionary/

ensure (last visited Aug. 2 1 , 2022) (defining “ensure” as meaning “to
make

. . . certain” )

. That Congress did n ot expect a closely tailore d fit between the Secretary’s exercise of the waiver

- and

- modification authority and the Act’s objectives is also evident from th e Act’s instructions on the manner in which the Secretary can exercise the waiver or m odifica ti on aut hority.
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 i mprecision. 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 mark s omitted)). In like vein, section 1098b b(a)(2)(B)
authorizes the S ecretary 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 b y COVID

- 19 , the Secretary might conclude that relief should be afforded through an individualized application process in4 6 Op. O.L.C. __ ( A ug

. 24

, 202 2 )

24 which borrowers could demonstrate that they suffered financial harm from the pandemic; but t he Secretary could also conclude that such burdensome procedures woul d not achieve the goal of minimizing the administrativerequirements placed on affected individuals, and that waivers and modifications should instead be issued on an administratively con venient categorical basis. Fourth, p ast ad ministrative practice is al so consistent with the view thatthe Secretary has flexibility in determining how best to achieve the purposes of the Act

. T he Secretary has repeatedly interpreted the statutory

term “necessary” as equivalent to “appropriate ,” ra ther 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 (sa me). 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
administra tive 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 impl icitly 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 hardsh ip they aim to prevent.

IV.

For the reasons set fort h above, we conclude that t he Secretary can exercise the waiver or modification authority granted by the HEROES Actof 2003 to reduce or cancel the principal balances of student loans, provided the Secret ary deems the reduction or cancellation necessary to
ensure that affected indiv iduals 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 reduci ng or cancel ing theUse of the HEROES Act of 2003 to Cancel the Principal Amounts of Student Loans

25 principal balances of student loa ns, including for a broad c lass 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
Assista nt Attorney General

Office of Legal Couns el