(Slip Opinion) OCTOBER TERM, 2022 1 

Syllabus 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is 

being done in connection with this case, at the time the opinion is issued. 

The syllabus constitutes no part of the opinion of the Court but has been 

prepared by the Reporter of Decisions for the convenience of the reader. 

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 

SUPREME COURT OF THE UNITED STATES 

Syllabus 

BIDEN, PRESIDENT OF THE UNITED STATES, ET AL. 

v. NEBRASKA ET AL. 

CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES 

COURT OF APPEALS FOR THE EIGHTH CIRCUIT 

No. 22–506. Argued February 28, 2023—Decided June 30, 2023 

Title IV of the Higher Education Act of 1965 (Education Act) governs

federal financial aid mechanisms, including student loans. 20 U. S. C. 

§1070(a). The Act authorizes the Secretary of Education to cancel or 

reduce loans in certain limited circumstances. The Secretary may cancel a set amount of loans held by some public servants, see §§1078–10,

1087j, 1087ee. He may also forgive the loans of borrowers who have 

died or become “permanently and totally disabled,” §1087(a)(1); borrowers who are bankrupt, §1087(b); and borrowers whose schools 

falsely certify them, close down, or fail to pay lenders. §1087(c). 

The issue presented in this case is whether the Secretary has authority under the Higher Education Relief Opportunities for Students

Act of 2003 (HEROES Act) to depart from the existing provisions of the

Education Act and establish a student loan forgiveness program that

will cancel about $430 billion in debt principal and affect nearly all 

borrowers. Under the HEROES Act, the Secretary “may waive or modify any statutory or regulatory provision applicable to the student financial assistance programs under title IV of the [Education Act] as 

the Secretary deems necessary in connection with a war or other military operation or national emergency.” §1098bb(a)(1). As relevant 

here, the Secretary may issue such waivers or modifications only “as 

may be necessary to ensure” that “recipients of student financial assistance under title IV of the [Education Act affected by a national emergency] are not placed in a worse position financially in relation to that

financial assistance because of [the national emergency].” 

§§1098bb(a)(2)(A), 1098ee(2)(C)–(D). 

In 2022, as the COVID–19 pandemic came to its end, the Secretary 
 

 

 

 

 

2 BIDEN v. NEBRASKA 

Syllabus 

invoked the HEROES Act to issue “waivers and modifications” reducing or eliminating the federal student debt of most borrowers. Borrowers with eligible federal student loans who had an income below 

$125,000 in either 2020 or 2021 qualified for a loan balance discharge 

of up to $10,000. Those who previously received Pell Grants—a specific type of federal student loan based on financial need—qualified for

a discharge of up to $20,000. 

Six States challenged the plan as exceeding the Secretary’s statutory authority. The Eighth Circuit issued a nationwide preliminary 

injunction, and this Court granted certiorari before judgment. 

Held: 

1. At least Missouri has standing to challenge the Secretary’s program. Article III requires a plaintiff to have suffered an injury in 

fact—a concrete and imminent harm to a legally protected interest,

like property or money—that is fairly traceable to the challenged conduct and likely to be redressed by the lawsuit. Lujan v. Defenders of 

Wildlife, 504 U. S. 555, 560–561. Here, as the Government concedes, 

the Secretary’s plan would cost MOHELA, a nonprofit government corporation created by Missouri to participate in the student loan market, 

an estimated $44 million a year in fees. MOHELA is, by law and function, an instrumentality of Missouri: Labeled an “instrumentality” by

the State, it was created by the State, is supervised by the State, and

serves a public function. The harm to MOHELA in the performance of

its public function is necessarily a direct injury to Missouri itself. The 

Court reached a similar conclusion 70 years ago in Arkansas v. Texas, 

346 U. S. 368. 

The Secretary emphasizes that, as a public corporation, MOHELA 

has a legal personality separate from the State. But such an instrumentality—created and supervised by the State to serve a public function—remains “(for many purposes at least) part of the Government 

itself.” Lebron v. National Railroad Passenger Corporation, 513 U. S. 

374, 397. The Secretary also contends that because MOHELA can sue 

on its own behalf, it—not Missouri—must be the one to sue. But where 

a State has been harmed in carrying out its responsibilities, the fact 

that it chose to exercise its authority through a public corporation it

created and controls does not bar the State from suing to remedy that

harm itself. See Arkansas, 346 U. S. 368. With Article III satisfied, 

the Court need not consider the States’ other standing arguments. Pp.

7–12. 

2. The HEROES Act allows the Secretary to “waive or modify” existing statutory or regulatory provisions applicable to financial assistance programs under the Education Act, but does not allow the Secretary to rewrite that statute to the extent of canceling $430 billion of

student loan principal. Pp. 12–26. 
 

 

 

 

 

 

 

 

Cite as: 600 U. S. ____ (2023) 3 

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(a) The text of the HEROES Act does not authorize the Secretary’s 

loan forgiveness program. The Secretary’s power under the Act to 

“modify” does not permit “basic and fundamental changes in the 

scheme” designed by Congress. MCI Telecommunications Corp. v. 

American Telephone & Telegraph Co., 512 U. S. 218, 225. Instead, 

“modify” carries “a connotation of increment or limitation,” and must 

be read to mean “to change moderately or in minor fashion.” Ibid. 

That is how the word is ordinarily used and defined, and the legal definition is no different. 

The authority to “modify” statutes and regulations allows the Secretary to make modest adjustments and additions to existing provisions, 

not transform them. Prior to the COVID–19 pandemic, “modifications”

issued under the Act were minor and had limited effect. But the “modifications” challenged here create a novel and fundamentally different 

loan forgiveness program. While Congress specified in the Education 

Act a few narrowly delineated situations that could qualify a borrower 

for loan discharge, the Secretary has extended such discharge to nearly

every borrower in the country. It is “highly unlikely that Congress”

authorized such a sweeping loan cancellation program “through such

a subtle device as permission to ‘modify.’” Id., at 231. 

The Secretary responds that the Act authorizes him to “waive” legal

provisions as well as modify them—and that this additional term 

“grant[s] broader authority” than would “modify” alone. But the Secretary’s invocation of the waiver power here does not remotely resemble how it has been used on prior occasions, where it was simply used 

to nullify particular legal requirements. The Secretary next argues 

that the power to “waive or modify” is greater than the sum of its parts: 

Because waiver allows the Secretary “to eliminate legal obligations in

their entirety,” the combination of “waive or modify” must allow him 

“to reduce them to any extent short of waiver” (even if the power to

“modify” ordinarily does not stretch that far). But the challenged loan 

forgiveness program goes beyond even that. In essence, the Secretary

has drafted a new section of the Education Act from scratch by “waiving” provisions root and branch and then filling the empty space with 

radically new text. 

The Secretary also cites a procedural provision in the HEROES Act

directing the Secretary to publish a notice in the Federal Register, “includ[ing] the terms and conditions to be applied in lieu of such statutory and regulatory provisions” as the Secretary has waived or modified. §1098bb(b)(2). In the Government’s view, that language

authorizes both “waiving and then putting [the Secretary’s] own requirements in”—a sort of “red penciling” of the existing law. But rather than implicitly granting the Secretary authority to draft new substantive statutory provisions at will, §1098bb(b)(2) simply imposes the 
 

 

 

 

 

 

4 BIDEN v. NEBRASKA 

Syllabus 

obligation to report any waivers and modifications he has made. The 

Secretary’s ability to add new terms “in lieu of” the old is limited to his

authority to “modify” existing law. As with any other modification issued under the Act, no new term or condition reported pursuant to 

§1098bb(b)(2) may distort the fundamental nature of the provision it

alters. 

In sum, the Secretary’s comprehensive debt cancellation plan is not 

a waiver because it augments and expands existing provisions dramatically. It is not a modification because it constitutes “effectively the 

introduction of a whole new regime.” MCI, 512 U. S., at 234. And it 

cannot be some combination of the two, because when the Secretary 

seeks to add to existing law, the fact that he has “waived” certain provisions does not give him a free pass to avoid the limits inherent in the 

power to “modify.” However broad the meaning of “waive or modify,” 

that language cannot authorize the kind of exhaustive rewriting of the

statute that has taken place here. Pp. 13–18. 

(b) The Secretary also appeals to congressional purpose, arguing 

that Congress intended “to grant substantial discretion to the Secretary to respond to unforeseen emergencies.” On this view, the unprecedented nature of the Secretary’s debt cancellation plan is justified by

the pandemic’s unparalleled scope. But the question here is not 

whether something should be done; it is who has the authority to do it. 

As in the Court’s recent decision in West Virginia v. EPA, given the 

“‘history and the breadth of the authority’” asserted by the Executive 

and the “ ‘economic and political significance’ of that assertion,” the 

Court has “ ‘reason to hesitate before concluding that Congress’ meant 

to confer such authority.” 597 U. S. ___, ___ (quoting FDA v. Brown & 

Williamson Tobacco Corp., 529 U. S. 120, 159–160). 

This case implicates many of the factors present in past cases raising similar separation of powers concerns. The Secretary has never 

previously claimed powers of this magnitude under the HEROES Act;

“[n]o regulation premised on” the HEROES Act “has even begun to approach the size or scope” of the Secretary’s program. Alabama Assn. 

of Realtors v. Department of Health and Human Servs., 594 U. S. ___, 

___ (per curiam). The “ ‘economic and political significance’ ” of the Secretary’s action is staggering. West Virginia, 597 U. S., at ___ (quoting 

Brown & Williamson, 529 U. S., at 160). And the Secretary’s assertion 

of administrative authority has “conveniently enabled [him] to enact a 

program” that Congress has chosen not to enact itself. West Virginia, 

597 U. S., at ___. The Secretary argues that the principles explained 

in West Virginia and its predecessors should not apply to cases involving government benefits. But major questions cases “have arisen from 

all corners of the administrative state,” id., at ___, and this is not the 

first such case to arise in the context of government benefits. See King 
 

 

Cite as: 600 U. S. ____ (2023) 5 

Syllabus 

v. Burwell, 576 U. S. 473, 485. 

All this leads the Court to conclude that “[t]he basic and consequential tradeoffs” inherent in a mass debt cancellation program “are ones

that Congress would likely have intended for itself.” West Virginia, 

597 U. S., at ___. In such circumstances, the Court has required the

Secretary to “point to ‘clear congressional authorization’ ” to justify the

challenged program. Id., at ___, ___ (quoting Utility Air Regulatory 

Group v. EPA, 573 U. S. 302, 324). And as explained, the HEROES

Act provides no authorization for the Secretary’s plan when examined 

using the ordinary tools of statutory interpretation—let alone “clear 

congressional authorization” for such a program. Pp. 19–25. 

Reversed and remanded. 

ROBERTS, C. J., delivered the opinion of the Court, in which THOMAS, 

ALITO, GORSUCH, KAVANAUGH, and BARRETT, JJ., joined. BARRETT, J., 

filed a concurring opinion. KAGAN, J., filed a dissenting opinion, in which 

SOTOMAYOR and JACKSON, JJ., joined. 
 

 

_________________ 

_________________ 

Cite as: 600 U. S. ____ (2023) 1 

Opinion of the Court 

NOTICE: This opinion is subject to formal revision before publication in the 

United States Reports. Readers are requested to notify the Reporter of 

Decisions, Supreme Court of the United States, Washington, D. C. 20543, 

pio@supremecourt.gov, of any typographical or other formal errors. 

SUPREME COURT OF THE UNITED STATES 

No. 22–506 

JOSEPH R. BIDEN, PRESIDENT OF THE 

UNITED STATES, ET AL., PETITIONERS v. 

NEBRASKA, ET AL. 

ON WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED 

STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT 

[June 30, 2023]

 CHIEF JUSTICE ROBERTS delivered the opinion of the 

Court. 

To ensure that Americans could keep up with increasing 

international competition, Congress authorized the first 

federal student loans in 1958—up to a total of $1,000 per 

student each year. National Defense Education Act of 1958, 

72 Stat. 1584. Outstanding federal student loans now total

$1.6 trillion extended to 43 million borrowers. Letter from 

Congressional Budget Office to Members of Congress, p. 3 

(Sept. 26, 2022) (CBO Letter). Last year, the Secretary of 

Education established the first comprehensive student loan 

forgiveness program, invoking the Higher Education Relief 

Opportunities for Students Act of 2003 (HEROES Act) for 

authority to do so. The Secretary’s plan canceled roughly 

$430 billion of federal student loan balances, completely 

erasing the debts of 20 million borrowers and lowering the

median amount owed by the other 23 million from $29,400

to $13,600. See ibid.; App. 243. Six States sued, arguing 

that the HEROES Act does not authorize the loan cancellation plan. We agree. 
 

 

 

2 BIDEN v. NEBRASKA 

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I 

A 

The Higher Education Act of 1965 (Education Act) was

enacted to increase educational opportunities and “assist in

making available the benefits of postsecondary education to 

eligible students . . . in institutions of higher education.” 20 

U. S. C. §1070(a). To that end, Title IV of the Act restructured federal financial aid mechanisms and established 

three types of federal student loans. Direct Loans are, as 

the name suggests, made directly to students and funded

by the federal fisc; they constitute the bulk of the Federal

Government’s student lending efforts. See §1087a et seq.

The Government also administers Perkins Loans— 

government-subsidized, low-interest loans made by schools 

to students with significant financial need—and Federal 

Family Education Loans, or FFELs—loans made by private 

lenders and guaranteed by the Federal Government. See 

§§1071 et seq., 1087aa et seq. While FFELs and Perkins 

Loans are no longer issued, many remain outstanding.

§§1071(d), 1087aa(b). 

The terms of federal loans are set by law, not the market,

so they often come with benefits not offered by private lenders. Such benefits include deferment of any repayment until after graduation, loan qualification regardless of credit

history, relatively low fixed interest rates, income-sensitive

repayment plans, and—for undergraduate students with financial need—government payment of interest while the 

borrower is in school. Dept. of Ed., Federal Student Aid, 

Federal Versus Private Loans. 

The Education Act specifies in detail the terms and conditions attached to federal loans, including applicable interest rates, loan fees, repayment plans, and consequences of 

default. See §§1077, 1080, 1087e, 1087dd. It also authorizes the Secretary to cancel or reduce loans, but only in certain limited circumstances and to a particular extent. Specifically, the Secretary can cancel a set amount of loans held 
 

 

Cite as: 600 U. S. ____ (2023) 3 

Opinion of the Court 

by some public servants—including teachers, members of 

the Armed Forces, Peace Corps volunteers, law enforcement and corrections officers, firefighters, nurses, and librarians—who work in their professions for a minimum 

number of years. §§1078–10, 1087j, 1087ee. The Secretary

can also forgive the loans of borrowers who have died or 

been “permanently and totally disabled,” such that they

cannot “engage in any substantial gainful activity.”

§1087(a)(1). Bankrupt borrowers may have their loans forgiven. §1087(b). And the Secretary is directed to discharge 

loans for borrowers falsely certified by their schools, borrowers whose schools close down, and borrowers whose 

schools fail to pay loan proceeds they owe to lenders. 

§1087(c).

Shortly after the September 11 terrorist attacks, Congress became concerned that borrowers affected by the crisis—particularly those who served in the military—would

need additional assistance. As a result, it enacted the 

Higher Education Relief Opportunities for Students Act of

2001. That law provided the Secretary of Education, for a

limited period of time, with “specific waiver authority to respond to conditions in the national emergency” caused by

the September 11 attacks. 115 Stat. 2386. Rather than allow this grant of authority to expire by its terms at the end

of September 2003, Congress passed the Higher Education 

Relief Opportunities for Students Act of 2003 (HEROES

Act). 117 Stat. 904. That Act extended the coverage of the

2001 statute to include any war or national emergency—

not just the September 11 attacks. By its terms, the Secretary “may waive or modify any statutory or regulatory provision applicable to the student financial assistance programs under title IV of the [Education Act] as the Secretary

deems necessary in connection with a war or other military 

operation or national emergency.” 20 U. S. C. 
 

4 BIDEN v. NEBRASKA 

Opinion of the Court 

§1098bb(a)(1).1 

The Secretary may issue waivers or modifications only

“as may be necessary to ensure” that “recipients of student

financial assistance under title IV of the [Education Act] 

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

§1098bb(a)(2)(A). An “affected individual” is defined, in relevant part, as someone who “resides or is employed in an

area that is declared a disaster area by any Federal, State,

or local official in connection with a national emergency” or 

who “suffered direct economic hardship as a direct result of 

a war or other military operation or national emergency, as

determined by the Secretary.” §§1098ee(2)(C)–(D). And a 

“national emergency” for the purposes of the Act is “a national emergency declared by the President of the United 

States.” §1098ee(4).

Immediately following the passage of the Act in 2003, the 

Secretary issued two dozen waivers and modifications addressing a handful of specific issues. 68 Fed. Reg. 69312– 

69318. Among other changes, the Secretary waived the requirement that “affected individuals” must “return or repay 

an overpayment” of certain grant funds erroneously disbursed by the Government, id., at 69314, and the requirement that public service work must be uninterrupted to 

qualify an “affected individual” for loan cancellation, id., at 

69317. Additional adjustments were made in 2012, with

similar limited effects. 77 Fed. Reg. 59311–59318. 

—————— 1Like its 2001 predecessor, the HEROES Act enjoyed virtually unanimous bipartisan support at the time of its enactment, passing by a 421-

to-1 vote in the House of Representatives and a unanimous voice vote in

the Senate. See 149 Cong. Rec. 7952–7953 (2003); id., at 20809; 147 

Cong. Rec. 20396 (2001); id., at 26292–26293. The single dissenting Representative later voiced his support for the Act, explaining that he 

“meant to vote ‘yea.’ ” 149 Cong. Rec. 8559 (statement of Rep. Miller). 
 

