Biden v. Nebraska

(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 can-
cel a set amount of loans held by some public servants, see §§1078–10,
1087j, 1087ee. He may also forgive the loans of borrowers who have
died or become “permanently and totally disabled,” §1087(a)(1); bor-
rowers 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 au-
thority 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 mod-
ify any statutory or regulatory provision applicable to the student fi-
nancial assistance programs under title IV of the [Education Act] as
the Secretary deems necessary in connection with a war or other mili-
tary 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 assis-
tance under title IV of the [Education Act affected by a national emer-
gency] 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” reduc-
ing or eliminating the federal student debt of most borrowers. Borrow-
ers 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 spe-
cific 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 statu-
tory 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 pro-
gram. Article III requires a plaintiff to have suffered an injury in
fact—a concrete and imminent harm to a legally protected interest,
like property or money—that is fairly traceable to the challenged con-
duct 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 cor-
poration created by Missouri to participate in the student loan market,
an estimated $44 million a year in fees. MOHELA is, by law and func-
tion, an instrumentality of Missouri: Labeled an “instrumentality” by
the State, it was created by the State, is supervised by the State, and
serves a public function. The harm to MOHELA in the performance of
its public function is necessarily a direct injury to Missouri itself. The
Court reached a similar conclusion 70 years ago in Arkansas v. Texas,
346 U. S. 368.
The Secretary emphasizes that, as a public corporation, MOHELA
has a legal personality separate from the State. But such an instru-
mentality—created and supervised by the State to serve a public func-
tion—remains “(for many purposes at least) part of the Government
itself.” Lebron v. National Railroad Passenger Corporation, 513 U. S.
374, 397. The Secretary also contends that because MOHELA can sue
on its own behalf, it—not Missouri—must be the one to sue. But where
a State has been harmed in carrying out its responsibilities, the fact
that it chose to exercise its authority through a public corporation it
created and controls does not bar the State from suing to remedy that
harm itself. See Arkansas, 346 U. S. 368. With Article III 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” exist-
ing statutory or regulatory provisions applicable to financial assis-
tance programs under the Education Act, but does not allow the Sec-
retary 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
Syllabus
(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 def-
inition is no different.
The authority to “modify” statutes and regulations allows the Secre-
tary to make modest adjustments and additions to existing provisions,
not transform them. Prior to the COVID–19 pandemic, “modifications”
issued under the Act were minor and had limited effect. But the “mod-
ifications” 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 Sec-
retary’s invocation of the waiver power here does not remotely resem-
ble 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 “waiv-
ing” 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, “in-
clud[ing] the terms and conditions to be applied in lieu of such statu-
tory and regulatory provisions” as the Secretary has waived or modi-
fied. §1098bb(b)(2). In the Government’s view, that language
authorizes both “waiving and then putting [the Secretary’s] own re-
quirements in”—a sort of “red penciling” of the existing law. But ra-
ther than implicitly granting the Secretary authority to draft new sub-
stantive 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 is-
sued 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 dramat-
ically. 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 pro-
visions 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 Secre-
tary to respond to unforeseen emergencies.” On this view, the unprec-
edented 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 rais-
ing 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 ap-
proach 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 Sec-
retary’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 involv-
ing 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 consequen-
tial 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 cancella-
tion plan. We agree.
2 BIDEN v. NEBRASKA
Opinion of the Court
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 restruc-
tured 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 lend-
ers. Such benefits include deferment of any repayment un-
til after graduation, loan qualification regardless of credit
history, relatively low fixed interest rates, income-sensitive
repayment plans, and—for undergraduate students with fi-
nancial need—government payment of interest while the
borrower is in school. Dept. of Ed., Federal Student Aid,
Federal Versus Private Loans.
The Education Act specifies in detail the terms and con-
ditions attached to federal loans, including applicable inter-
est rates, loan fees, repayment plans, and consequences of
default. See §§1077, 1080, 1087e, 1087dd. It also author-
izes the Secretary to cancel or reduce loans, but only in cer-
tain limited circumstances and to a particular extent. Spe-
cifically, 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 enforce-
ment and corrections officers, firefighters, nurses, and li-
brarians—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 for-
given. §1087(b). And the Secretary is directed to discharge
loans for borrowers falsely certified by their schools, bor-
rowers 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, Con-
gress became concerned that borrowers affected by the cri-
sis—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 re-
spond to conditions in the national emergency” caused by
the September 11 attacks. 115 Stat. 2386. Rather than al-
low 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 Secre-
tary “may waive or modify any statutory or regulatory pro-
vision applicable to the student financial assistance pro-
grams 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 posi-
tion financially in relation to that financial assistance be-
cause of their status as affected individuals.”