 

Cite as: 600 U. S. ____ (2023) 5 

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But the Secretary took more significant action in response to the COVID–19 pandemic. On March 13, 2020, 

the President declared the pandemic a national emergency. 

Presidential Proclamation No. 9994, 85 Fed. Reg. 15337–

15338 (2020). One week later, then-Secretary of Education 

Betsy DeVos announced that she was suspending loan repayments and interest accrual for all federally held student

loans. See Dept. of Ed., Breaking News: Testing Waivers

and Student Loan Relief (Mar. 20, 2020). The following 

week, Congress enacted the Coronavirus Aid, Relief, and 

Economic Security Act, which required the Secretary to extend the suspensions through the end of September 2020.

134 Stat. 404–405. Before that extension expired, the President directed the Secretary, “[i]n light of the national emergency,” to “effectuate appropriate waivers of and modifications to” the Education Act to keep the suspensions in effect

through the end of the year. 85 Fed. Reg. 49585. And a few 

months later, the Secretary further extended the suspensions, broadened eligibility for federal financial assistance, 

and waived certain administrative requirements (to allow,

for example, virtual rather than on-site accreditation visits

and to extend deadlines for filing reports). Id., at 79856– 

79863; 86 Fed. Reg. 5008–5009 (2021).

Over a year and a half passed with no further action beyond keeping the repayment and interest suspensions in 

place. But in August 2022, a few weeks before President 

Biden stated that “the pandemic is over,” the Department 

of Education announced that it was once again issuing 

“waivers and modifications” under the Act—this time to reduce and eliminate student debts directly. See App. 257–

259; Washington Post, Sept. 20, 2022, p. A3, col. 1. During

the first year of the pandemic, the Department’s Office of 

General Counsel had issued a memorandum concluding

that “the Secretary does not have statutory authority to 

provide blanket or mass cancellation, compromise, discharge, or forgiveness of student loan principal balances.” 
 

 

6 BIDEN v. NEBRASKA 

Opinion of the Court 

Memorandum from R. Rubinstein to B. DeVos, p. 8 (Jan. 12, 

2021). After a change in Presidential administrations and 

shortly before adoption of the challenged policy, however,

the Office of General Counsel “formally rescinded” its earlier legal memorandum and issued a replacement reaching 

the opposite conclusion. 87 Fed. Reg. 52945 (2022). The 

new memorandum determined that the HEROES Act 

“grants the Secretary authority that could be used to effectuate a program of targeted loan cancellation directed at

addressing the financial harms of the COVID–19 pandemic.” Id., at 52944. Upon receiving this new opinion, the

Secretary issued his proposal to cancel student debt under

the HEROES Act. App. 257–259. Two months later, he 

published the required notice of his “waivers and modifications” in the Federal Register. 87 Fed. Reg. 61512–61514.

The terms of the debt cancellation plan are straightforward: For borrowers with an adjusted gross income below 

$125,000 in either 2020 or 2021 who have eligible federal 

loans, the Department of Education will discharge the balance of those loans in an amount up to $10,000 per borrower.2 Id., at 61514 (“modif[ying] the provisions of ” 20 

U. S. C. §§1087, 1087dd(g); 34 CFR pt. 647, subpt. D (2022); 

34 CFR §§682.402, 685.212). Borrowers who previously received Pell Grants qualify for up to $20,000 in loan cancellation. 87 Fed. Reg. 61514. Eligible loans include “Direct 

Loans, FFEL loans held by the Department or subject to

collection by a guaranty agency, and Perkins Loans held by 

the Department.” Ibid. The Department of Education estimates that about 43 million borrowers qualify for relief, and 

the Congressional Budget Office estimates that the plan 

will cancel about $430 billion in debt principal. See App.

119; CBO Letter 3. 

—————— 2A borrower filing “jointly or as a Head of Household, or as a qualifying 

widow(er),” qualifies for loan cancellation with an adjusted gross income 

lower than $250,000. 87 Fed. Reg. 61514. 
 

 

Cite as: 600 U. S. ____ (2023) 7 

Opinion of the Court 

B 

Six States moved for a preliminary injunction, claiming 

that the plan exceeded the Secretary’s statutory authority.

The District Court held that none of the States had standing to challenge the plan and dismissed the suit. ___ 

F. Supp. 3d ___ (ED Mo. 2022). The States appealed, and

the Eighth Circuit issued a nationwide preliminary injunction pending resolution of the appeal. The court concluded 

that Missouri likely had standing through the Missouri 

Higher Education Loan Authority (MOHELA or Authority), 

a public corporation that holds and services student loans. 

52 F. 4th 1044 (2022). It further concluded that the State’s 

challenge raised “substantial” questions on the merits and

that the equities favored maintaining the status quo pending further review. Id., at 1048 (internal quotation marks

omitted).

With the plan on pause, the Secretary asked this Court

to vacate the injunction or to grant certiorari before judgment, “to avoid prolonging this uncertainty for the millions 

of affected borrowers.” Application 4. We granted the petition and set the case for expedited argument. 598 U. S. ___ 

(2022). 

II 

Before addressing the legality of the Secretary’s program,

we must first ensure that the States have standing to challenge it. Under Article III of the Constitution, a plaintiff 

needs a “personal stake” in the case. TransUnion LLC v. 

Ramirez, 594 U. S. ___, ___ (2021) (slip op., at 7). That is, 

the plaintiff must have suffered an injury in fact—a concrete and imminent harm to a legally protected interest,

like property or money—that is fairly traceable to the challenged conduct and likely to be redressed by the lawsuit. 

Lujan v. Defenders of Wildlife, 504 U. S. 555, 560–561 

(1992). If at least one plaintiff has standing, the suit may 

proceed. Rumsfeld v. Forum for Academic and Institutional 
 

 

8 BIDEN v. NEBRASKA 

Opinion of the Court 

Rights, Inc., 547 U. S. 47, 52, n. 2 (2006). Because we conclude that the Secretary’s plan harms MOHELA and 

thereby directly injures Missouri—conferring standing on 

that State—we need not consider the other theories of 

standing raised by the States.

Missouri created MOHELA as a nonprofit government

corporation to participate in the student loan market. Mo. 

Rev. Stat. §173.360 (2016). The Authority owns over $1 billion in FFELs. MOHELA, FY 2022 Financial Statement 9 

(Financial Statement). It also services nearly $150 billion 

worth of federal loans, having been hired by the Department of Education to collect payments and provide customer service to borrowers. Id., at 4, 8. MOHELA receives 

an administrative fee for each of the five million federal accounts it services, totaling $88.9 million in revenue last 

year alone. Ibid. 

Under the Secretary’s plan, roughly half of all federal borrowers would have their loans completely discharged. App.

119. MOHELA could no longer service those closed accounts, costing it, by Missouri’s estimate, $44 million a year 

in fees that it otherwise would have earned under its contract with the Department of Education. Brief for Respondents 16. This financial harm is an injury in fact directly

traceable to the Secretary’s plan, as both the Government

and the dissent concede. See Tr. of Oral Arg. 18; post, at 5 

(KAGAN, J., dissenting). 

The plan’s harm to MOHELA is also a harm to Missouri.

MOHELA is a “public instrumentality” of the State. Mo. 

Rev. Stat. §173.360. Missouri established the Authority to 

perform the “essential public function” of helping Missourians access student loans needed to pay for college. Ibid.; 

see Todd v. Curators of University of Missouri, 347 Mo. 460, 

464, 147 S. W. 2d 1063, 1064 (1941) (“Our constitution recognizes higher education as a governmental function.”). To 

fulfill this public purpose, the Authority is empowered by 

the State to invest in or finance student loans, including by 
Cite as: 600 U. S. ____ (2023) 9 

Opinion of the Court 

issuing bonds. §§173.385(1)(6)–(7). It may also service 

loans and collect “reasonable fees” for doing so. 

§§173.385(1)(12), (18). Its profits help fund education in 

Missouri: MOHELA has provided $230 million for development projects at Missouri colleges and universities and almost $300 million in grants and scholarships for Missouri 

students. Financial Statement 10, 20. 

The Authority is subject to the State’s supervision and

control. Its board consists of two state officials and five 

members appointed by the Governor and approved by the

Senate. §173.360. The Governor can remove any board 

member for cause. Ibid. MOHELA must provide annual 

financial reports to the Missouri Department of Education,

detailing its income, expenditures, and assets. §173.445. 

The Authority is therefore “directly answerable” to the

State. Casualty Reciprocal Exchange v. Missouri Employers Mut. Ins. Co., 956 S. W. 2d 249, 254 (Mo. 1997). The 

State “set[s] the terms of its existence,” and only the State 

“can abolish [MOHELA] and set the terms of its dissolution.” Id., at 254–255. 

By law and function, MOHELA is an instrumentality of

Missouri: It was created by the State to further a public 

purpose, is governed by state officials and state appointees, 

reports to the State, and may be dissolved by the State. The 

Secretary’s plan will cut MOHELA’s revenues, impairing 

its efforts to aid Missouri college students. This acknowledged harm to MOHELA in the performance of its public 

function is necessarily a direct injury to Missouri itself. 

We came to a similar conclusion 70 years ago in Arkansas 

v. Texas, 346 U. S. 368 (1953). Arkansas sought to invoke 

our original jurisdiction in a suit against Texas, claiming

that Texas had wrongfully interfered with a contract between the University of Arkansas and a Texas charity. Id., 

at 369. Texas argued that the suit could not proceed because the University did “not stand in the shoes of the 

State.” Id., at 370. The harm to the University, as Texas 
 

10 BIDEN v. NEBRASKA 

Opinion of the Court 

saw it, was not a harm to Arkansas sufficient for the State 

to sue in its own name. 

We disagreed. We recognized that “Arkansas must, of 

course, represent an interest of her own and not merely that 

of her citizens or corporations.” Ibid. But we concluded 

that Arkansas was in fact seeking to protect its own interests because the University was “an official state instrumentality.” Ibid. The State had labeled the University “an 

instrument of the state in the performance of a governmental work.” Ibid. (internal quotation marks omitted). The 

University served a public purpose, acting as the State’s 

“agen[t] in the educational field.” Id., at 371. The University had been “created by the Arkansas legislature,” was 

“governed by a Board of Trustees appointed by the Governor with consent of the Senate,” and “report[ed] all of its

expenditures to the legislature.” Id., at 370. In short, the 

University was an instrumentality of the State, and “any 

injury under the contract to the University [was] an injury

to Arkansas.” Ibid. So too here. Because the Authority is

part of Missouri, the State does not seek to “rely on injuries

suffered by others.” Post, at 2 (opinion of KAGAN, J.). It 

aims to remedy its own.

The Secretary and the dissent assert that MOHELA’s injuries should not count as Missouri’s because MOHELA, as

a public corporation, has a legal personality separate from

the State. Every government corporation has such a distinct personality; it is a corporation, after all, “with the powers to hold and sell property and to sue and be sued.” First 

Nat. City Bank v. Banco Para el Comercio Exterior de Cuba, 

462 U. S. 611, 624 (1983). Yet such an instrumentality—

created and operated to fulfill a public function—nonetheless remains “(for many purposes at least) part of the Government itself.” Lebron v. National Railroad Passenger 

Corporation, 513 U. S. 374, 397 (1995).

In Lebron, Amtrak was sued for refusing to display a political advertisement on a billboard at one of its stations. 
 

Cite as: 600 U. S. ____ (2023) 11 

Opinion of the Court 

Id., at 376–377. Amtrak argued that it was not subject to 

the First Amendment because it was a corporation separate 

from the Federal Government. See id., at 392. Congress

had even specified in its authorizing statute that Amtrak 

was not “an agency or establishment of the United States 

Government.” Id., at 391 (quoting 84 Stat. 1330). Despite

this disclaimer, we held that Amtrak remained subject to

the First Amendment because it functioned as an instrumentality of the Federal Government, “created by a special 

statute, explicitly for the furtherance of federal governmental goals” of ensuring that the American public had access

to passenger trains. Lebron, 513 U. S., at 397. Its board 

was appointed by the President, and it had to submit annual reports to the President and Congress. Id., at 385– 

386. Having been “established and organized under federal

law for the very purpose of pursuing federal governmental 

objectives, under the direction and control of federal governmental appointees,” Amtrak could not disclaim that it 

was “part of the Government.” Id., at 398, 400. 

We reiterated the point in Department of Transportation 

v. Association of American Railroads, 575 U. S. 43 (2015).

There, railroads argued that giving Amtrak regulatory

power was an unconstitutional delegation of government

authority to a private entity. Id., at 49–50. We rejected

that contention, noting that “Amtrak was created by the 

Government, is controlled by the Government, and operates

for the Government’s benefit.” Id., at 53. It was therefore 

acting “as a governmental entity” in exercising that regulatory power. Id., at 54. 

That principle holds true here. The Secretary and the

dissent contend that because MOHELA can sue on its own 

behalf, it—not Missouri—must be the one to sue. But in 

Arkansas, 346 U. S. 368, the University of Arkansas could 

have asserted its rights under the contract on its own. The 

University’s governing statute made it “a body politic and 

corporate,” with “all the powers of a corporate body,” Ark. 
 

12 BIDEN v. NEBRASKA 

Opinion of the Court 

Stat. §80–2804 (1887)—including the power to sue and be 

sued on its own behalf, see HRR Arkansas, Inc. v. River City 

Contractors, Inc., 350 Ark. 420, 427, 87 S. W. 3d 232, 237 

(2002); see, e.g., Board of Trustees, Univ. of Ark. v. Pulaski 

County, 229 Ark. 370, 315 S. W. 2d 879 (1958). We permitted Arkansas to bring an original suit all the same. Where 

a State has been harmed in carrying out its responsibilities, 

the fact that it chose to exercise its authority through a public corporation it created and controls does not bar the State 

from suing to remedy that harm itself.3 

The Secretary’s plan harms MOHELA in the performance of its public function and so directly harms the State

that created and controls MOHELA. Missouri thus has suffered an injury in fact sufficient to give it standing to challenge the Secretary’s plan. With Article III satisfied, we 

turn to the merits. 

III 

The Secretary asserts that the HEROES Act grants him

the authority to cancel $430 billion of student loan principal. It does not. We hold today that the Act allows the Secretary to “waive or modify” existing statutory or regulatory

provisions applicable to financial assistance programs under the Education Act, not to rewrite that statute from the 

ground up. 

—————— 3The dissent, for all its attempts to cabin these precedents, cites no 

precedents of its own addressing a State’s standing to sue for a harm to

its instrumentality. The dissent offers only a state court case involving 

a different public corporation, in which the Missouri Supreme Court said

that the corporation was separate from the State for the purposes of a 

state ban on “the lending of the credit of the state.” Menorah Medical 

Center v. Health and Ed. Facilities Auth., 584 S. W. 2d 73, 78 (1979) (plurality opinion). But as the dissent recognizes, a public corporation can 

count as part of the State for some but not “other purposes.” Post, at 11, 

and n. 1. The Missouri Supreme Court said nothing about, and had no 

reason to address, whether an injury to that public corporation was a 

harm to the State. 
Cite as: 600 U. S. ____ (2023) 13 

Opinion of the Court 

A 

The HEROES Act authorizes the Secretary to “waive or 

modify any statutory or regulatory provision applicable to 

the student financial assistance programs under title IV of 

the [Education Act] as the Secretary deems necessary in

connection with a war or other military operation or national emergency.” 20 U. S. C. §1098bb(a)(1). That power 

has limits. To begin with, statutory permission to “modify”

does not authorize “basic and fundamental changes in the 

scheme” designed by Congress. MCI Telecommunications 

Corp. v. American Telephone & Telegraph Co., 512 U. S. 

218, 225 (1994). Instead, that term carries “a connotation 

of increment or limitation,” and must be read to mean “to 

change moderately or in minor fashion.” Ibid. That is how 

the word is ordinarily used. See, e.g., Webster’s Third New 

International Dictionary 1952 (2002) (defining “modify” as

“to make more temperate and less extreme,” “to limit or restrict the meaning of,” or “to make minor changes in the 

form or structure of [or] alter without transforming”). The 

legal definition is no different. Black’s Law Dictionary 1203

(11th ed. 2019) (giving the first definition of “modify” as

“[t]o make somewhat different; to make small changes to,”

and the second as “[t]o make more moderate or less sweeping”). The authority to “modify” statutes and regulations

allows the Secretary to make modest adjustments and additions to existing provisions, not transform them. 

The Secretary’s previous invocations of the HEROES Act

illustrate this point. Prior to the COVID–19 pandemic,

“modifications” issued under the Act implemented only minor changes, most of which were procedural. Examples include reducing the number of tax forms borrowers are required to file, extending time periods in which borrowers

must take certain actions, and allowing oral rather than

written authorizations. See 68 Fed. Reg. 69314–69316.

Here, the Secretary purported to “modif[y] the provisions 

of ” two statutory sections and three related regulations 
 

14 BIDEN v. NEBRASKA 

Opinion of the Court 

governing student loans. 87 Fed. Reg. 61514. The affected 

statutory provisions granted the Secretary the power to

“discharge [a] borrower’s liability,” or pay the remaining 

principal on a loan, under certain narrowly prescribed circumstances. 20 U. S. C. §§1087, 1087dd(g)(1). Those circumstances were limited to a borrower’s death, disability,

or bankruptcy; a school’s false certification of a borrower or

failure to refund loan proceeds as required by law; and a 

borrower’s inability to complete an educational program

due to closure of the school. See §§1087(a)–(d), 1087dd(g). 