§1098bb(a)(2)(A). An “affected individual” is defined, in rel-
evant 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 na-
tional 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 ad-
dressing a handful of specific issues. 68 Fed. Reg. 69312–
69318. Among other changes, the Secretary waived the re-
quirement that “affected individuals” must “return or repay
an overpayment” of certain grant funds erroneously dis-
bursed by the Government, id., at 69314, and the require-
ment that public service work must be uninterrupted to
qualify an “affected individual” for loan cancellation, id., at
69317. Additional adjustments were made in 2012, with
similar limited effects. 77 Fed. Reg. 59311–59318.
——————
1 Like its 2001 predecessor, the HEROES Act enjoyed virtually unani-
mous bipartisan support at the time of its enactment, passing by a 421-
to-1 vote in the House of Representatives and a unanimous voice vote in
the Senate. See 149 Cong. Rec. 7952–7953 (2003); id., at 20809; 147
Cong. Rec. 20396 (2001); id., at 26292–26293. The single dissenting Rep-
resentative 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
Opinion of the Court
But the Secretary took more significant action in re-
sponse 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 re-
payments 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 ex-
tend the suspensions through the end of September 2020.
134 Stat. 404–405. Before that extension expired, the Pres-
ident directed the Secretary, “[i]n light of the national emer-
gency,” to “effectuate appropriate waivers of and modifica-
tions 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 suspen-
sions, 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 be-
yond keeping the repayment and interest suspensions in
place. But in August 2022, a few weeks before President
Biden stated that “the pandemic is over,” the Department
of Education announced that it was once again issuing
“waivers and modifications” under the Act—this time to re-
duce 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, dis-
charge, 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 ear-
lier 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 effec-
tuate a program of targeted loan cancellation directed at
addressing the financial harms of the COVID–19 pan-
demic.” 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 modifica-
tions” in the Federal Register. 87 Fed. Reg. 61512–61514.
The terms of the debt cancellation plan are straightfor-
ward: For borrowers with an adjusted gross income below
$125,000 in either 2020 or 2021 who have eligible federal
loans, the Department of Education will discharge the bal-
ance of those loans in an amount up to $10,000 per bor-
rower.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 re-
ceived Pell Grants qualify for up to $20,000 in loan cancel-
lation. 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 esti-
mates 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.
——————
2 A 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 stand-
ing 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 injunc-
tion 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 pend-
ing 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 judg-
ment, “to avoid prolonging this uncertainty for the millions
of affected borrowers.” Application 4. We granted the peti-
tion 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 chal-
lenge it. Under Article III of the Constitution, a plaintiff
needs a “personal stake” in the case. TransUnion LLC v.
Ramirez, 594 U. S. ___, ___ (2021) (slip op., at 7). That is,
the plaintiff must have suffered an injury in fact—a con-
crete and imminent harm to a legally protected interest,
like property or money—that is fairly traceable to the chal-
lenged 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 con-
clude 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 bil-
lion in FFELs. MOHELA, FY 2022 Financial Statement 9
(Financial Statement). It also services nearly $150 billion
worth of federal loans, having been hired by the Depart-
ment of Education to collect payments and provide cus-
tomer service to borrowers. Id., at 4, 8. MOHELA receives
an administrative fee for each of the five million federal ac-
counts it services, totaling $88.9 million in revenue last
year alone. Ibid.Under the Secretary’s plan, roughly half of all federal bor-
rowers would have their loans completely discharged. App.
119. MOHELA could no longer service those closed ac-
counts, costing it, by Missouri’s estimate, $44 million a year
in fees that it otherwise would have earned under its con-
tract with the Department of Education. Brief for Respond-
ents 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 Missouri-
ans access student loans needed to pay for college. Ibid.;
see Todd v. Curators of University of Missouri, 347 Mo. 460,
464, 147 S. W. 2d 1063, 1064 (1941) (“Our constitution rec-
ognizes 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 develop-
ment projects at Missouri colleges and universities and al-
most $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 Employ-
ers Mut. Ins. Co., 956 S. W. 2d 249, 254 (Mo. 1997). The
State “set[s] the terms of its existence,” and only the State
“can abolish [MOHELA] and set the terms of its dissolu-
tion.” 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 acknowl-
edged 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 be-
tween the University of Arkansas and a Texas charity. Id.,
at 369. Texas argued that the suit could not proceed be-
cause 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 inter-
ests because the University was “an official state instru-
mentality.” Ibid. The State had labeled the University “an
instrument of the state in the performance of a governmen-
tal 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 Univer-
sity had been “created by the Arkansas legislature,” was
“governed by a Board of Trustees appointed by the Gover-
nor 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 in-
juries should not count as Missouri’s because MOHELA, as
a public corporation, has a legal personality separate from
the State. Every government corporation has such a dis-
tinct personality; it is a corporation, after all, “with the pow-
ers to hold and sell property and to sue and be sued.” First
Nat. City Bank v. Banco Para el Comercio Exterior de Cuba,
462 U. S. 611, 624 (1983). Yet such an instrumentality—
created and operated to fulfill a public function—nonethe-
less remains “(for many purposes at least) part of the Gov-
ernment itself.” Lebron v. National Railroad Passenger
Corporation, 513 U. S. 374, 397 (1995).
In Lebron, Amtrak was sued for refusing to display a po-
litical 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 instru-
mentality of the Federal Government, “created by a special
statute, explicitly for the furtherance of federal governmen-
tal 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 an-
nual 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 gov-
ernmental 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 regula-
tory 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 permit-
ted Arkansas to bring an original suit all the same. Where
a State has been harmed in carrying out its responsibilities,
the fact that it chose to exercise its authority through a pub-
lic corporation it created and controls does not bar the State
from suing to remedy that harm itself.3
The Secretary’s plan harms MOHELA in the perfor-
mance of its public function and so directly harms the State
that created and controls MOHELA. Missouri thus has suf-
fered an injury in fact sufficient to give it standing to chal-
lenge 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 princi-
pal. It does not. We hold today that the Act allows the Sec-
retary to “waive or modify” existing statutory or regulatory
provisions applicable to financial assistance programs un-
der the Education Act, not to rewrite that statute from the
ground up.
——————
3 The dissent, for all its attempts to cabin these precedents, cites no
precedents of its own addressing a State’s standing to sue for a harm to
its instrumentality. The dissent offers only a state court case involving
a different public corporation, in which the Missouri Supreme Court said
that the corporation was separate from the State for the purposes of a
state ban on “the lending of the credit of the state.” Menorah Medical
Center v. Health and Ed. Facilities Auth., 584 S. W. 2d 73, 78 (1979) (plu-
rality opinion). But as the dissent recognizes, a public corporation can
count as part of the State for some but not “other purposes.” Post, at 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 na-
tional 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 re-
strict 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 sweep-
ing”). The authority to “modify” statutes and regulations
allows the Secretary to make modest adjustments and ad-
ditions 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 mi-
nor changes, most of which were procedural. Examples in-
clude reducing the number of tax forms borrowers are re-
quired 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 cir-
cumstances. 20 U. S. C. §§1087, 1087dd(g)(1). Those cir-
cumstances were limited to a borrower’s death, disability,
or bankruptcy; a school’s false 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 pro-
gram. 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 stand-
ing. Instead, every borrower within the specified income
cap automatically qualifies for debt cancellation, no matter
their circumstances. The Department of Education esti-
mates that the program will cover 98.5% of all borrowers.
See Dept. of Ed., White House Fact Sheet: The Biden Ad-
ministration’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 ‘modi-
fied’ the status of the French nobility”—it has abolished
them and supplanted them with a new regime entirely.
MCI, 512 U. S., at 228. Congress opted to make debt for-
giveness available only in a few particular exigent circum-
stances; the power to modify does not permit the Secretary
to “convert that approach into its opposite” by creating a
new program affecting 43 million Americans and $430 bil-
lion in federal debt. Descamps v. United States, 570 U. S.