The corresponding regulatory provisions detailed rules and

procedures for such discharges. They also defined the 

terms of the Government’s public service loan forgiveness

program and provided for discharges when schools commit 

malfeasance. See 34 CFR §§682.402, 685.212; 34 CFR pt. 

674, subpt. D.

The Secretary’s new “modifications” of these provisions 

were not “moderate” or “minor.” Instead, they created a

novel and fundamentally different loan forgiveness program. The new program vests authority in the Department

of Education to discharge up to $10,000 for every borrower 

with income below $125,000 and up to $20,000 for every 

such borrower who has received a Pell Grant. 87 Fed. Reg. 

61514. No prior limitation on loan forgiveness is left standing. Instead, every borrower within the specified income 

cap automatically qualifies for debt cancellation, no matter

their circumstances. The Department of Education estimates that the program will cover 98.5% of all borrowers.

See Dept. of Ed., White House Fact Sheet: The Biden Administration’s Plan for Student Debt Relief Could Benefit 

Tens of Millions of Borrowers in All Fifty States (Sept. 20, 

2022). From a few narrowly delineated situations specified 

by Congress, the Secretary has expanded forgiveness to 

nearly every borrower in the country.

The Secretary’s plan has “modified” the cited provisions 
 

 

Cite as: 600 U. S. ____ (2023) 15 

Opinion of the Court 

only in the same sense that “the French Revolution ‘modified’ the status of the French nobility”—it has abolished 

them and supplanted them with a new regime entirely. 

MCI, 512 U. S., at 228. Congress opted to make debt forgiveness available only in a few particular exigent circumstances; the power to modify does not permit the Secretary

to “convert that approach into its opposite” by creating a 

new program affecting 43 million Americans and $430 billion in federal debt. Descamps v. United States, 570 U. S. 

254, 274 (2013). Labeling the Secretary’s plan a mere “modification” does not lessen its effect, which is in essence to 

allow the Secretary unfettered discretion to cancel student

loans. It is “highly unlikely that Congress” authorized such

a sweeping loan cancellation program “through such a subtle device as permission to ‘modify.’” MCI, 512 U. S., at 231. 

The Secretary responds that the Act authorizes him to 

“waive” legal provisions as well as modify them—and that

this additional term “grant[s] broader authority” than 

would “modify” alone. But the Secretary’s invocation of the 

waiver power here does not remotely resemble how it has 

been used on prior occasions. Previously, waiver under the

HEROES Act was straightforward: the Secretary identified

a particular legal requirement and waived it, making compliance no longer necessary. For instance, on one occasion 

the Secretary waived the requirement that a student provide a written request for a leave of absence. See 77 Fed. 

Reg. 59314. On another, he waived the regulatory provisions requiring schools and guaranty agencies to attempt 

collection of defaulted loans for the time period in which

students were affected individuals. See 68 Fed. Reg. 69316.

Here, the Secretary does not identify any provision that

he is actually waiving.4 No specific provision of the Educa-

—————— 4While the Secretary’s notice published in the Federal Register refers 
 

16 BIDEN v. NEBRASKA 

Opinion of the Court 

tion Act establishes an obligation on the part of student borrowers to pay back the Government. So as the Government 

concedes, “waiver”—as used in the HEROES Act—cannot 

refer to “waiv[ing] loan balances” or “waiving the obligation

to repay” on the part of a borrower. Tr. of Oral Arg. 9, 64. 

Contrast 20 U. S. C. §1091b(b)(2)(D) (allowing the Secretary to “waive the amounts that students are required to 

return” in specified circumstances of overpayment by the 

Government). Because the Secretary cannot waive a particular provision or provisions to achieve the desired result,

he is forced to take a more circuitous approach, one that

avoids any need to show compliance with the statutory limitation on his authority. He simply “waiv[es] the elements

of the discharge and cancellation provisions that are inapplicable in this [debt cancellation] program that would limit

eligibility to other contexts.” Tr. of Oral Arg. 64–65. 

Yet even that expansive conception of waiver cannot justify the Secretary’s plan, which does far more than relax 

existing legal requirements. The plan specifies particular

sums to be forgiven and income-based eligibility requirements. The addition of these new and substantially different provisions cannot be said to be a “waiver” of the old in 

any meaningful sense. Recognizing this, the Secretary

acknowledges that waiver alone is not enough; after waiving whatever “inapplicable” law would bar his debt cancellation plan, he says, he then “modif[ied] the provisions to

bring [them] in line with this program.” Id., at 65. So in 

the end, the Secretary’s plan relies on modifications all the 

way down. And as we have explained, the word “modify” 

simply cannot bear that load.

The Secretary and the dissent go on to argue that the

power to “waive or modify” is greater than the sum of its 

—————— 

to “waivers and modifications” generally, see 87 Fed. Reg. 61512–61514, 

and while two sentences use the somewhat ambiguous phrase “[t]his 

waiver,” id., at 61514, the notice identifies no specific legal provision as 

having been “waived” by the Secretary. 
 

 

 

Cite as: 600 U. S. ____ (2023) 17 

Opinion of the Court 

parts. Because waiver allows the Secretary “to eliminate

legal obligations in their entirety,” the argument runs, the 

combination of “waive or modify” allows him “to reduce 

them to any extent short of waiver”—even if the power to 

“modify” ordinarily does not stretch that far. Reply Brief 

16–17 (internal quotation marks omitted). But the Secretary’s program cannot be justified by such sleight of hand.

The Secretary has not truly waived or modified the provisions in the Education Act authorizing specific and limited

forgiveness of student loans. Those provisions remain

safely intact in the U. S. Code, where they continue to operate in full force. What the Secretary has actually done is

draft a new section of the Education Act from scratch by

“waiving” provisions root and branch and then filling the

empty space with radically new text.

Lastly, the Secretary points to a procedural provision in

the HEROES Act. The Act directs the Secretary to publish

a notice in the Federal Register “includ[ing] the terms and 

conditions to be applied in lieu of such statutory and regulatory provisions” as the Secretary has waived or modified.

20 U. S. C. §1098bb(b)(2) (emphasis added). In the Secretary’s view, that language authorizes “both deleting and 

then adding back in, waiving and then putting his own requirements in”—a sort of “red penciling” of the existing law. 

Tr. of Oral Arg. 65; see also Reply Brief 17. 

Section 1098bb(b)(2) is, however, “a wafer-thin reed on 

which to rest such sweeping power.” Alabama Assn. of 

Realtors v. Department of Health and Human Servs., 594 

U. S. ___, ___ (2021) (per curiam) (slip op., at 7). The provision is no more than it appears to be: a humdrum reporting 

requirement. Rather than implicitly granting the Secretary authority to draft new substantive statutory provisions

at will, it simply imposes the obligation to report any waivers and modifications he has made. Section 1098bb(b)(2) 

suggests that “waivers and modifications” includes addi-
 

 

18 BIDEN v. NEBRASKA 

Opinion of the Court 

tions. The dissent accordingly reads the statute as authorizing any degree of change or any new addition, “from modest to substantial”—and nothing in the dissent’s analysis 

suggests stopping at “substantial.” Post, at 20. Because the 

Secretary “does not have to leave gaping holes” when he 

waives provisions, the argument runs, it follows that any

replacement terms the Secretary uses to fill those holes 

must be lawful. Ibid. But the Secretary’s ability to add new 

terms “in lieu of ” the old is limited to his authority to “modify” existing law. As with any other modification issued under the Act, no new term or condition reported pursuant to 

§1098bb(b)(2) may distort the fundamental nature of the 

provision it alters.5 

The Secretary’s comprehensive debt cancellation plan 

cannot fairly be called a waiver—it not only nullifies existing provisions, but augments and expands them dramatically. It cannot be mere modification, because it constitutes 

“effectively the introduction of a whole new regime.” MCI, 

512 U. S., at 234. And it cannot be some combination of the 

two, because when the Secretary seeks to add to existing

law, the fact that he has “waived” certain provisions does 

not give him a free pass to avoid the limits inherent in the

power to “modify.” However broad the meaning of “waive 

or modify,” that language cannot authorize the kind of exhaustive rewriting of the statute that has taken place here.6 

—————— 5The dissent asserts that our decision today will control any challenge

to the Secretary’s temporary suspensions of loan repayments and interest accrual. Post, at 21–22. We decide only the case before us. A challenge to the suspensions may involve different considerations with respect to both standing and the merits. 6The States further contend that the Secretary’s program violates the 

requirement in the HEROES Act that any waivers or modifications be 

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

worse position financially in relation to” federal financial assistance. 20 

U. S. C. §1098bb(a)(2)(A); see Brief for Respondents 39–44. While our 

decision does not rest upon that reasoning, we note that the Secretary 
 

 

Cite as: 600 U. S. ____ (2023) 19 

Opinion of the Court 

B 

In a final bid to elide the statutory text, the Secretary appeals to congressional purpose. “The whole point of ” the 

HEROES Act, the Government contends, “is to ensure that 

in the face of a national emergency that is causing financial 

harm to borrowers, the Secretary can do something.” Tr. of 

Oral Arg. 55. And that “something” was left deliberately

vague because Congress intended “to grant substantial discretion to the Secretary to respond to unforeseen emergencies.” Reply Brief 22, n. 3. So the unprecedented nature of

the Secretary’s debt cancellation plan only “reflects the pandemic’s unparalleled scope.” Brief for Petitioners 52 (Brief 

for United States).

The dissent agrees. “Emergencies, after all, are emergencies,” it reasons, and “more serious measures” must be expected “in response to more serious problems.” Post, at 25, 

28. The dissent’s interpretation of the HEROES Act would 

grant unlimited power to the Secretary, not only to modify 

or waive certain provisions but to “fill the holes that action 

creates with new terms”—no matter how drastic those 

terms might be—and to “alter [provisions] to the extent [he]

think[s] appropriate,” up to and including “the most substantial kind of change” imaginable. Post, at 16, 19–20. 

That is inconsistent with the statutory language and past 

practice under the statute. 

The question here is not whether something should be 

done; it is who has the authority to do it. Our recent decision in West Virginia v. EPA involved similar concerns over 

the exercise of administrative power. 597 U. S. ___ (2022).

That case involved the EPA’s claim that the Clean Air Act 

authorized it to impose a nationwide cap on carbon dioxide 

—————— 

faces a daunting task in showing that cancellation of debt principal is

“necessary to ensure” that borrowers are not placed in “worse position[s]

financially in relation to” their loans, especially given the Government’s 

prior determination that pausing interest accrual and loan repayments 

would achieve that end. 
 

 

20 BIDEN v. NEBRASKA 

Opinion of the Court 

emissions. Given “the ‘history and the breadth of the authority that [the agency] ha[d] asserted,’ and the ‘economic 

and political significance’ of that assertion,” we found that

there was “‘reason to hesitate before concluding that Congress’ meant to confer such authority.” Id., at ___ (slip op., 

at 17) (quoting FDA v. Brown & Williamson Tobacco Corp., 

529 U. S. 120, 159–160 (2000); first alteration in original).

So too here, where the Secretary of Education claims the 

authority, on his own, to release 43 million borrowers from

their obligations to repay $430 billion in student loans. The 

Secretary has never previously claimed powers of this magnitude under the HEROES Act. As we have already noted,

past waivers and modifications issued under the Act have

been extremely modest and narrow in scope. The Act has 

been used only once before to waive or modify a provision

related to debt cancellation: In 2003, the Secretary waived

the requirement that borrowers seeking loan forgiveness 

under the Education Act’s public service discharge provisions “perform uninterrupted, otherwise qualifying service

for a specified length of time (for example, one year) or for 

consecutive periods of time, such as 5 consecutive years.” 

68 Fed. Reg. 69317. That waiver simply eased the requirement that service be uninterrupted to qualify for the public 

service loan forgiveness program. In sum, “[n]o regulation 

premised on” the HEROES Act “has even begun to approach the size or scope” of the Secretary’s program. Alabama Assn., 594 U. S., at ___ (slip op., at 7).7 

Under the Government’s reading of the HEROES Act, the 

—————— 7The Secretary also cites a prior invocation of the HEROES Act waiving the requirement that borrowers must repay prior overpayments of 

certain grant funds. See Brief for United States 41; 68 Fed. Reg. 69314. 

But Congress had already limited borrower liability in such cases to exclude overpayments in amounts up to “50 percent of the total grant assistance received by the student” for the period at issue, so the Secretary’s waiver had only a modest effect. 20 U. S. C. §1091b(b)(2)(C)(i)(II). 

And that waiver simply held the Government responsible for its own errors when it had mistakenly disbursed undeserved grant funds. 
Cite as: 600 U. S. ____ (2023) 21 

Opinion of the Court 

Secretary would enjoy virtually unlimited power to rewrite 

the Education Act. This would “effec[t] a ‘fundamental revision of the statute, changing it from [one sort of] scheme

of . . . regulation’ into an entirely different kind,” West Virginia, 597 U. S., at ___ (slip op., at 24) (quoting MCI, 512 

U. S., at 231)—one in which the Secretary may unilaterally 

define every aspect of federal student financial aid, provided he determines that recipients have “suffered direct 

economic hardship as a direct result of a . . . national emergency.” 20 U. S. C. §1098ee(2)(D). 

The “‘economic and political significance’” of the Secretary’s action is staggering by any measure. West Virginia, 

597 U. S., at ___ (slip op., at 17) (quoting Brown & Williamson, 529 U. S., at 160). Practically every student borrower

benefits, regardless of circumstances. A budget model issued by the Wharton School of the University of Pennsylvania estimates that the program will cost taxpayers “between $469 billion and $519 billion,” depending on the total

number of borrowers ultimately covered. App. 108. That is 

ten times the “economic impact” that we found significant

in concluding that an eviction moratorium implemented by

the Centers for Disease Control and Prevention triggered 

analysis under the major questions doctrine. Alabama 

Assn., 594 U. S., at ___ (slip op., at 6). It amounts to nearly 

one-third of the Government’s $1.7 trillion in annual discretionary spending. Congressional Budget Office, The Federal Budget in Fiscal Year 2022. There is no serious dispute 

that the Secretary claims the authority to exercise control

over “a significant portion of the American economy.” Utility Air Regulatory Group v. EPA, 573 U. S. 302, 324 (2014) 

(quoting Brown & Williamson, 529 U. S., at 159). 

The dissent is correct that this is a case about one branch 

of government arrogating to itself power belonging to another. But it is the Executive seizing the power of the Legislature. The Secretary’s assertion of administrative authority has “conveniently enabled [him] to enact a program” 
 

 

22 BIDEN v. NEBRASKA 

Opinion of the Court 

that Congress has chosen not to enact itself. West Virginia, 

597 U. S., at ___ (slip op., at 27). Congress is not unaware

of the challenges facing student borrowers. “More than 80 

student loan forgiveness bills and other student loan legislation” were considered by Congress during its 116th session alone. M. Kantrowitz, Year in Review: Student Loan 

Forgiveness Legislation, Forbes, Dec. 24, 2020.8 And the 

discussion is not confined to the halls of Congress. Student 

loan cancellation “raises questions that are personal and 

emotionally charged, hitting fundamental issues about the 

structure of the economy.” J. Stein, Biden Student Debt 

Plan Fuels Broader Debate Over Forgiving Borrowers,

Washington Post, Aug. 31, 2022. 

The sharp debates generated by the Secretary’s extraordinary program stand in stark contrast to the unanimity 

with which Congress passed the HEROES Act. The dissent 

asks us to “[i]magine asking the enacting Congress: Can the

Secretary use his powers to give borrowers more relief when 

an emergency has inflicted greater harm?” Post, at 27–28. 

The dissent “can’t believe” the answer would be no. Post, at 

28. But imagine instead asking the enacting Congress a 

more pertinent question: “Can the Secretary use his powers

to abolish $430 billion in student loans, completely canceling loan balances for 20 million borrowers, as a pandemic 

winds down to its end?” We can’t believe the answer would 

be yes. Congress did not unanimously pass the HEROES 

Act with such power in mind. “A decision of such magnitude and consequence” on a matter of “‘earnest and profound debate across the country’” must “res[t] with Congress itself, or an agency acting pursuant to a clear 

delegation from that representative body.” West Virginia, 

597 U. S., at ___, ___ (slip op., at 28, 31) (quoting Gonzales 

—————— 8Resolutions were also introduced in 2020 and 2021 “[c]alling on the 

President . . . to take executive action to broadly cancel Federal student 

loan debt.” See S. Res. 711, 116th Cong., 2d Sess. (2020); S. Res. 46,

117th Cong., 1st Sess. (2021). Those resolutions failed to reach a vote. 
Cite as: 600 U. S. ____ (2023) 23 

Opinion of the Court 

v. Oregon, 546 U. S. 243, 267–268 (2006)). As then-Speaker

of the House Nancy Pelosi explained: 

“People think that the President of the United States 

has the power for debt forgiveness. He does not. He 

can postpone. He can delay. But he does not have that 

power. That has to be an act of Congress.” Press Conference, Office of the Speaker of the House (July 28,

2021). 

Aside from reiterating its interpretation of the statute, 

the dissent offers little to rebut our conclusion that “indicators from our previous major questions cases are present” 

here. Post, at 15 (BARRETT, J., concurring). The dissent 

insists that “[s]tudent loans are in the Secretary’s wheelhouse.” Post, at 26 (opinion of KAGAN, J.). But in light of 

the sweeping and unprecedented impact of the Secretary’s 

loan forgiveness program, it would seem more accurate to

describe the program as being in the “wheelhouse” of the 

House and Senate Committees on Appropriations. Rather 

than dispute the extent of that impact, the dissent chooses

to mount a frontal assault on what it styles “the Court’s 

made-up major questions doctrine.” Post, at 29–30. But its 

attempt to relitigate West Virginia is misplaced. As we explained in that case, while the major questions “label” may 

be relatively recent, it refers to “an identifiable body of law 

that has developed over a series of significant cases” spanning decades. West Virginia, 597 U. S., at ___ (slip op., at 

20). At any rate, “the issue now is not whether [West Virginia] is correct. The question is whether that case is distinguishable from this one. And it is not.” Collins v. Yellen, 

594 U. S. ___, ___ (2021) (KAGAN, J., concurring in part and

concurring in judgment) (slip op., at 2). 