254, 274 (2013). Labeling the Secretary’s plan a mere “mod-
ification” 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 sub-
tle 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 com-
pliance no longer necessary. For instance, on one occasion
the Secretary waived the requirement that a student pro-
vide a written request for a leave of absence. See 77 Fed.
Reg. 59314. On another, he waived the regulatory provi-
sions 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-
——————
4 While 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 bor-
rowers 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 Secre-
tary to “waive the amounts that students are required to
return” in specified circumstances of overpayment by the
Government). Because the Secretary cannot waive a par-
ticular 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 lim-
itation on his authority. He simply “waiv[es] the elements
of the discharge and cancellation provisions that are inap-
plicable 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 jus-
tify 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 require-
ments. The addition of these new and substantially differ-
ent provisions cannot be said to be a “waiver” of the old in
any meaningful sense. Recognizing this, the Secretary
acknowledges that waiver alone is not enough; after waiv-
ing whatever “inapplicable” law would bar his debt cancel-
lation 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 Secre-
tary’s program cannot be justified by such sleight of hand.
The Secretary has not truly waived or modified the provi-
sions 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 op-
erate 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 regu-
latory provisions” as the Secretary has waived or modified.
20 U. S. C. §1098bb(b)(2) (emphasis added). In the Secre-
tary’s view, that language authorizes “both deleting and
then adding back in, waiving and then putting his own re-
quirements 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 provi-
sion is no more than it appears to be: a humdrum reporting
requirement. Rather than implicitly granting the Secre-
tary authority to draft new substantive statutory provisions
at will, it simply imposes the obligation to report any waiv-
ers 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 author-
izing any degree of change or any new addition, “from mod-
est 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 “mod-
ify” existing law. As with any other modification issued un-
der 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 exist-
ing provisions, but augments and expands them dramati-
cally. 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 ex-
haustive rewriting of the statute that has taken place here.6
——————
5 The dissent asserts that our decision today will control any challenge
to the Secretary’s temporary suspensions of loan repayments and inter-
est accrual. Post, at 21–22. We decide only the case before us. A chal-
lenge to the suspensions may involve different considerations with re-
spect to both standing and the merits.
6 The 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 ap-
peals 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 dis-
cretion to the Secretary to respond to unforeseen emergen-
cies.” Reply Brief 22, n. 3. So the unprecedented nature of
the Secretary’s debt cancellation plan only “reflects the pan-
demic’s unparalleled scope.” Brief for Petitioners 52 (Brief
for United States).
The dissent agrees. “Emergencies, after all, are emergen-
cies,” it reasons, and “more serious measures” must be ex-
pected “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 sub-
stantial 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 deci-
sion in West Virginia v. EPA involved similar concerns over
the exercise of administrative power. 597 U. S. ___ (2022).
That case involved the EPA’s claim that the Clean Air Act
authorized it to impose a nationwide cap on carbon dioxide
——————
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 au-
thority 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 Con-
gress’ 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 mag-
nitude 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 provi-
sions “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 require-
ment 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 ap-
proach the size or scope” of the Secretary’s program. Ala-
bama Assn., 594 U. S., at ___ (slip op., at 7).7
Under the Government’s reading of the HEROES Act, the
——————
7 The Secretary also cites a prior invocation of the HEROES Act waiv-
ing the requirement that borrowers must repay prior overpayments of
certain grant funds. See Brief for United States 41; 68 Fed. Reg. 69314.
But Congress had already limited borrower liability in such cases to ex-
clude overpayments in amounts up to “50 percent of the total grant as-
sistance received by the student” for the period at issue, so the Secre-
tary’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 er-
rors 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 re-
vision of the statute, changing it from [one sort of] scheme
of . . . regulation’ into an entirely different kind,” West Vir-
ginia, 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, pro-
vided he determines that recipients have “suffered direct
economic hardship as a direct result of a . . . national emer-
gency.” 20 U. S. C. §1098ee(2)(D).