The Secretary, for his part, acknowledges that West Virginia is the law. Brief for United States 47–48. But he objects that its principles apply only in cases concerning 

“agency action[s] involv[ing] the power to regulate, not the 
 

 

24 BIDEN v. NEBRASKA 

Opinion of the Court 

provision of government benefits.” Reply Brief 21. In the 

Government’s view, “there are fewer reasons to be concerned” in cases involving benefits, which do not impose 

“profound burdens” on individual rights or cause “regulatory effects that might prompt a note of caution in other 

contexts involving exercises of emergency powers.” Tr. of 

Oral Arg. 61. 

This Court has never drawn the line the Secretary suggests—and for good reason. Among Congress’s most important authorities is its control of the purse. U. S. Const., 

Art. I, §9, cl. 7; see also Office of Personnel Management v. 

Richmond, 496 U. S. 414, 427 (1990) (the Appropriations 

Clause is “a most useful and salutary check upon profusion

and extravagance” (internal quotation marks omitted)). It 

would be odd to think that separation of powers concerns 

evaporate simply because the Government is providing 

monetary benefits rather than imposing obligations. As we 

observed in West Virginia, experience shows that major 

questions cases “have arisen from all corners of the administrative state,” and administrative action resulting in the 

conferral of benefits is no exception to that rule. 597 U. S., 

at ___ (slip op., at 17). In King v. Burwell, 576 U. S. 473 

(2015), we declined to defer to the Internal Revenue Service’s interpretation of a healthcare statute, explaining that 

the provision at issue affected “billions of dollars of spending each year and . . . the price of health insurance for millions of people.” Id., at 485. Because the interpretation of

the provision was “a question of deep ‘economic and political 

significance’ that is central to [the] statutory scheme,” we 

said, we would not assume that Congress entrusted that 

task to an agency without a clear statement to that effect. 

Ibid. (quoting Utility Air, 573 U. S., at 324). That the statute at issue involved government benefits made no difference in King, and it makes no difference here. 

All this leads us to conclude that “[t]he basic and consequential tradeoffs” inherent in a mass debt cancellation 
 

Cite as: 600 U. S. ____ (2023) 25 

Opinion of the Court 

program “are ones that Congress would likely have intended for itself.” West Virginia, 597 U. S., at ___ (slip op., 

at 26). In such circumstances, we have required the Secretary to “point to ‘clear congressional authorization’” to justify the challenged program. Id., at ___, ___ (slip op., at 19, 

28) (quoting Utility Air, 573 U. S., at 324). And as we have 

already shown, the HEROES Act provides no authorization 

for the Secretary’s plan even when examined using the ordinary tools of statutory interpretation—let alone “clear 

congressional authorization” for such a program.9 

* * * 

It has become a disturbing feature of some recent opinions to criticize the decisions with which they disagree as 

going beyond the proper role of the judiciary. Today, we 

have concluded that an instrumentality created by Missouri, governed by Missouri, and answerable to Missouri is

indeed part of Missouri; that the words “waive or modify”

do not mean “completely rewrite”; and that our precedent—

old and new—requires that Congress speak clearly before a 

Department Secretary can unilaterally alter large sections

of the American economy. We have employed the traditional tools of judicial decisionmaking in doing so. Reasonable minds may disagree with our analysis—in fact, at least 

three do. See post, p. ___ (KAGAN, J., dissenting). We do 

—————— 9The dissent complains that our application of the major questions doctrine is a “tell” revealing that “ ‘normal’ statutory interpretation cannot 

sustain [our] decision.” Post, at 23, 30. Not so. As we have explained, 

the statutory text alone precludes the Secretary’s program. Today’s opinion simply reflects this Court’s familiar practice of providing multiple

grounds to support its conclusions. See, e.g., Kucana v. Holder, 558 U. S. 

233, 243–252 (2010) (interpreting the text of a federal immigration statute in the first instance, then citing the “presumption favoring judicial

review of administrative action” as an additional sufficient basis for the 

Court’s decision). The fact that multiple grounds support a result is usually regarded as a strength, not a weakness. 
 

26 BIDEN v. NEBRASKA 

Opinion of the Court 

not mistake this plainly heartfelt disagreement for disparagement. It is important that the public not be misled either. Any such misperception would be harmful to this institution and our country.

The judgment of the District Court for the Eastern District of Missouri is reversed, and the case is remanded for 

further proceedings consistent with this opinion. The Government’s application to vacate the Eighth Circuit’s injunction is denied as moot. 

It is so ordered. 
 

_________________ 

_________________ 

Cite as: 600 U. S. ____ (2023) 1 

BARRETT, J., concurring 

SUPREME COURT OF THE UNITED STATES 

No. 22–506 

JOSEPH R. BIDEN, PRESIDENT OF THE 

UNITED STATES, ET AL., PETITIONERS v. 

NEBRASKA, ET AL. 

ON WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED 

STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT 

[June 30, 2023] 

JUSTICE BARRETT, concurring. 

I join the Court’s opinion in full. I write separately to

address the States’ argument that, under the “major questions doctrine,” we can uphold the Secretary of Education’s

loan cancellation program only if he points to “‘clear congressional authorization’” for it. West Virginia v. EPA, 597 

U. S. ___, ___ (2022) (slip op., at 19). In this case, the Court 

applies the ordinary tools of statutory interpretation to conclude that the HEROES Act does not authorize the Secretary’s plan. Ante, at 12–18. The major questions doctrine 

reinforces that conclusion but is not necessary to it. Ante, 

at 25. 

Still, the parties have devoted significant attention to the

major questions doctrine, and there is an ongoing debate

about its source and status. I take seriously the charge that 

the doctrine is inconsistent with textualism. West Virginia, 

597 U. S., at ___ (KAGAN, J., dissenting) (slip op., at 28) 

(“When [textualism] would frustrate broader goals, special 

canons like the ‘major questions doctrine’ magically appear

as get-out-of-text-free cards”). And I grant that some articulations of the major questions doctrine on offer—most notably, that the doctrine is a substantive canon—should give

a textualist pause.

Yet for the reasons that follow, I do not see the major 
 

 

 

2 BIDEN v. NEBRASKA 

BARRETT, J., concurring 

questions doctrine that way. Rather, I understand it to emphasize the importance of context when a court interprets a

delegation to an administrative agency. Seen in this light,

the major questions doctrine is a tool for discerning—not

departing from—the text’s most natural interpretation. 

I 

A 

Substantive canons are rules of construction that advance values external to a statute.1 A. Barrett, Substantive 

Canons and Faithful Agency, 90 B. U. L. Rev. 109, 117 

(2010) (Barrett). Some substantive canons, like the rule of 

lenity, play the modest role of breaking a tie between

equally plausible interpretations of a statute. United States 

v. Santos, 553 U. S. 507, 514 (2008) (plurality opinion). 

Others are more aggressive—think of them as strong-form 

substantive canons. Unlike a tie-breaking rule, a strongform canon counsels a court to strain statutory text to advance a particular value. Barrett 168. There are many 

such canons on the books, including constitutional avoidance, the clear-statement federalism rules, and the presumption against retroactivity. Id., at 138–145, 172–173. 

Such rules effectively impose a “clarity tax” on Congress by 

demanding that it speak unequivocally if it wants to accomplish certain ends. J. Manning, Clear Statement Rules and 

the Constitution, 110 Colum. L. Rev. 399, 403 (2010). This 

“clear statement” requirement means that the better interpretation of a statute will not necessarily prevail. E.g., 

Boechler v. Commissioner, 596 U. S. ___, ___ (2022) (slip op., 

at 6) (“[I]n this context, better is not enough”). Instead, if 

—————— 1They stand in contrast to linguistic or descriptive canons, which are

designed to reflect grammatical rules (such as the punctuation canon) or

speech patterns (like the inclusion of some things implies the exclusion

of others). A. Barrett, Substantive Canons and Faithful Agency, 90 B. U. 

L. Rev. 109, 117 (2010). 
 

 

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BARRETT, J., concurring 

the better reading leads to a disfavored result (like provoking a serious constitutional question), the court will adopt 

an inferior-but-tenable reading to avoid it. So to achieve an 

end protected by a strong-form canon, Congress must close

all plausible off ramps. 

While many strong-form canons have a long historical

pedigree, they are “in significant tension with textualism” 

insofar as they instruct a court to adopt something other

than the statute’s most natural meaning. Barrett 123–124. 

The usual textualist enterprise involves “hear[ing] the 

words as they would sound in the mind of a skilled, objectively reasonable user of words.” F. Easterbrook, The Role 

of Original Intent in Statutory Construction, 11 Harv. J. L.

& Pub. Pol’y 59, 65 (1988). But a strong-form canon “load[s] 

the dice for or against a particular result” in order to serve 

a value that the judiciary has chosen to specially protect. 

A. Scalia, A Matter of Interpretation 27 (1997) (Scalia); see 

also Barrett 124, 168–169. Even if the judiciary’s adoption

of such canons can be reconciled with the Constitution,2 it 

is undeniable that they pose “a lot of trouble” for “the honest

textualist.” Scalia 28. 

—————— 2Whether the creation or application of strong-form canons exceeds the 

“judicial Power” conferred by Article III is a difficult question. On the 

one hand, “federal courts have been developing and applying [such] canons for as long as they have been interpreting statutes,” and that is some 

reason to regard the practice as consistent with the original understanding of the “judicial Power.” Barrett 155, 176. Moreover, many strongform canons advance constitutional values, which heightens their claim

to legitimacy. Id., at 168–170. On the other hand, these canons advance 

constitutional values by imposing prophylactic constraints on Congress—and that is in tension with the Constitution’s structure. Id., at 

174, 176. Thus, even assuming that the federal courts have not overstepped by adopting such canons in the past, I am wary of adopting new

ones—and if the major questions doctrine were a newly minted strongform canon, I would not embrace it. In my view, however, the major 

questions doctrine is neither new nor a strong-form canon. 
 

 

4 BIDEN v. NEBRASKA 

BARRETT, J., concurring 

B 

Some have characterized the major questions doctrine as

a strong-form substantive canon designed to enforce Article

I’s Vesting Clause. See, e.g., C. Sunstein, There Are Two 

“Major Questions” Doctrines, 73 Admin. L. Rev. 475, 483–

484 (2021) (asserting that recent cases apply the major 

questions doctrine as “a nondelegation canon”); L. Heinzerling, The Power Canons, 58 Wm. & Mary L. Rev. 1933, 

1946–1948 (2017) (describing the major questions doctrine 

as a “normative” canon that “is both a presumption against 

certain kinds of agency interpretations and an instruction 

to Congress”). On this view, the Court overprotects the nondelegation principle by increasing the cost of delegating authority to agencies—namely, by requiring Congress to

speak unequivocally in order to grant them significant rulemaking power. See Barrett 172–176; see also post, at 27 

(KAGAN, J., dissenting) (describing the major questions doctrine as a “heightened-specificity requirement”); Georgia v. 

President of the United States, 46 F. 4th 1283, 1314 (CA11

2022) (Anderson, J., concurring in part and dissenting in

part) (“[T]he major questions doctrine is essentially a clearstatement rule”). This “clarity tax” might prevent Congress 

from getting too close to the nondelegation line, especially 

since the “intelligible principle” test largely leaves Congress

to self-police. (So the doctrine would function like constitutional avoidance.) In addition or instead, the doctrine 

might reflect the judgment that it is so important for Congress to exercise “[a]ll legislative Powers,” Art. I, §1, that it

should be forced to think twice before delegating substantial discretion to agencies—even if the delegation is well

within Congress’s power to make. (So the doctrine would

function like the rule that Congress must speak clearly to

abrogate state sovereign immunity.) No matter which rationale justifies it, this “clear statement” version of the major questions doctrine “loads the dice” so that a plausible 
Cite as: 600 U. S. ____ (2023) 5 

BARRETT, J., concurring 

antidelegation interpretation wins even if the agency’s interpretation is better. 

While one could walk away from our major questions

cases with this impression, I do not read them this way. No 

doubt, many of our cases express an expectation of “clear 

congressional authorization” to support sweeping agency 

action. See, e.g., West Virginia, 597 U. S., at ___ (slip op., 

at 19); Utility Air Regulatory Group v. EPA, 573 U. S. 302, 

324 (2014); see also Alabama Assn. of Realtors v. Department of Health and Human Servs., 594 U. S. ___, ___ (2021) 

(per curiam) (slip op., at 6). But none requires “an ‘unequivocal declaration’” from Congress authorizing the precise

agency action under review, as our clear-statement cases do

in their respective domains. See Financial Oversight and 

Management Bd. for P. R. v. Centro De Periodismo Investigativo, Inc., 598 U. S. ___, ___ (2023) (slip op., at 6). And 

none purports to depart from the best interpretation of the

text—the hallmark of a true clear-statement rule. 

So what work is the major questions doctrine doing in 

these cases? I will give you the long answer, but here is the

short one: The doctrine serves as an interpretive tool reflecting “common sense as to the manner in which Congress

is likely to delegate a policy decision of such economic and 

political magnitude to an administrative agency.” FDA v. 

Brown & Williamson Tobacco Corp., 529 U. S. 120, 133 

(2000). 

II 

The major questions doctrine situates text in context,

which is how textualists, like all interpreters, approach the 

task at hand. C. Nelson, What Is Textualism? 91 Va. 

L. Rev. 347, 348 (2005) (“[N]o ‘textualist’ favors isolating 

statutory language from its surrounding context”); Scalia

37 (“In textual interpretation, context is everything”). After 

all, the meaning of a word depends on the circumstances in

which it is used. J. Manning, The Absurdity Doctrine, 116 
 

 

6 BIDEN v. NEBRASKA 

BARRETT, J., concurring 

Harv. L. Rev. 2387, 2457 (2003) (Manning). To strip a word

from its context is to strip that word of its meaning. 

Context is not found exclusively “‘within the four corners’ 

of a statute.” Id., at 2456. Background legal conventions,

for instance, are part of the statute’s context. F. Easterbrook, The Case of the Speluncean Explorers: Revisited, 

112 Harv. L. Rev. 1876, 1913 (1999) (“Language takes

meaning from its linguistic context,” as well as “historical 

and governmental contexts”). Thus, courts apply a presumption of mens rea to criminal statutes, Xiulu Ruan v. 

United States, 597 U. S. ___, ___ (2022) (slip op., at 5), and 

a presumption of equitable tolling to statutes of limitations, 

Irwin v. Department of Veterans Affairs, 498 U. S. 89, 95– 

96 (1990). It is also well established that “[w]here Congress

employs a term of art obviously transplanted from another

legal source, it brings the old soil with it.” George v. 

McDonough, 596 U. S. ___, ___ (2022) (slip op., at 5) (internal quotation marks omitted). I could go on. See, e.g., 

Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 

U. S. 118, 132 (2014) (federal causes of action are construed 

“to incorporate a requirement of proximate causation”); 

Wisconsin Dept. of Revenue v. William Wrigley, Jr., Co., 505 

U. S. 214, 231 (1992) (“de minimis non curat lex”). As it 

happens, “[t]he notion that some things ‘go without saying’ 

applies to legislation just as it does to everyday life.” Bond 

v. United States, 572 U. S. 844, 857 (2014). 

Context also includes common sense, which is another 

thing that “goes without saying.” Case reporters and casebooks brim with illustrations of why literalism—the antithesis of context-driven interpretation—falls short. Consider 

the classic example of a statute imposing criminal penalties 

on “‘whoever drew blood in the streets.’” United States v. 

Kirby, 7 Wall. 482, 487 (1869). Read literally, the statute

would cover a surgeon accessing a vein of a person in the 

street. But “common sense” counsels otherwise, ibid., be-
 

 

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BARRETT, J., concurring 

cause in the context of the criminal code, a reasonable observer would “expect the term ‘drew blood’ to describe a violent act,” Manning 2461. Common sense similarly bears

on judgments like whether a floating home is a “vessel,” 

Lozman v. Riviera Beach, 568 U. S. 115, 120–121 (2013), 

whether tomatoes are “vegetables,” Nix v. Hedden, 149 

U. S. 304, 306–307 (1893), and whether a skin irritant is a 

“chemical weapon,” Bond, 572 U. S., at 860–862. 

Why is any of this relevant to the major questions doctrine? Because context is also relevant to interpreting the 

scope of a delegation. Think about agency law, which is all 

about delegations. When an agent acts on behalf of a principal, she “has actual authority to take action designated or

implied in the principal’s manifestations to the agent . . . as 

the agent reasonably understands [those] manifestations.” 

Restatement (Third) of Agency §2.02(1) (2005). Whether an 

agent’s understanding is reasonable depends on “[t]he context in which the principal and agent interact,” including

their “[p]rior dealings,” industry “customs and usages,” and

“the nature of the principal’s business or the principal’s personal situation.” Id., §2.02, Comment e (emphasis added). 

With that in mind, imagine that a grocer instructs a clerk 

to “go to the orchard and buy apples for the store.” Though

this grant of apple-purchasing authority sounds unqualified, a reasonable clerk would know that there are limits. 

For example, if the grocer usually keeps 200 apples on

hand, the clerk does not have actual authority to buy

1,000—the grocer would have spoken more directly if she 

meant to authorize such an out-of-the-ordinary purchase.