The “ ‘economic and political significance’ ” of the Secre-
tary’s action is staggering by any measure. West Virginia,
597 U. S., at ___ (slip op., at 17) (quoting Brown & William-
son, 529 U. S., at 160). Practically every student borrower
benefits, regardless of circumstances. A budget model is-
sued by the Wharton School of the University of Pennsylva-
nia estimates that the program will cost taxpayers “be-
tween $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 discre-
tionary spending. Congressional Budget Office, The Fed-
eral 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.” Util-
ity Air Regulatory Group v. EPA, 573 U. S. 302, 324 (2014)
(quoting Brown & Williamson, 529 U. S., at 159).
The dissent is correct that this is a case about one branch
of government arrogating to itself power belonging to an-
other. But it is the Executive seizing the power of the Leg-
islature. The Secretary’s assertion of administrative au-
thority has “conveniently enabled [him] to enact a program”
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 legis-
lation” were considered by Congress during its 116th ses-
sion 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 extraor-
dinary 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 cancel-
ing 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 magni-
tude and consequence” on a matter of “ ‘earnest and pro-
found debate across the country’ ” must “res[t] with Con-
gress 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
——————
8 Resolutions were also introduced in 2020 and 2021 “[c]alling on the
President . . . to take executive action to broadly cancel Federal student
loan debt.” See S. Res. 711, 116th Cong., 2d Sess. (2020); S. Res. 46,
117th Cong., 1st Sess. (2021). Those resolutions failed to reach a vote.
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 Con-
ference, 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 “indica-
tors 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 wheel-
house.” 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 ex-
plained 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” span-
ning decades. West Virginia, 597 U. S., at ___ (slip op., at
20). At any rate, “the issue now is not whether [West Vir-
ginia] is correct. The question is whether that case is dis-
tinguishable 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 Vir-
ginia is the law. Brief for United States 47–48. But he ob-
jects 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 con-
cerned” in cases involving benefits, which do not impose
“profound burdens” on individual rights or cause “regula-
tory 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 sug-
gests—and for good reason. Among Congress’s most im-
portant 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 admin-
istrative 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 Ser-
vice’s interpretation of a healthcare statute, explaining that
the provision at issue affected “billions of dollars of spend-
ing each year and . . . the price of health insurance for mil-
lions 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 stat-
ute at issue involved government benefits made no differ-
ence in King, and it makes no difference here.
All this leads us to conclude that “[t]he basic and conse-
quential tradeoffs” inherent in a mass debt cancellation
Cite as: 600 U. S. ____ (2023) 25
Opinion of the Court
program “are ones that Congress would likely have in-
tended for itself.” West Virginia, 597 U. S., at ___ (slip op.,
at 26). In such circumstances, we have required the Secre-
tary to “point to ‘clear congressional authorization’ ” to jus-
tify 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 or-
dinary tools of statutory interpretation—let alone “clear
congressional authorization” for such a program.9
* * *
It has become a disturbing feature of some recent opin-
ions 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 Mis-
souri, 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 tradi-
tional tools of judicial decisionmaking in doing so. Reason-
able minds may disagree with our analysis—in fact, at least
three do. See post, p. ___ (KAGAN, J., dissenting). We do
——————
9 The dissent complains that our application of the major questions doc-
trine is a “tell” revealing that “ ‘normal’ statutory interpretation cannot
sustain [our] decision.” Post, at 23, 30. Not so. As we have explained,
the statutory text alone precludes the Secretary’s program. Today’s opin-
ion 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 stat-
ute 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 usu-
ally regarded as a strength, not a weakness.
26 BIDEN v. NEBRASKA
Opinion of the Court
not mistake this plainly heartfelt disagreement for dispar-
agement. It is important that the public not be misled ei-
ther. Any such misperception would be harmful to this in-
stitution and our country.
The judgment of the District Court for the Eastern Dis-
trict of Missouri is reversed, and the case is remanded for
further proceedings consistent with this opinion. The Gov-
ernment’s application to vacate the Eighth Circuit’s injunc-
tion is denied as moot.
It is so ordered.
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 ques-
tions doctrine,” we can uphold the Secretary of Education’s
loan cancellation program only if he points to “ ‘clear con-
gressional 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 con-
clude that the HEROES Act does not authorize the Secre-
tary’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 artic-
ulations of the major questions doctrine on offer—most no-
tably, 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 em-
phasize the importance of context when a court interprets a
delegation to an administrative agency. Seen in this light,
the major questions doctrine is a tool for discerning—not
departing from—the text’s most natural interpretation.
I
A
Substantive canons are rules of construction that ad-
vance 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 strong-
form canon counsels a court to strain statutory text to ad-
vance a particular value. Barrett 168. There are many
such canons on the books, including constitutional avoid-
ance, the clear-statement federalism rules, and the pre-
sumption 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 accom-
plish 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 inter-
pretation 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
——————
1 They 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).
Cite as: 600 U. S. ____ (2023) 3
BARRETT, J., concurring
the better reading leads to a disfavored result (like provok-
ing 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, objec-
tively 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.
——————
2 Whether 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] can-
ons for as long as they have been interpreting statutes,” and that is some
reason to regard the practice as consistent with the original understand-
ing of the “judicial Power.” Barrett 155, 176. Moreover, many strong-
form 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 Con-
gress—and that is in tension with the Constitution’s structure. Id., at
174, 176. Thus, even assuming that the federal courts have not over-
stepped by adopting such canons in the past, I am wary of adopting new
ones—and if the major questions doctrine were a newly minted strong-
form canon, I would not embrace it. In my view, however, the major
questions doctrine is neither new nor a strong-form canon.
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. Hein-
zerling, 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 non-
delegation principle by increasing the cost of delegating au-
thority to agencies—namely, by requiring Congress to
speak unequivocally in order to grant them significant rule-
making power. See Barrett 172–176; see also post, at 27
(KAGAN, J., dissenting) (describing the major questions doc-
trine 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 clear-
statement 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 constitu-
tional avoidance.) In addition or instead, the doctrine
might reflect the judgment that it is so important for Con-
gress to exercise “[a]ll legislative Powers,” Art. I, §1, that it
should be forced to think twice before delegating substan-
tial 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 ra-
tionale justifies it, this “clear statement” version of the ma-
jor 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 in-
terpretation 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. Depart-
ment of Health and Human Servs., 594 U. S. ___, ___ (2021)
(per curiam) (slip op., at 6). But none requires “an ‘unequiv-
ocal 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 Investi-
gativo, 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 re-
flecting “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. Easter-
brook, The Case of the Speluncean Explorers: Revisited,
112 Harv. L. Rev. 1876, 1913 (1999) (“Language takes
meaning from its linguistic context,” as well as “historical
and governmental contexts”). Thus, courts apply a pre-
sumption 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) (inter-
nal 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 case-
books brim with illustrations of why literalism—the antith-
esis 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-
Cite as: 600 U. S. ____ (2023) 7
BARRETT, J., concurring
cause in the context of the criminal code, a reasonable ob-
server would “expect the term ‘drew blood’ to describe a vi-
olent 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 doc-
trine? Because context is also relevant to interpreting the
scope of a delegation. Think about agency law, which is all
about delegations. When an agent acts on behalf of a prin-
cipal, she “has actual authority to take action designated or
implied in the principal’s manifestations to the agent . . . as
the agent reasonably understands [those] manifestations.”
Restatement (Third) of Agency §2.02(1) (2005). Whether an
agent’s understanding is reasonable depends on “[t]he con-
text in which 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 per-
sonal 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 unquali-
fied, 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 conversa-
tionally. 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 con-
sistent with a reasonable understanding of the parent’s in-
struction? Highly doubtful. In the normal course, permis-
sion 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 chil-
dren on such trips before or if the babysitter were a grand-
parent.
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 gen-
eral instruction if she intended to authorize a babysitter-
led 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 circum-
stances, whether contained within the statutory scheme or
external to it, can narrow or broaden the scope of a delega-
tion to an agency.
This expectation of clarity is rooted in the basic premise
that Congress normally “intends to make major policy deci-
sions itself, not leave those decisions to agencies.” United
States Telecom Assn. v. FCC, 855 F. 3d 381, 419 (CADC
2017) (Kavanaugh, J., dissenting from denial of reh’g en
banc). Or, 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 ad-
ministration.” 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 understand-
ing of legislative intent”).