A clerk who disregards context and stretches the words to 

their fullest will not have a job for long. 

This is consistent with how we communicate conversationally. Consider a parent who hires a babysitter to watch

her young children over the weekend. As she walks out the 

door, the parent hands the babysitter her credit card and 

says: “Make sure the kids have fun.” Emboldened, the 
 

 

8 BIDEN v. NEBRASKA 

BARRETT, J., concurring 

babysitter takes the kids on a road trip to an amusement 

park, where they spend two days on rollercoasters and one 

night in a hotel. Was the babysitter’s trip consistent with 

the parent’s instruction? Maybe in a literal sense, because

the instruction was open-ended. But was the trip consistent with a reasonable understanding of the parent’s instruction? Highly doubtful. In the normal course, permission to spend money on fun authorizes a babysitter to take

children to the local ice cream parlor or movie theater, not

on a multiday excursion to an out-of-town amusement park.

If a parent were willing to greenlight a trip that big, we

would expect much more clarity than a general instruction 

to “make sure the kids have fun.” 

But what if there is more to the story? Perhaps there is

obvious contextual evidence that the babysitter’s jaunt was

permissible—for example, maybe the parent left tickets to

the amusement park on the counter. Other clues, though

less obvious, can also demonstrate that the babysitter took

a reasonable view of the parent’s instruction. Perhaps the

parent showed the babysitter where the suitcases are, in 

the event that she took the children somewhere overnight. 

Or maybe the parent mentioned that she had budgeted 

$2,000 for weekend entertainment. Indeed, some relevant 

points of context may not have been communicated by the 

parent at all. For instance, we might view the parent’s

statement differently if this babysitter had taken the children on such trips before or if the babysitter were a grandparent.

In my view, the major questions doctrine grows out of 

these same commonsense principles of communication. 

Just as we would expect a parent to give more than a general instruction if she intended to authorize a babysitterled getaway, we also “expect Congress to speak clearly if it

wishes to assign to an agency decisions of vast ‘economic

and political significance.’” Utility Air, 573 U. S., at 324. 

That clarity may come from specific words in the statute, 
Cite as: 600 U. S. ____ (2023) 9 

BARRETT, J., concurring 

but context can also do the trick. Surrounding circumstances, whether contained within the statutory scheme or 

external to it, can narrow or broaden the scope of a delegation to an agency.

This expectation of clarity is rooted in the basic premise 

that Congress normally “intends to make major policy decisions itself, not leave those decisions to agencies.” United 

States Telecom Assn. v. FCC, 855 F. 3d 381, 419 (CADC 

2017) (Kavanaugh, J., dissenting from denial of reh’g en 

banc). Or, as Justice Breyer once observed, “Congress is 

more likely to have focused upon, and answered, major

questions, while leaving interstitial matters [for agencies] 

to answer themselves in the course of a statute’s daily administration.” S. Breyer, Judicial Review of Questions of

Law and Policy, 38 Admin. L. Rev. 363, 370 (1986); see also 

A. Gluck & L. Bressman, Statutory Interpretation From the 

Inside—An Empirical Study of Congressional Drafting,

Delegation, and the Canons: Part I, 65 Stan. L. Rev. 901, 

1003–1006 (2013). That makes eminent sense in light of

our constitutional structure, which is itself part of the legal 

context framing any delegation. Because the Constitution 

vests Congress with “[a]ll legislative Powers,” Art. I, §1, a 

reasonable interpreter would expect it to make the big-time

policy calls itself, rather than pawning them off to another 

branch. See West Virginia, 597 U. S., at ___ (slip op., at 19) 

(explaining that the major questions doctrine rests on “both

separation of powers principles and a practical understanding of legislative intent”). 

Crucially, treating the Constitution’s structure as part of 

the context in which a delegation occurs is not the same as 

using a clear-statement rule to overenforce Article I’s nondelegation principle (which, again, is the rationale behind

the substantive-canon view of the major questions doctrine). My point is simply that in a system of separated

powers, a reasonably informed interpreter would expect 
 

 

10 BIDEN v. NEBRASKA 

BARRETT, J., concurring 

Congress to legislate on “important subjects” while delegating away only “the details.” Wayman v. Southard, 10 

Wheat. 1, 43 (1825). That is different from a normative rule 

that discourages Congress from empowering agencies. To 

see what I mean, return to the ambitious babysitter. Our 

expectation of clearer authorization for the amusementpark trip is not about discouraging the parent from giving

significant leeway to the babysitter or forcing the parent to 

think hard before doing so. Instead, it reflects the intuition 

that the parent is in charge and sets the terms for the 

babysitter—so if a judgment is significant, we expect the 

parent to make it. If, by contrast, one parent left the children with the other parent for the weekend, we would view

the same trip differently because the parents share authority over the children. In short, the balance of power between those in a relationship inevitably frames our understanding of their communications. And when it comes to 

the Nation’s policy, the Constitution gives Congress the

reins—a point of context that no reasonable interpreter 

could ignore.

Given these baseline assumptions, an interpreter should

“typically greet” an agency’s claim to “extravagant statutory power” with at least some “measure of skepticism.” 

Utility Air, 573 U. S., at 324. That skepticism is neither 

“made-up” nor “new.” Post, at 24, 29 (KAGAN, J., dissenting). On the contrary, it appears in a line of decisions spanning at least 40 years. E.g., King v. Burwell, 576 U. S. 473, 

485–486 (2015); Gonzales v. Oregon, 546 U. S. 243, 267–268 

(2006); Brown & Williamson, 529 U. S., at 159–160; Industrial Union Dept., AFL–CIO v. American Petroleum Institute, 448 U. S. 607, 645 (1980) (plurality opinion).3 

Still, this skepticism does not mean that courts have an 

—————— 3 Indeed, the doctrine may have even deeper roots. See ICC v. Cincinnati, N. O. & T. P. R. Co., 167 U. S. 479, 494–495 (1897) (explaining that

for agency assertions of “vast and comprehensive” power, “no just rule of

construction would tolerate a grant of such power by mere implication”). 
 

 

 

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BARRETT, J., concurring 

obligation (or even permission) to choose an 

inferior-but-tenable alternative that curbs the agency’s authority—and that marks a key difference between my view

and the “clear statement” view of the major questions doctrine. In some cases, the court’s initial skepticism might be

overcome by text directly authorizing the agency action or

context demonstrating that the agency’s interpretation is

convincing. (And because context can suffice, I disagree 

with JUSTICE KAGAN’s critique that “[t]he doctrine forces 

Congress to delegate in highly specific terms.” Post, at 24.)

If so, the court must adopt the agency’s reading despite the 

“majorness” of the question.4 In other cases, however, the 

court might conclude that the agency’s expansive reading,

even if “plausible,” is not the best. West Virginia, 597 U. S., 

at ___ (slip op., at 19). In that event, the major questions

doctrine plays a role, because it helps explain the court’s

conclusion that the agency overreached. 

Consider Brown & Williamson, in which we rejected the 

Food and Drug Administration’s (FDA’s) determination 

that tobacco products were within its regulatory purview.

529 U. S., at 131. The agency’s assertion of authority—

which depended on the argument that nicotine is a “‘drug’” 

and that cigarettes and smokeless tobacco are “‘drug delivery devices’”—would have been plausible if the relevant 

statutory text were read in a vacuum. Ibid. But a vacuum 

is no home for a textualist. Instead, we stressed that the 

“meaning” of a word or phrase “may only become evident 

when placed in context.” Id., at 132 (emphasis added). And 

the critical context in Brown & Williamson was tobacco’s 

—————— 4 I am dealing only with statutory interpretation, not the separate argument that a statutory delegation exceeds constitutional limits. See 

Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 474 (2001)

(describing a delegation held unconstitutional because it “conferred authority to regulate the entire economy on the basis of ” an imprecise 

standard). 
 

12 BIDEN v. NEBRASKA 

BARRETT, J., concurring 

“unique political history”: the FDA’s longstanding disavowal of authority to regulate it, Congress’s creation of “a

distinct regulatory scheme for tobacco products,” and the 

tobacco industry’s “significant” role in “the American economy.” Id., at 159–160. In light of those considerations, we

concluded that “Congress could not have intended to delegate a decision of such economic and political significance

to an agency in so cryptic a fashion.” Id., at 160. 

We have also been “[s]keptical of mismatches” between 

broad “invocations of power by agencies” and relatively narrow “statutes that purport to delegate that power.” In re 

MCP No. 165, OSHA, Interim Final Rule: Covid–19 Vaccination and Testing, 20 F. 4th 264, 272 (CA6 2021) (Sutton,

C. J., dissenting from denial of initial hearing en banc). 

Just as an instruction to “pick up dessert” is not permission

to buy a four-tier wedding cake, Congress’s use of a “subtle

device” is not authorization for agency action of “enormous

importance.” MCI Telecommunications Corp. v. American 

Telephone & Telegraph Co., 512 U. S. 218, 231 (1994); cf. 

Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 

468 (2001) (Congress does not “hide elephants in mouseholes”). This principle explains why the Centers for Disease

Control and Prevention’s (CDC’s) general authority to

“‘prevent the . . . spread of communicable diseases’” did not 

authorize a nationwide eviction moratorium. Alabama 

Assn. of Realtors, 594 U. S., at ___–___, ___ (slip op., at 2–3, 

6). The statute, we observed, was a “wafer-thin reed” that 

could not support the assertion of “such sweeping power.” 

Id., at ___ (slip op., at 7). Likewise, in West Virginia, we 

held that a “little-used backwater” provision in the Clean 

Air Act could not justify an Environmental Protection 

Agency (EPA) rule that would “restructur[e] the Nation’s

overall mix of electricity generation.” 597 U. S., at ___, ___ 

(slip op., at 16, 26).

Another telltale sign that an agency may have transgressed its statutory authority is when it regulates outside 
Cite as: 600 U. S. ____ (2023) 13 

BARRETT, J., concurring 

its wheelhouse. For instance, in Gonzales v. Oregon, we rebuffed an interpretive rule from the Attorney General that

restricted the use of controlled substances in physician-assisted suicide. 546 U. S., at 254, 275. This judgment, we 

explained, was a medical one that lay beyond the Attorney

General’s expertise, and so a sturdier source of statutory 

authority than “an implicit delegation” was required. Id., 

at 267–268. Likewise, in King v. Burwell, we blocked the 

Internal Revenue Service’s (IRS’s) attempt to decide 

whether the Affordable Care Act’s tax credits could be available on federally established exchanges. 576 U. S., at 485– 

486. Among other things, the IRS’s lack of “expertise in 

crafting health insurance policy” made us think that “had 

Congress wished to assign that question to an agency, it 

surely would have done so expressly.” Id., at 486. Echoing 

the theme, our reasoning in Alabama Association of Realtors rested partly on the fact that the CDC’s eviction moratorium “intrude[d] into . . . the landlord-tenant relationship”—hardly the day-in, day-out work of a public-health 

agency. 594 U. S., at ___ (slip op., at 6). National Federation of Independent Business v. OSHA is of a piece. 595 

U. S. ___ (2022) (per curiam). There, we held that the Occupational Safety and Health Administration’s (OSHA’s) 

authority to ensure “‘safe and healthful working conditions’” did not encompass the power to mandate the vaccination of employees; as we explained, the statute empowered the agency “to set workplace safety standards, not 

broad public health measures.” Id., at ___, ___ (slip op., at 

2, 6). The shared intuition behind these cases is that a reasonable speaker would not understand Congress to confer 

an unusual form of authority without saying more. 

We have also pumped the brakes when “an agency claims

to discover in a long-extant statute an unheralded power to 

regulate ‘a significant portion of the American economy.’” 

Utility Air, 573 U. S., at 324. Of course, an agency’s post-
 

 

14 BIDEN v. NEBRASKA 

BARRETT, J., concurring 

enactment conduct does not control the meaning of a statute, but “this Court has long said that courts may consider 

the consistency of an agency’s views when we weigh the persuasiveness of any interpretation it proffers in court.” 

Bittner v. United States, 598 U. S. 85, 97 (2023) (citing Skidmore v. Swift & Co., 323 U. S. 134, 140 (1944)). The 

agency’s track record can be particularly probative in this 

context: A longstanding “want of assertion of power by

those who presumably would be alert to exercise it” may

provide some clue that the power was never conferred. FTC 

v. Bunte Brothers, Inc., 312 U. S. 349, 352 (1941). Once 

again, Brown & Williamson is a good example. There, we 

balked at the FDA’s novel attempt to regulate tobacco in 

part because this move was “[c]ontrary to its representations to Congress since 1914.” 529 U. S., at 159. And in 

Utility Air, we were dubious when the EPA discovered 

“newfound authority” in the Clean Air Act that would have 

allowed it to require greenhouse-gas permits for “millions 

of small sources—including retail stores, offices, apartment

buildings, shopping centers, schools, and churches.” 573 

U. S., at 328. 

If the major questions doctrine were a substantive canon,

then the common thread in these cases would be that we 

“exchange[d] the most natural reading of a statute for a

bearable one more protective of a judicially specified value.” 

Barrett 111. But by my lights, the Court arrived at the 

most plausible reading of the statute in these cases. To be 

sure, “[a]ll of these regulatory assertions had a colorable 

textual basis.” West Virginia, 597 U. S., at ___ (slip op., at 

18). In each case, we could have “[p]ut on blinders” and

confined ourselves to the four corners of the statute, and we 

might have reached a different outcome. Sykes v. United 

States, 564 U. S. 1, 43 (2011) (KAGAN, J., dissenting). Instead, we took “off those blinders,” “view[ed] the statute as

a whole,” ibid., and considered context that would be important to a reasonable observer. With the full picture in 
 

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BARRETT, J., concurring 

view, it became evident in each case that the agency’s assertion of “highly consequential power” went “beyond what

Congress could reasonably be understood to have granted.” 

West Virginia, 597 U. S., at ___ (slip op., at 20). 

III 

As for today’s case: The Court surely could have “hi[t] the 

send button,” post, at 23 (KAGAN, J., dissenting), after the 

routine statutory analysis set out in Part III–A. But it is 

nothing new for a court to punctuate its conclusion with an

additional point, and the major questions doctrine is a good

one here. Ante, at 25, n. 9. It is obviously true that the

Secretary’s loan cancellation program has “vast ‘economic

and political significance.’” Utility Air, 573 U. S., at 324. 

That matters not because agencies are incapable of making

highly consequential decisions, but rather because an initiative of this scope, cost, and political salience is not the type

that Congress lightly delegates to an agency. And for the 

reasons given by the Court, the HEROES Act provides no 

indication that Congress empowered the Secretary to do anything of the sort. Ante, at 12–18, 25. 

Granted, some context clues from past major questions

cases are absent here—for example, this is not a case where 

the agency is operating entirely outside its usual domain. 

But the doctrine is not an on-off switch that flips when a 

critical mass of factors is present—again, it simply reflects 

“common sense as to the manner in which Congress is likely 

to delegate a policy decision of such economic and political

magnitude.” Brown & Williamson, 529 U. S., at 133. Common sense tells us that as more indicators from our previous major questions cases are present, the less likely it is 

that Congress would have delegated the power to the 

agency without saying so more clearly.

Here, enough of those indicators are present to demonstrate that the Secretary has gone far “beyond what Congress could reasonably be understood to have granted” in 
 

16 BIDEN v. NEBRASKA 

BARRETT, J., concurring 

the HEROES Act. West Virginia, 597 U. S., at ___ (slip op., 

at 20). Our decision today does not “trump” the statutory 

text, nor does it make this Court the “arbiter” of “national 

policy.” Post, at 24–25 (KAGAN, J., dissenting). Instead, it 

gives Congress’s words their best reading. 

* * * 

The major questions doctrine has an important role to 

play when courts review agency action of “vast ‘economic 

and political significance.’” Utility Air, 573 U. S., at 324. 

But the doctrine should not be taken for more than it is— 

the familiar principle that we do not interpret a statute for 

all it is worth when a reasonable person would not read it 

that way. 
 

_________________ 

_________________ 

Cite as: 600 U. S. ____ (2023) 1 

KAGAN, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

No. 22–506 

JOSEPH R. BIDEN, PRESIDENT OF THE 

UNITED STATES, ET AL., PETITIONERS v. 

NEBRASKA, ET AL. 

ON WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED 

STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT 

[June 30, 2023] 

JUSTICE KAGAN, with whom JUSTICE SOTOMAYOR and 

JUSTICE JACKSON join, dissenting. 

In every respect, the Court today exceeds its proper, limited role in our Nation’s governance. 

Some 20 years ago, Congress enacted legislation, called 

the HEROES Act, authorizing the Secretary of Education 

to provide relief to student-loan borrowers when a national 

emergency struck. The Secretary’s authority was bounded: 

He could do only what was “necessary” to alleviate the 

emergency’s impact on affected borrowers’ ability to repay

their student loans. 20 U. S. C. §1098bb(a)(2). But within 

that bounded area, Congress gave discretion to the Secretary. He could “waive or modify any statutory or regulatory 

provision” applying to federal student-loan programs, including provisions relating to loan repayment and forgiveness. And in so doing, he could replace the old provisions with new “terms and conditions.” §§1098bb(a)(1), 

(b)(2). The Secretary, that is, could give the relief that was

needed, in the form he deemed most appropriate, to counteract the effects of a national emergency on borrowers’ capacity to repay. That may have been a good idea, or it may 

have been a bad idea. Either way, it was what Congress 

said. 

When COVID hit, two Secretaries serving two different 
 

 

2 BIDEN v. NEBRASKA 

KAGAN, J., dissenting 

Presidents decided to use their HEROES Act authority.

The first suspended loan repayments and interest accrual

for all federally held student loans. The second continued 

that policy for a time, and then replaced it with the loan

forgiveness plan at issue here, granting most low- and middle-income borrowers up to $10,000 in debt relief. Both relied on the HEROES Act language cited above. In establishing the loan forgiveness plan, the current Secretary

scratched the pre-existing conditions for loan discharge, 

and specified different conditions, opening loan forgiveness 

to more borrowers. So he “waive[d]” and “modif[ied]” statutory and regulatory provisions and applied other “terms 

and conditions” in their stead. That may have been a good 

idea, or it may have been a bad idea. Either way, the Secretary did only what Congress had told him he could. 

The Court’s first overreach in this case is deciding it at

all. Under Article III of the Constitution, a plaintiff must 

have standing to challenge a government action. And that 

requires a personal stake—an injury in fact. We do not allow plaintiffs to bring suit just because they oppose a policy. 

Neither do we allow plaintiffs to rely on injuries suffered by 

others. Those rules may sound technical, but they enforce

“fundamental limits on federal judicial power.” Allen v. 

Wright, 468 U. S. 737, 750 (1984). They keep courts acting 

like courts. Or stated the other way around, they prevent 

courts from acting like this Court does today. The plaintiffs

in this case are six States that have no personal stake in

the Secretary’s loan forgiveness plan. They are classic ideological plaintiffs: They think the plan a very bad idea, but

they are no worse off because the Secretary differs. In giving those States a forum—in adjudicating their complaint—

the Court forgets its proper role. The Court acts as though

it is an arbiter of political and policy disputes, rather than

of cases and controversies. 

And the Court’s role confusion persists when it takes up

the merits. For years, this Court has insisted that the way 
 

 

Cite as: 600 U. S. ____ (2023) 3 

KAGAN, J., dissenting 

to keep judges’ policy views and preferences out of judicial 

decisionmaking is to hew to a statute’s text. The HEROES 

Act’s text settles the legality of the Secretary’s loan forgiveness plan. The statute provides the Secretary with

broad authority to give emergency relief to student-loan 

borrowers, including by altering usual discharge rules. 

What the Secretary did fits comfortably within that delegation. But the Court forbids him to proceed. As in other recent cases, the rules of the game change when Congress enacts broad delegations allowing agencies to take substantial 

regulatory measures. See, e.g., West Virginia v. EPA, 597 

U. S. ___ (2022). Then, as in this case, the Court reads statutes unnaturally, seeking to cabin their evident scope. And 

the Court applies heightened-specificity requirements, 

thwarting Congress’s efforts to ensure adequate responses 

to unforeseen events. The result here is that the Court substitutes itself for Congress and the Executive Branch in 

making national policy about student-loan forgiveness. 

Congress authorized the forgiveness plan (among many 

other actions); the Secretary put it in place; and the President would have been accountable for its success or failure. 

But this Court today decides that some 40 million Americans will not receive the benefits the plan provides, because 

(so says the Court) that assistance is too “significan[t].” 

Ante, at 20–21. With all respect, I dissent. 

I 

“No principle is more fundamental to the judiciary’s

proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases 

or controversies.” Simon v. Eastern Ky. Welfare Rights Organization, 426 U. S. 26, 37 (1976). In our system, 

“[f]ederal courts do not possess a roving commission to publicly opine on every legal question.” TransUnion LLC v. 

Ramirez, 594 U. S. ___, ___ (2021) (slip op., at 8). Nor do 

they “exercise general legal oversight of the Legislative and 
 

 

 

 

 

4 BIDEN v. NEBRASKA 

KAGAN, J., dissenting 

Executive Branches.” Ibid. A court may address the legality of a government action only if the person challenging it

has standing—which requires that the person have suffered a “concrete and particularized injury.” Ibid. It is not 

enough for the plaintiff to assert a “generalized grievance[]” 

about government policy. Gill v. Whitford, 585 U. S. ___, 

___ (2018) (slip op., at 13). And critically here, the plaintiff

cannot rest its claim on a third party’s rights and interests.

See Warth v. Seldin, 422 U. S. 490, 499 (1975). The plaintiff

needs its own stake—a “personal stake”—in the outcome of 

the litigation. TransUnion, 594 U. S., at ___ (slip op., at 7). 

If the plaintiff has no such stake, a court must stop in its

tracks. To decide the case is to exceed the permissible

boundaries of the judicial role.

That is what the Court does today. The plaintiffs here

are six States: Arkansas, Iowa, Kansas, Missouri, Nebraska, and South Carolina. They oppose the Secretary’s 

loan cancellation plan on varied policy and legal grounds.

But as everyone agrees, those objections are just general 

grievances; they do not show the particularized injury

needed to bring suit. And the States have no straightforward way of making that showing—of explaining how they

are harmed by a plan that reduces individual borrowers’

federal student-loan debt. So the States have thrown no 

fewer than four different theories of injury against the wall, 

hoping that a court anxious to get to the merits will say that 

one of them sticks. The most that can be said of the theory 

the majority selects, proffered solely by Missouri, is that it 

is less risible than the others. It still contravenes a bedrock 

principle of standing law—that a plaintiff cannot ride on 

someone else’s injury. Missouri is doing just that in relying 

on injuries to the Missouri Higher Education Loan Authority (MOHELA), a legally and financially independent public 

corporation. And that means the Court, by deciding this 

case, exercises authority it does not have. It violates the 

Constitution. 
 

Cite as: 600 U. S. ____ (2023) 5 

KAGAN, J., dissenting 

A 

Missouri’s theory of standing, as accepted by the majority, goes as follows. MOHELA is a state-created corporation 

participating in the student-loan market. As part of that

activity, it has contracted with the Department of Education to service federally held loans—essentially, to handle 

billing and collect payments for the Federal Government.

Under that contract, MOHELA receives an administrative 

fee for each loan serviced. When a loan is canceled, 

MOHELA will not get a fee; so the Secretary’s plan will cost 

MOHELA money. And if MOHELA is harmed, Missouri 

must be harmed, because the corporation is a “public instrumentality” and, as such, “part of Missouri’s government.” Brief for Respondents 16–17; see ante, at 8–9. 

Up to the last step, the theory is unexceptionable—except 

that it points to MOHELA as the proper plaintiff. Financial 

harm is a classic injury in fact. MOHELA plausibly alleges 

that it will suffer that harm as a result of the Secretary’s

plan. So MOHELA can sue the Secretary, as the Government readily concedes. See Tr. of Oral Arg. 18. But not 

even Missouri, and not even the majority, claims that 

MOHELA’s revenue loss gets passed through to the State. 

As further discussed below, MOHELA is financially independent from Missouri—as corporations typically are, the

better to insulate their creators from financial loss. See infra, at 6. So MOHELA’s revenue decline—the injury in fact

claimed to justify this suit—is not in fact Missouri’s. The 

State’s treasury will not be out one penny because of the

Secretary’s plan. The revenue loss allegedly grounding this

case is MOHELA’s alone. 

Which leads to an obvious question: Where’s MOHELA? 

The answer is: As far from this suit as it can manage.

MOHELA could have brought this suit. It possesses the

power under Missouri law to “sue and be sued” in its own 

name. Mo. Rev. Stat. §173.385.1(3) (2016). But MOHELA 

is not a party here. Nor is it an amicus. Nor is it even a 
 

 

6 BIDEN v. NEBRASKA 

KAGAN, J., dissenting 

rooting bystander. MOHELA was “not involved with the 

decision of the Missouri Attorney General’s Office” to file 

this suit. Letter from Appellees in No. 22–3179 (CA8), p. 3 

(Nov. 1, 2022). And MOHELA did not cooperate with the

Attorney General’s efforts. When the AG wanted documents relating to MOHELA’s loan-servicing contract, to aid

him in putting forward the State’s standing theory, he had 

to file formal “sunshine law” demands on the entity. See 

id., at 3–4. MOHELA had no interest in assisting voluntarily.

If all that makes you suspect that MOHELA is distinct 

from the State, you would be right. And that is so as a matter of law and financing alike. Yes, MOHELA is a creature 

of state statute, a public instrumentality established to 

serve a public function. §173.360. But the law sets up

MOHELA as a corporation—a so-called “body corporate”—

with a “[s]eparate legal personality.” Ibid.; First Nat. City 

Bank v. Banco Para el Comercio Exterior de Cuba, 462 U. S. 

611, 625 (1983) (Bancec). Or said a bit differently,

MOHELA is—like the lion’s share of corporations, whether 

public or private—a “separate legal [entity] with distinct legal rights and obligations” from those belonging to its creator. Agency for Int’l Development v. Alliance for Open Society Int’l Inc., 591 U. S. ___, ___ (2020) (slip op., at 5). 

MOHELA, for example, has the power to contract with

other entities, which is how it entered into a loan-servicing 

contract with the Department of Education. See 

§173.385.1(15). MOHELA’s assets, including the fees 

gained from that contract, are not “part of the revenue of 

the [S]tate” and cannot be “used for the payment of debt 

incurred by the [S]tate.” §§173.386, 173.425. On the other 

side of the ledger, MOHELA’s debts are MOHELA’s alone; 

Missouri cannot be liable for them. §173.410. And as noted 

earlier, MOHELA has the power to “sue and be sued” independent of Missouri, so it can both “prosecute and defend” 
 

 

 

Cite as: 600 U. S. ____ (2023) 7 

KAGAN, J., dissenting 

all its varied interests. §173.385.1(3); see supra, at 5. Indeed, before this case, Missouri had never tried to appear

in court on MOHELA’s behalf. That is no surprise. In the 

statutory scheme, independence is everywhere: State law 

created MOHELA, but in so doing set it apart.

The Missouri Supreme Court itself recognized as much in 

addressing a near-carbon-copy state instrumentality.

MOHEFA (note the one-letter difference) issues bonds to

support various health and educational institutions in the 

State. Like MOHELA, MOHEFA is understood as a “public 

instrumentality” serving a “public function.” Menorah 

Medical Center v. Health and Ed. Facilities Auth., 584 S. W. 

2d 73, 76 (Mo. 1979). And like MOHELA, MOHEFA has a 

board appointed by the Governor and sends annual reports

to a state department. See Mo. Rev. Stat. §§360.020,

360.140 (1978); ante, at 9 (suggesting those features matter). But the State Supreme Court, when confronted with

a claim that MOHEFA’s undertakings should be ascribed to

the State, could hardly have been more dismissive. The 

court thought it beyond dispute that MOHEFA “is not the 

[S]tate,” and that its activities are not state activities. Menorah, 584 S. W. 2d, at 78. Citing MOHEFA’s financial and 

legal independence, the court explained that “[s]imilar bodies have been adjudged as ‘separate entities’ from” Missouri. Ibid. MOHELA is no different. 

Under our usual standing rules, that separation would 

matter—indeed, would decide this case. A plaintiff, this 

Court has held time and again, cannot rest its claim to judicial relief on the “legal rights and interests” of third parties. Warth, 422 U. S., at 499. And MOHELA qualifies as

such a party, for all the reasons just given. That MOHELA 

is publicly created makes not a whit of difference: When a 

“government instrumentalit[y]” is “established as [a] juridical entit[y] distinct and independent from [its] sovereign,” 

the law—including the law of standing—is supposed to

treat it that way. Bancec, 462 U. S., at 626–627; see Sloan 
 

8 BIDEN v. NEBRASKA 

KAGAN, J., dissenting 

Shipyards Corp. v. United States Shipping Bd. Emergency 

Fleet Corporation, 258 U. S. 549, 567 (1922). So this case 

should have been open-and-shut. Missouri and MOHELA 

are legally, and also financially, “separate entities.” Menorah, 584 S. W. 2d, at 78. MOHELA is fully capable of representing its own interests, and always has done so before. 

The injury to MOHELA thus does not entitle Missouri—under our normal standing rules—to go to court.

And those normal rules are more than just rules: They 

are, as this case shows, guarantors of our constitutional order. The requirement that the proper party—the party actually affected—challenge an action ensures that courts do 

not overstep their proper bounds. See Clapper v. Amnesty 

Int’l USA, 568 U. S. 398, 408–409 (2013) (“Relaxation of 

standing [rules] is directly related to the expansion of judicial power”). Without that requirement, courts become “forums for the ventilation of public grievances”—for settlement of ideological and political disputes. Valley Forge 

Christian College v. Americans United for Separation of 

Church and State, Inc., 454 U. S. 464, 473 (1982). The kind 

of forum this Court has become today. Is there a person in

America who thinks Missouri is here because it is worried 

about MOHELA’s loss of loan-servicing fees? I would like 

to meet him. Missouri is here because it thinks the Secretary’s loan cancellation plan makes for terrible, inequitable,

wasteful policy. And so too for Arkansas, Iowa, Kansas, Nebraska, and South Carolina. And maybe all of them are

right. But that question is not what this Court sits to decide. That question is “more appropriately addressed in the 

representative branches,” and by the broader public. Allen, 

468 U. S., at 751. Our third-party standing rules, like the 

rest of our standing doctrine, exist to separate powers in

that way—to send political issues to political institutions, 

and retain only legal controversies, brought by plaintiffs 

who have suffered real legal injury. If MOHELA had 

brought this suit, we would have had to resolve it, however 
 

 

Cite as: 600 U. S. ____ (2023) 9 

KAGAN, J., dissenting 

hot or divisive. But Missouri? In adjudicating Missouri’s

claim, the majority reaches out to decide a matter it has no 

business deciding. It blows through a constitutional guardrail intended to keep courts acting like courts. 

B 

The majority does not over-expend itself in defending 

that action. It recites the State’s assertion that a “harm to 

MOHELA is also a harm to Missouri” because the former is 

the latter’s instrumentality. Ante, at 8. But in doing so, the 

majority barely addresses MOHELA’s separate corporate

identity, its financial independence, and its distinct legal 

rights. In other words, the majority glides swiftly over all 

the attributes of MOHELA ensuring that its economic 

losses (1) are not passed on to the State and (2) can be rectified (if there is legal wrong) without the State’s help. The 

majority is left to argue from a couple of prior decisions and 

a single idea, the latter relating to the State’s desire to “aid

Missouri college students.” Ante, at 9. But the decisions do 

not stand for what the majority claims. And the idea collides with another core precept of standing law. All in all, 

the majority’s justifications turn standing law from a pillar

of a restrained judiciary into nothing more than “a lawyer’s

game.” Massachusetts v. EPA, 549 U. S. 497, 548 (2007) 

(ROBERTS, C. J., dissenting). 

The majority mainly relies on Arkansas v. Texas, 346 

U. S. 368 (1953), but that case shows only that not all public

instrumentalities are the same. The Court there held that 

Arkansas could bring suit on behalf of a state university.

But it did so because the school lacked the financial and legal separateness MOHELA has. Arkansas, we observed, 

“owns all the property used by the University.” Id., at 370. 

And the suit, if successful, would have enhanced that property: The litigation sought to stop Texas from interfering

with a contract to build a medical facility on campus. For 

the same reason, the Court found that “any injury under 
 

10 BIDEN v. NEBRASKA 

KAGAN, J., dissenting 

the contract to the University is an injury to Arkansas”: The 

State was the principal beneficiary of the contract to improve its own property. Ibid. So Arkansas had the sort of 

direct financial interest not present here. And there is 

more: The University, the Court thought, could not sue on

its own. See ibid. The majority suggests otherwise, citing

a state-court decision holding that corporations usually

have the power to bring and defend legal actions. See ante, 

at 11–12. But the Arkansas Court referenced a different 

state-court decision—one holding that another state school

was “not authorized” to “sue and be sued.” Allen Eng. Co. 

v. Kays, 106 Ark. 174, 177, 152 S. W. 992, 993 (1913); see 

Arkansas, 346 U. S., at 370, and n. 9. That decision led this 

Court to conclude that Arkansas law treated “a suit against 

the University” as “a suit against the State.” Id., at 370. 

But if state law had not done so—as it does not in Missouri 

for MOHELA? See supra, at 6–7. The Court made clear 

that a State cannot stand in for an independent entity. The 

State, the Court said, “must, of course, represent an interest of her own and not merely that of her citizens or corporations.” Ibid. 

The majority’s second case—Lebron v. National Railroad 

Passenger Corporation, 513 U. S. 374 (1995)—is yet further 

afield. The issue there was whether Amtrak, a public corporation similar to MOHELA, had to comply with the First

Amendment. The Court held that it did, labeling Amtrak a 

state actor for that purpose. On the opposite view, we reasoned, a government could “evade the most solemn obligations imposed in the Constitution by simply resorting to the 

corporate form.” Id., at 397; see ibid. (noting that Plessy

could then be “resurrected by the simple device” of creating

a public corporation to run trains). But that did not mean 

Amtrak was equivalent to the Government for all purposes. 

Over and over, we cabined our holding that Amtrak was a 

state actor by adding a phrase like “for purposes of the First

Amendment” or other constitutional rights. Id., at 400; see 
 

 

Cite as: 600 U. S. ____ (2023) 11 

KAGAN, J., dissenting 

id., at 383 (Amtrak “must be regarded as a Government entity for First Amendment purposes”); id., at 392 (Amtrak is

“a Government entity for purposes of determining the constitutional rights of citizens”); id., at 394 (Amtrak is an “instrumentality of the United States for the purpose of individual rights guaranteed against the Government”); id., at 

397, 399, 400 (similar, similar, and similar). But for other 

purposes, a different rule might, or would, obtain. Our 

holding, we said, did not mean Amtrak had sovereign immunity. See id., at 392. And most relevant here, we reaffirmed that “[t]he State does not, by becoming a corporator,

identify itself with the corporation” for purposes of litigation. Id., at 398. Or said again, the Government is “not a 

party to suits brought by or against” its corporation. Id., at 

399. So what Lebron tells us about MOHELA is that it 

must comply with the Constitution. Lebron offers no support (more like the opposite) for the different view that 

MOHELA and Missouri are interchangeable parties in litigation.1 

—————— 1The same goes for the majority’s other case about Amtrak, which just

“reiterate[s]” Lebron’s reasoning. Ante, at 11; see Department of Transportation v. Association of American Railroads, 575 U. S. 43 (2015).

There too we held that Amtrak was a “governmental entity” for purposes 

of the “requirements of the Constitution”—specifically, the nondelegation doctrine. Id., at 54. And there too we kept our holding as limited as 

possible, repeatedly stating that we were treating Amtrak as the Government for that purpose alone. See, e.g., id., at 51 (“for purposes of

separation-of-powers analysis under the Constitution”); id., at 54 (“for

purposes of the Constitution’s separation of powers provisions”); id., at 

55 (“for purposes of determining the constitutional issues presented in 

this case”). As for any other purpose? Not a word to suggest the same 

result. And as even the majority concedes, “a public corporation can 

count as part of the State for some but not other purposes.” Ante, at 12, 

n. 3 (internal quotation marks omitted). The Amtrak decisions, to continue borrowing the majority’s language, “said nothing about, and had 

no reason to address, whether an injury to [a] public corporation is a 

harm to the [Government].” Ibid. 
 

 

 

12 BIDEN v. NEBRASKA 

KAGAN, J., dissenting 

Remaining is the majority’s unsupported—and insupportable—idea that the Secretary’s plan “necessarily” hurts

Missouri because it “impair[s]” MOHELA’s “efforts to aid 

[the State’s] college students.” Ante, at 9. To begin with, it

seems unlikely that the reduction in MOHELA’s revenues

resulting from the discharge would make it harder for students to “access student loans,” as the majority contends. 

Ante, at 8. MOHELA is not a lender; it services loans others 

have made. Which is probably why even Missouri has never 

tried to show that the Secretary’s plan will so detrimentally 

affect the State’s borrowers. In any event—and more important—such a harm to citizens cannot provide an escape 

hatch out of MOHELA’s legal and financial independence.

That is because of another canonical limit on a State’s ability to ride on third parties: A State may never sue the Federal Government based on its citizens’ rights and interests.

See Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 

458 U. S. 592, 610, n. 16 (1982); Haaland v. Brackeen, 599 

U. S. ___, ___, and n. 11 (2023) (slip op., at 32, and n. 11). 

Or said more technically, a “State does not have standing 

as parens patriae to bring an action against the Federal 

Government.” Ibid.; see Massachusetts v. Mellon, 262 U. S. 

447, 485–486 (1923). So Missouri cannot get standing by

asserting that a harm to MOHELA will harm the State’s

citizens. Missouri needs to show that the harm to 

MOHELA produces harm to the State itself. And because, 

as explained above, MOHELA was set up (as corporations

typically are) to insulate its creator from such derivative

harm, Missouri is incapable of making that showing. See 

supra, at 6. The separateness, both financial and legal, between MOHELA and Missouri makes MOHELA alone the 

proper party.

The author of today’s opinion once wrote that a 1970s-era 

standing decision “became emblematic” of “how utterly manipulable” this Court’s standing law is “if not taken seriously as a matter of judicial self-restraint.” Massachusetts, 
 

 

Cite as: 600 U. S. ____ (2023) 13 

KAGAN, J., dissenting 

549 U. S., at 548 (ROBERTS, C. J., dissenting). After today,

no one will have to go back 50 years for the classic case of

the Court manipulating standing doctrine, rather than 

obeying the edict to stay in its lane. The majority and I 

differ, as I’ll soon address, on whether the Executive Branch 

exceeded its authority in issuing the loan cancellation plan.

But assuming the Executive Branch did so, that does not 

license this Court to exceed its own role. Courts must still 

“function as courts,” this one no less than others. Ibid. And 

in our system, that means refusing to decide cases that are

not really cases because the plaintiffs have not suffered concrete injuries. The Court ignores that principle in allowing 

Missouri to piggy-back on the “legal rights and interests” of 

an independent entity. Warth, 422 U. S., at 499. If 

MOHELA wanted to, it could have brought this suit. It declined to do so. Under the non-manipulable, serious version

of standing law, that would have been the end of the matter—regardless how much Missouri, or this Court, objects 

to the Secretary’s plan. 

II 

The majority finds no firmer ground when it reaches the 

merits. The statute Congress enacted gives the Secretary

broad authority to respond to national emergencies. That 

authority kicks in only under exceptional conditions. But 

when it kicks in, the Secretary can take exceptional 

measures. He can “waive or modify any statutory or regulatory provision” applying to the student-loan program. 

§1098bb(a)(1). And as part of that power, he can “appl[y]” 

new “terms and conditions” “in lieu of ” the former ones. 

§1098bb(b)(2). That means when an emergency strikes, the 

Secretary can alter, so as to cover more people, pre-existing

provisions enabling loan discharges. Which is exactly what 

the Secretary did in establishing his loan forgiveness plan.

The majority’s contrary conclusion rests first on stilted textual analysis. The majority picks the statute apart piece by 
 

14 BIDEN v. NEBRASKA 

KAGAN, J., dissenting 

piece in an attempt to escape the meaning of the whole. But 

the whole—the expansive delegation—is so apparent that

the majority has no choice but to justify its holding on extrastatutory grounds. So the majority resorts, as is becoming 

the norm, to its so-called major-questions doctrine. And the 

majority again reveals that doctrine for what it is—a way

for this Court to negate broad delegations Congress has approved, because they will have significant regulatory impacts. Thus the Court once again substitutes itself for Congress and the Executive Branch—and the hundreds of 

millions of people they represent—in making this Nation’s 

most important, as well as most contested, policy decisions. 

A 

A bit of background first, to give a sense of where the

HEROES Act came from. In 1991 and again in 2002, Congress authorized the Secretary to grant student-loan relief

to borrowers affected by a specified war or emergency. The 

first statute came out of the Persian Gulf Conflict. It gave

the Secretary power to “waive or modify any statutory or

regulatory provision” relating to student-loan programs in

order to assist “the men and women serving on active duty

in connection with Operation Desert Storm.” §§372(a)(1), 

(b), 105 Stat. 93. The next iteration responded to the impacts of the September 11 terrorist attacks. It too gave the 

Secretary power to “waive or modify” any student-loan provision, but this time to help borrowers affected by the “national emergency” created by September 11. §2(a)(1), 115 

Stat. 2386. 

With those one-off statutes in its short-term memory,

Congress decided there was a need for a broader and more 

durable emergency authorization. So in 2003, it passed the

HEROES Act. Instead of specifying a particular crisis, that

statute enables the Secretary to act “as [he] deems necessary” in connection with any military operation or “national 
Cite as: 600 U. S. ____ (2023) 15 

KAGAN, J., dissenting 

emergency.” §1098bb(a)(1). But the statute’s greater coverage came with no sacrifice of potency. When the law’s 

emergency conditions are satisfied, the Secretary again has

the power to “waive or modify any statutory or regulatory 

provision” relating to federal student-loan programs. Ibid. 

Before turning to the scope of that power, note the stringency of the triggering conditions. Putting aside military

applications, the Secretary can act only when the President

has declared a national emergency. See §1098ee(4). Further, the Secretary may provide benefits only to “affected 

individuals”—defined as anyone who “resides or is employed in an area that is declared a disaster area . . . in connection with a national emergency” or who has “suffered direct economic hardship as a direct result of a . . . national 

emergency.” §§1098ee(2)(C)–(D). And the Secretary can do

only what he determines to be “necessary” to ensure that

those individuals “are not placed in a worse position financially in relation to” their loans “because of ” the emergency. 

§1098bb(a)(2). That last condition, said more simply, requires the Secretary to show that the relief he awards does

not go beyond alleviating the economic effects of an emergency on affected borrowers’ ability to repay their loans.

But if those conditions are met, the Secretary’s delegated

authority is capacious. As in the prior statutes, the Secretary has the linked power to “waive or modify any statutory 

or regulatory provision” applying to the student-loan programs. §1098bb(a)(1). To start with the phrase after the

verbs, “the word ‘any’ has an expansive meaning.” United 

States v. Gonzales, 520 U. S. 1, 5 (1997). “Any” of the referenced provisions means, well, any of those provisions. And 

those provisions include several relating to student-loan 

cancellation—more precisely, specifying conditions in 

which the Secretary can discharge loan principal. See 

§§1087, 1087dd(g); 34 CFR §§682.402, 685.212 (2022). Now 

go back to the twin verbs: “waive or modify.” To “waive” 

means to “abandon, renounce, or surrender”—so here, to 
 

16 BIDEN v. NEBRASKA 

KAGAN, J., dissenting 

eliminate a regulatory requirement or condition. Black’s 

Law Dictionary 1894 (11th ed. 2019). To “modify” means 

“[t]o make somewhat different” or “to reduce in degree or 

extent”—so here, to lessen rather than eliminate such a requirement. Id., at 1203. Then put the words together, as

they appear in the statute: To “waive or modify” a requirement means to lessen its effect, from the slightest adjustment up to eliminating it altogether. Of course, making 

such changes may leave gaps to fill. So the statute says

what is anyway obvious: that the Secretary’s waiver/modification power includes the ability to specify “the terms and

conditions to be applied in lieu of such [modified or waived] 

statutory and regulatory provisions.” §1098bb(b)(2). Finally, attach the “waive or modify” power to all the provisions relating to loan cancellation: The Secretary may

amend, all the way up to discarding, those provisions and 

fill the holes that action creates with new terms designed to 

counteract an emergency’s effects on borrowers. 

Before reviewing how that statutory scheme operated

here, consider how it might work for a hypothetical emergency that the enacting Congress had in the front of its 

mind. As noted above, a precursor to the HEROES Act was

a statute authorizing the Secretary to assist student-loan

borrowers affected by September 11. See supra, at 14. The 

HEROES Act, as Congress designed it, would give him the

identical power to address similar terrorist attacks in the 

future. So imagine the horrific. A terrorist organization 

sets off a dirty bomb in Chicago. Beyond causing deaths,

the incident leads millions of residents (including many 

with student loans) to flee the city to escape the radiation. 

They must find new housing, probably new jobs. And still 

their student-loan bills are coming due every month. To 

prevent widespread loan delinquencies and defaults, the 

Secretary wants to discharge $10,000 for the class of affected borrowers. Is that legal? Of course it is; it is exactly 

what Congress provided for. The statutory preconditions 
 

 

Cite as: 600 U. S. ____ (2023) 17 

KAGAN, J., dissenting 

are met: The President has declared a national emergency;

the Secretary’s proposed relief extends only to “affected individuals”; and the Secretary has deemed the action “necessary to ensure” that the attack does not place those borrowers “in a worse position” to repay their loans. 

§1098bb(a). And the statutory powers of waiver and modification give the Secretary the means to offer the needed 

assistance. He can, for purposes of this special loan forgiveness program, scratch the pre-existing conditions for 

discharge and specify different conditions met by the affected borrowers. That is what the congressionally delegated powers are for. If the Secretary did not use them,

Congress would be appalled.

The HEROES Act applies to the COVID loan forgiveness

program in just the same way. Of course, Congress did not

know COVID was coming; and maybe it wasn’t even thinking about pandemics generally. But that is immaterial, because Congress delegated broadly, for all national emergencies. It is true, too, that the Secretary’s use of the HEROES

Act delegation has proved politically controversial, in a way 

that assistance to terrorism victims presumably would not.

But again, that fact is irrelevant to the lawfulness of the 

program. If the hypothetical plan just discussed is legal, so

too is this real one. Once more, the statutory preconditions 

have been met. The President declared the COVID pandemic a “national emergency.” §1098ee(4); see 87 Fed. Reg. 

10289 (2022). The eligible borrowers all fall within the

law’s definition of “affected individual[s].” §1098ee(2); see 

supra, at 15. And the Secretary “deem[ed]” relief “necessary to ensure” that the pandemic did not put low- and

middle-income borrowers “in a worse position” to repay

their loans. §§1098bb(a)(1)–(2).2 With those boxes checked, 

—————— 2More specifically, the Secretary determined that without a loan discharge, borrowers making less than $125,000 are likely to experience

higher delinquency and default rates because of the pandemic’s economic 

effects. See App. 234–242, 257–259. In a puzzling footnote, the majority 
 

 

18 BIDEN v. NEBRASKA 

KAGAN, J., dissenting 

the Secretary’s waiver/modification powers kick in. And 

the Secretary used them just as described in the hypothetical above. For purposes of the COVID program, he 

scratched the conditions for loan discharge contained in 

several provisions. See App. 261–262 (citing §§1087, 

1087dd(g); 34 CFR §§682.402, 685.212). He then altered 

those provisions by specifying different conditions, which 

opened up loan forgiveness to more borrowers. So he 

“waive[d]” and “modif[ied]” pre-existing law and, in so doing, applied new “terms and conditions” “in lieu of ” the old.

§§1098bb(a)(1), (b)(2); see 87 Fed. Reg. 61514. As in the 

prior hypothetical, then, he used his statutory emergency 

powers in the manner Congress designed. 

How does the majority avoid this conclusion? By picking 

the statute apart, and addressing each segment of Congress’s authorization as if it had nothing to do with the others. For the first several pages—really, the heart—of its

analysis, the majority proceeds as though the statute contains only the word “modify.” See ante, at 13–15. It eventually gets around to the word “waive,” but similarly spends 

most of its time treating that word alone. See ante, at 15– 

16. Only when that discussion is over does the majority in-

—————— 

expresses doubt about that finding, though says that its skepticism plays

no role in its decision. See ante, at 18–19, n. 6. Far better if the majority 

had ruled on that alternative ground. Then, the Court’s invalidation of 

the Secretary’s plan would not have neutered the statute for all future 

uses. But in any event, the skepticism is unwarranted. All the majority 

says to support it is that the current “paus[e]” on “interest accrual and 

loan repayments” could achieve the same end. Ibid. But the majority

gives no reason for concluding that the pause would work just as well to 

ensure that borrowers are not “placed in a worse position financially in 

relation to” their loans because of the COVID emergency.

§1098bb(a)(2)(A). How could it possibly know? And in any event, the 

majority’s view of the statute would also make the pause unlawful, as 

later discussed. See infra, at 21. So the availability of the pause can

hardly provide a basis for the majority’s questioning of the Secretary’s 

finding that cancellation is necessary. 
 

Cite as: 600 U. S. ____ (2023) 19 

KAGAN, J., dissenting 

form the reader that the statute also contemplates the Secretary’s addition of new terms and conditions. See ante, at 

17–18. But once again the majority treats that authority in

isolation, and thus as insignificant. Each aspect of the Secretary’s authority—waiver, modification, replacement—is

kept sealed in a vacuum-packed container. The way they 

connect and reinforce each other is generally ignored. “Divide to conquer” is the watchword. So there cannot possibly

emerge “a fair construction of the whole instrument.” 

McCulloch v. Maryland, 4 Wheat. 316, 406 (1819). The majority fails to read the statutory authorization right because 

it fails to read it whole. See A. Scalia & B. Garner, Reading 

Law: The Interpretation of Legal Texts 167–169 (2012) (discussing the importance of the whole-text—here, really, the

whole-sentence—canon).

The majority’s cardinal error is reading “modify” as if it

were the only word in the statutory delegation. Taken 

alone, this Court once stated, the word connotes “increment” and means “to change moderately or in minor fashion.” MCI Telecommunications Corp. v. American Telephone & Telegraph Co., 512 U. S. 218, 225 (1994). But no 

sooner did the Court say that much than it noted the importance of “contextual indications.” Id., at 226; see Scalia 

& Garner 167 (“Context is a primary determinant of meaning”). And in the HEROES Act, the dominant piece of context is that “modify” does not stand alone. It is one part of 

a couplet: “waive or modify.” The first verb, as discussed 

above, means eliminate—usually the most substantial kind 

of change. See supra, at 15; accord, ante, at 16. So the 

question becomes: Would Congress have given the Secretary power to wholly eliminate a requirement, as well as to

relax it just a little bit, but nothing in between? The majority says yes. But the answer is no, because Congress would 

not have written so insane a law. The phrase “waive or

modify” instead says to the Secretary: “Feel free to get rid 

of a requirement or, short of that, to alter it to the extent 
 

20 BIDEN v. NEBRASKA 

KAGAN, J., dissenting 

you think appropriate.” Otherwise said, the phrase extends

from minor changes all the way up to major ones.

The majority fares no better in claiming that the phrase

“waive or modify” somehow limits the Secretary’s ability “to 

add to existing law.” Ante, at 18 (emphasis in original). The 

majority’s explanation of that idea oscillates a fair bit. At 

times the majority tries to convey that “additions” as a class

are somehow suspect. See ante, at 17–18 (looking askance

at “add[ing] new terms,” “adding back in,” “filling the empty 

space,” “augment[ing],” and “draft[ing] new” language). 

But that is mistaken. Change often (usually?) involves or 

necessitates replacements. So when the Secretary uses his 

statutory power to remove some conditions on loan cancellation, he can under that same power replace them with

others. The majority itself must ultimately concede that 

point. See ante, at 13, 17–18. So it falls back on arguing 

that the “additions” allowed cannot be “substantial[]” because the statute uses the word “modify.” Ante, at 16; see 

ante, at 17–18. But that just doubles down on the majority’s 

most basic error: extracting “modify” from the “waive or

modify” phrase in order to confine the Secretary to making

minor changes. As just shown, the phrase as a whole says

the opposite—tells the Secretary that he can make changes 

along a spectrum, from modest to substantial. See supra, 

at 19. And so he can make additions along that spectrum

as well. In particular, if he entirely removes existing conditions on loan discharge, he can substitute new ones; he

does not have to leave gaping holes. 

Indeed, other language in the statute makes that substitution authority perfectly clear. As noted earlier, the statute refers expressly to “the terms and conditions to be applied in lieu of such [modified or waived] statutory and 

regulatory provisions.” §1098bb(b)(2); see supra, at 16. In 

other words, the statute expects the Secretary’s waivers

and modifications to involve replacing the usual provisions

with different ones. The majority rejoins that the “in lieu 
 

Cite as: 600 U. S. ____ (2023) 21 

KAGAN, J., dissenting 

of ” language is a “wafer-thin reed” for the Secretary to rely 

on because it appears in a “humdrum reporting requirement.” Ante, at 17. But the adjectives are by far the best

part of that response. It is perfectly true that the language 

instructs the Secretary to “include” his new “terms and conditions” when he provides notice of his “waivers or modifications.” §1098bb(b)(2). But that is because the statute 

contemplates that there will be new terms and conditions 

to report. In other words, the statute proceeds on the premise that the usual waiver or modification will, contra the 

majority, involve adding “new substantive” provisions. 

Ante, at 17. The humdrum reporting requirement thus confirms the expansive extent of the Secretary’s waiver/modification authority.

The majority’s opposing construction makes the Act inconsequential. The Secretary emerges with no ability to respond to large-scale emergencies in commensurate ways. 

The creation of any “novel and fundamentally different loan

forgiveness program” is off the table. Ante, at 14. So, for 

example, the Secretary could not cancel student loans held

by victims of the hypothetical terrorist attack described 

above. See supra, at 16–17. That too would involve “the 

introduction of a whole new regime” by way of “draft[ing]

new substantive” conditions for discharging loans. Ante, at 

17–18. And under the majority’s analysis, new loan forbearance policies are similarly out of bounds. When COVID 

struck, Secretary DeVos immediately suspended loan repayments and interest accrual for all federally held student

loans. See ante, at 5. The majority claims it is not deciding

whether that action was lawful. Ante, at 18, n. 5. Which is 

all well and good, except that under the majority’s reasoning, how could it not be? The suspension too offered a significant new benefit, and to an even greater number of borrowers. (Indeed, for many borrowers, it was worth much

more than the current plan’s $10,000 discharge.) So the 
 

 

22 BIDEN v. NEBRASKA 

KAGAN, J., dissenting 

suspension could no more meet the majority’s pivotal definition of “modify”—as make a “minor change[]”—than 

could the forgiveness plan. Ante, at 13. On the majority’s

telling, Congress thought that in the event of a national

emergency financially harming borrowers—under a statute 

gearing potential relief to the measure of that harm, so that 

affected borrowers end up no less able to repay their loans—

the Secretary can do no more than fiddle. He can, the majority says, “reduc[e] the number of tax forms borrowers are

required to file.” Ibid. Or he can “waive[] the requirement

that a student provide a written request for a leave of absence.” Ante, at 15. But he can do nothing that would ameliorate an emergency’s economic impact on student-loan 

borrowers. 

That is not the statute Congress wrote. The HEROES 

Act was designed to deal with national emergencies—typically major in scope, often unpredictable in nature. It gave

the Secretary discretionary authority to relieve borrowers

of the adverse impacts of many possible crises—as “necessary” to ensure that those individuals are not “in a worse 

position financially” to make repayment. §1098bb(a)(2). If 

all the Act’s triggers are met, the Secretary can waive or 

modify the usual provisions relating to student loans, and 

substitute new terms and conditions. That power extends

to the varied provisions governing loan repayment and discharge. Those provisions are, indeed, the most obvious candidates for alteration under a statute drafted to leave borrowers no worse off, in relation to their loans, than before 

an emergency struck. But the majority will not accept the 

statute’s meaning. At every pass, it “impos[es] limits on an 

agency’s discretion that are not supported by the text.” Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, 591 U. S. ___, ___ (2020) (slip op., at 16). It refuses 

to apply the Act in accordance with its terms. Explains the

majority: “However broad the meaning of ‘waive or modify’”—meaning however much power Congress gave the 
 

Cite as: 600 U. S. ____ (2023) 23 

KAGAN, J., dissenting 

Secretary—this program is just too large. Ante, at 18. 

B 

The tell comes in the last part of the majority’s opinion.

When a court is confident in its interpretation of a statute’s 

text, it spells out its reading and hits the send button. Not 

this Court, not today. This Court needs a whole other chapter to explain why it is striking down the Secretary’s plan. 

And that chapter is not about the statute Congress passed 

and the President signed, in their representation of many

millions of citizens. It instead expresses the Court’s own

“concerns over the exercise of administrative power.” Ante, 

at 19. Congress may have wanted the Secretary to have

wide discretion during emergencies to offer relief to student-loan borrowers. Congress in fact drafted a statute saying as much. And the Secretary acted under that statute in

a way that subjects the President he serves to political accountability—the judgment of voters. But none of that is 

enough. This Court objects to Congress’s permitting the

Secretary (and other agency officials) to answer so-called

major questions. Or at least it objects when the answers

given are not to the Court’s satisfaction. So the Court puts

its own heavyweight thumb on the scales. It insists that 

“[h]owever broad” Congress’s delegation to the Secretary, it

(the Court) will not allow him to use that general authorization to resolve important issues. The question, the majority helpfully tells us, is “who has the authority” to make

such significant calls. Ibid. The answer, as is now becoming commonplace, is this Court. See, e.g., West Virginia, 

597 U. S. ___; Alabama Assn. of Realtors v. Department of 

Health and Human Servs., 594 U. S. ___ (2021); see also 

Sackett v. EPA, 598 U. S. ___ (2023) (using a similar judicially manufactured tool to negate statutory text enabling 

regulation).

The majority’s stance, as I explained last Term, prevents 

Congress from doing its policy-making job in the way it 
 

24 BIDEN v. NEBRASKA 

KAGAN, J., dissenting 

thinks best. See West Virginia, 597 U. S., at ___–___, ___– 

___ (dissenting opinion) (slip op., at 13–19, 28–33). The new 

major-questions doctrine works not to better understand—

but instead to trump—the scope of a legislative delegation. 

See id., at ___ (slip op., at 32). Here is a fact of the matter: 

Congress delegates to agencies often and broadly. And it 

usually does so for sound reasons. Because agencies have

expertise Congress lacks. Because times and circumstances change, and agencies are better able to keep up and 

respond. Because Congress knows that if it had to do everything, many desirable and even necessary things

wouldn’t get done. In wielding the major-questions sword,

last Term and this one, this Court overrules those legislative judgments. The doctrine forces Congress to delegate in 

highly specific terms—respecting, say, loan forgiveness of 

certain amounts for borrowers of certain incomes during

pandemics of certain magnitudes. Of course Congress

sometimes delegates in that way. But also often not. Because if Congress authorizes loan forgiveness, then what of 

loan forbearance? And what of the other 10 or 20 or 50 

knowable and unknowable things the Secretary could do? 

And should the measure taken—whether forgiveness or forbearance or anything else—always be of the same size? Or 

go to the same classes of people? Doesn’t it depend on the

nature and scope of the pandemic, and on a host of other 

foreseeable and unforeseeable factors? You can see the 

problem. It is hard to identify and enumerate every possible application of a statute to every possible condition years

in the future. So, again, Congress delegates broadly. Except that this Court now won’t let it reap the benefits of that

choice. 

And that is a major problem not just for governance, but 

for democracy too. Congress is of course a democratic institution; it responds, even if imperfectly, to the preferences of 

American voters. And agency officials, though not them-
Cite as: 600 U. S. ____ (2023) 25 

KAGAN, J., dissenting 

selves elected, serve a President with the broadest of all political constituencies. But this Court? It is, by design, as

detached as possible from the body politic. That is why the

Court is supposed to stick to its business—to decide only 

cases and controversies (but see supra, at 3–13), and to stay

away from making this Nation’s policy about subjects like

student-loan relief. The policy judgments, under our separation of powers, are supposed to come from Congress and 

the President. But they don’t when the Court refuses to 

respect the full scope of the delegations that Congress

makes to the Executive Branch. When that happens, the

Court becomes the arbiter—indeed, the maker—of national 

policy. See West Virginia, 597 U. S., at ___ (KAGAN, J., dissenting) (slip op., at 32) (“The Court, rather than Congress,

will decide how much regulation is too much”). That is no 

proper role for a court. And it is a danger to a democratic 

order. 

The HEROES Act is a delegation both purposive and

clear. Recall that Congress enacted the statute after passing two similar laws responding to specific crises. See supra, at 14. Congress knew that national emergencies would 

continue to arise. And Congress decided that when they

did, the Secretary should have the power to offer relief without waiting for another, incident-specific round of legislation. Emergencies, after all, are emergencies, where speed

is of the essence. For similar reasons, Congress replicated 

its prior (two-time) choice to leave the scope and nature of 

the loan relief to the Secretary, so that he could respond to 

varied conditions. As the House Report noted, Congress

provided “the authority to implement waivers” that were 

“not yet contemplated” but might become necessary to deal 

with “any unforeseen issues that may arise.” H. R. Rep. 

No. 108–122, pp. 8–9 (2003). That delegation is at the statute’s very center, in its “waive or modify” language. And 

the authority it grants goes only to the Secretary—the offi-
 

26 BIDEN v. NEBRASKA 

KAGAN, J., dissenting 

cial Congress knew to hold the responsibility for administering the Government’s student-loan portfolio and programs. See §1082. Student loans are in the Secretary’s 

wheelhouse. And so too, Congress decided, relief from those

loan obligations in case of emergency. That delegation was 

the entire point of the HEROES Act. Indeed, the statute 

accomplishes nothing else.

The majority is therefore wrong to say that the “indicators from our previous major questions cases are present 

here.” Ante, at 23 (internal quotation marks omitted). 

Compare the HEROES Act to other statutes containing

broad delegations that the same majority has found to raise

major-questions problems. Last Term, for example, the majority thought the trouble with the Clean Power Plan lay in 

the EPA’s use of a “long-extant” and “ancillary” provision 

addressed to other matters. West Virginia, 597 U. S., at ___ 

(slip op., at 20). Before that, the majority invalidated the

CDC’s eviction moratorium because the agency had asserted authority far outside its “particular domain.” Alabama Assn. of Realtors, 594 U. S., at ___ (slip op., at 6). I 

thought both those decisions wrong. But assume the opposite; there is, even on that view, nothing like those circumstances here. (Or, to quote the majority quoting me, those 

“case[s are] distinguishable from this one.” Ante, at 23.) In 

this case, the Secretary responsible for carrying out the 

student-loan programs forgave student loans in a national 

emergency under the core provision of a recently enacted 

statute empowering him to provide student-loan relief in 

national emergencies.3 Today’s decision thus moves the 

—————— 3The nature of the delegation here poses a particular challenge for 

JUSTICE BARRETT, given her distinctive understanding of the majorquestions doctrine. In her thoughtful concurrence, she notes the “importance of context when a court interprets a delegation to an administrative agency.” Ante, at 2 (emphasis in original). I agree, and have said 

so; there are, indeed, some significant overlaps between my and JUSTICE 
 

 

Cite as: 600 U. S. ____ (2023) 27 

KAGAN, J., dissenting 

goalposts for triggering the major-questions doctrine. Who 

knows—by next year, the Secretary of Health and Human

Services may be found unable to implement the Medicare

program under a broad delegation because of his actions’ 

(enormous) “economic impact.” Ante, at 21.

 To justify this use of its heightened-specificity requirement, the majority relies largely on history: “[P]ast waivers

and modifications,” the majority argues, “have been extremely modest.” Ante, at 20. But first, it depends what 

you think is “past.” One prior action, nowhere counted by

the majority, is the suspension of loan payments and interest accrual begun in COVID’s first days. That action cost 

the Federal Government over $100 billion, and benefited 

many more borrowers than the forgiveness plan at issue.

See supra, at 21. And second, it’s all relative. Past actions 

were more modest because the precipitating emergencies

were more modest. (The COVID emergency generated, all 

told, over $5 trillion in Government relief spending.) In 

providing more significant relief for a more significant 

emergency—or call it unprecedented relief for an unprecedented emergency—the Secretary did what the HEROES 

Act contemplates. Imagine asking the enacting Congress:

Can the Secretary use his powers to give borrowers more 

—————— 

BARRETT’s views on properly contextual interpretation of delegation provisions. See West Virginia, 597 U. S., at ___–___ (dissenting opinion) 

(slip op., at 14–19). But then consider two of the contextual factors 

JUSTICE BARRETT views as “telltale sign[s]” of whether an agency has exceeded the scope of a delegation. Ante, at 12. First, she asks, is there a 

“mismatch[]” between a “backwater provision” or “subtle device” and an 

agency’s exercise of power? Ibid. And second, is the agency official operating within or “outside [his] wheelhouse”? Ante, at 12–13. Here, for 

the reasons stated above, there is no mismatch: The broadly worded

“waive or modify” delegation IS the HEROES Act, not some tucked away 

ancillary provision. And as JUSTICE BARRETT agrees, “this is not a case

where the agency is operating entirely outside its usual domain.” Ante, 

at 15. So I could practically rest my case on JUSTICE BARRETT’s reasoning. 
 

28

I 

 BIDEN v. NEBRASKA 

KAGAN, J., dissenting 

relief when an emergency has inflicted greater harm? 

can’t believe the majority really thinks Congress would 

have answered “no.” In any event, the statute Congress 

passed does not say “no.” Delegations like the HEROES Act 

are designed to enable agencies to “adapt their rules and 

policies to the demands of changing circumstances.” FDA 

v. Brown & Williamson Tobacco Corp., 529 U. S. 120, 157 

(2000). Congress allows, and indeed expects, agencies to 

take more serious measures in response to more serious

problems.

Similarly unavailing is the majority’s reliance on the controversy surrounding the program. Student-loan cancellation, the majority says, “raises questions that are personal 

and emotionally charged,” precipitating “profound debate

across the country.” Ante, at 22. I have no quarrel with

that description. Student-loan forgiveness, and responses 

to COVID generally, have joined the list of issues on which 

this Nation is divided. But that provides yet more reason 

for the Court to adhere to its properly limited role. There 

are two paths here. One is to respect the political branches’ 

judgments. On that path, the Court recognizes the breadth 

of Congress’s delegation to the Secretary, and declines to 

interfere with his use of that granted authority. Maybe 

Congress was wrong to give the Secretary so much discretion; or maybe he, and the President he serves, did not

make good use of it. But if so, there are political remedies—

accountability for all the actors, up to the President, who

the public thinks have made mistakes. So a political controversy is resolved by political means, as our Constitution 

requires. That is one path. Now here is the other, the one 

the Court takes. Wielding its judicially manufactured 

heightened-specificity requirement, the Court refuses to

acknowledge the plain words of the HEROES Act. It declines to respect Congress’s decision to give broad emergency powers to the Secretary. It strikes down his lawful 

use of that authority to provide student-loan assistance. It 
Cite as: 600 U. S. ____ (2023) 29 

KAGAN, J., dissenting 

does not let the political system, with its mechanisms of accountability, operate as normal. It makes itself the decisionmaker on, of all things, federal student-loan policy. 

And then, perchance, it wonders why it has only compounded the “sharp debates” in the country? Ibid. 

III 

From the first page to the last, today’s opinion departs

from the demands of judicial restraint. At the behest of a 

party that has suffered no injury, the majority decides a 

contested public policy issue properly belonging to the politically accountable branches and the people they represent. In saying so, and saying so strongly, I do not at all 

“disparage[]” those who disagree. Ante, at 26. The majority

is right to make that point, as well as to say that “[r]easonable minds” are found on both sides of this case. Ante, at 

25. And there is surely nothing personal in the dispute 

here. But Justices throughout history have raised the 

alarm when the Court has overreached—when it has “exceed[ed] its proper, limited role in our Nation’s governance.” 

Supra, at 1. It would have been “disturbing,” and indeed 

damaging, if they had not. Ante, at 25. The same is true in 

our own day.

The majority’s opinion begins by distorting standing doctrine to create a case fit for judicial resolution. But there is 

no such case here, by any ordinary measure. The Secretary’s plan has not injured the plaintiff-States, however 

much they oppose it. And in that respect, Missouri is no 

different from any of the others. Missouri does not suffer 

any harm from a revenue loss to MOHELA, because the two

entities are legally and financially independent. And 

MOHELA has chosen not to sue—which of course it could 

have. So no proper party is before the Court. A court acting

like a court would have said as much and stopped.

The opinion ends by applying the Court’s made-up major-
 

 

30 BIDEN v. NEBRASKA 

KAGAN, J., dissenting 

questions doctrine to jettison the Secretary’s loan forgiveness plan. Small wonder the majority invokes the doctrine. The majority’s “normal” statutory interpretation cannot sustain its decision. The statute, read as written, gives 

the Secretary broad authority to relieve a national emergency’s effect on borrowers’ ability to repay their student 

loans. The Secretary did no more than use that lawfully 

delegated authority. So the majority applies a rule specially crafted to kill significant regulatory action, by requiring Congress to delegate not just clearly but also microspecifically. The question, the majority maintains, is “who 

has the authority” to decide whether such a significant action should go forward. Ante, at 19; see supra, at 23. The 

right answer is the political branches: Congress in broadly 

authorizing loan relief, the Secretary and the President in

using that authority to implement the forgiveness plan.

The majority instead says that it is theirs to decide.

So in a case not a case, the majority overrides the combined judgment of the Legislative and Executive Branches, 

with the consequence of eliminating loan forgiveness for 43

million Americans. I respectfully dissent from that decision.