Crucially, treating the Constitution’s structure as part of
the context in which a delegation occurs is not the same as
using a clear-statement rule to overenforce Article I’s non-
delegation principle (which, again, is the rationale behind
the substantive-canon view of the major questions doc-
trine). 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 delegat-
ing away only “the details.” Wayman v. Southard, 10
Wheat. 1, 43 (1825). That is different from a normative rule
that discourages Congress from empowering agencies. To
see what I mean, return to the ambitious babysitter. Our
expectation of clearer authorization for the amusement-
park trip is not about discouraging the parent from giving
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 chil-
dren with the other parent for the weekend, we would view
the same trip differently because the parents share author-
ity over the children. In short, the balance of power be-
tween those in a relationship inevitably frames our under-
standing 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 statu-
tory 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., dissent-
ing). On the contrary, it appears in a line of decisions span-
ning 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; Indus-
trial Union Dept., AFL–CIO v. American Petroleum Insti-
tute, 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. Cincin-
nati, N. O. & T. P. R. Co., 167 U. S. 479, 494–495 (1897) (explaining that
for agency assertions of “vast and comprehensive” power, “no just rule of
construction would tolerate a grant of such power by mere implication”).
Cite as: 600 U. S. ____ (2023) 11
BARRETT, J., concurring
obligation (or even permission) to choose an
inferior-but-tenable alternative that curbs the agency’s au-
thority—and that marks a key difference between my view
and the “clear statement” view of the major questions doc-
trine. 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 deliv-
ery 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 ar-
gument 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 au-
thority 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 disa-
vowal 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 econ-
omy.” Id., at 159–160. In light of those considerations, we
concluded that “Congress could not have intended to dele-
gate a decision of such economic and political 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 nar-
row “statutes that purport to delegate that power.” In re
MCP No. 165, OSHA, Interim Final Rule: Covid–19 Vac-
cination 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 mouse-
holes”). 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 trans-
gressed 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 re-
buffed an interpretive rule from the Attorney General that
restricted the use of controlled substances in physician-as-
sisted 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 avail-
able 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 Real-
tors rested partly on the fact that the CDC’s eviction mora-
torium “intrude[d] into . . . the landlord-tenant relation-
ship”—hardly the day-in, day-out work of a public-health
agency. 594 U. S., at ___ (slip op., at 6). National Federa-
tion of Independent Business v. OSHA is of a piece. 595
U. S. ___ (2022) (per curiam). There, we held that the Oc-
cupational Safety and Health Administration’s (OSHA’s)
authority to ensure “ ‘safe and healthful working condi-
tions’ ” did not encompass the power to mandate the vac-
cination of employees; as we explained, the statute empow-
ered 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 rea-
sonable 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 stat-
ute, but “this Court has long said that courts may consider
the consistency of an agency’s views when we weigh the per-
suasiveness of any interpretation it proffers in court.”
Bittner v. United States, 598 U. S. 85, 97 (2023) (citing Skid-
more 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 representa-
tions 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). In-
stead, we took “off those blinders,” “view[ed] the statute as
a whole,” ibid., and considered context that would be im-
portant to a reasonable observer. With the full picture in
Cite as: 600 U. S. ____ (2023) 15
BARRETT, J., concurring
view, it became evident in each case that the agency’s as-
sertion 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 initi-
ative 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 an-
ything 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. Com-
mon sense tells us that as more indicators from our previ-
ous major questions cases are present, the less likely it is
that Congress would have delegated the power to the
agency without saying so more clearly.
Here, enough of those indicators are present to demon-
strate that the Secretary has gone far “beyond what Con-
gress could reasonably be understood to have granted” in
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, lim-
ited role in our Nation’s governance.
Some 20 years ago, Congress enacted legislation, called
the HEROES Act, authorizing the Secretary of Education
to provide relief to student-loan borrowers when a national
emergency struck. The Secretary’s authority was bounded:
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 Secre-
tary. He could “waive or modify any statutory or regulatory
provision” applying to federal student-loan programs, in-
cluding provisions relating to loan repayment and for-
giveness. And in so doing, he could replace the old provi-
sions 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 coun-
teract the effects of a national emergency on borrowers’ ca-
pacity 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 mid-
dle-income borrowers up to $10,000 in debt relief. Both re-
lied on the HEROES Act language cited above. In estab-
lishing 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]” stat-
utory 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 Sec-
retary 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 al-
low 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 ide-
ological plaintiffs: They think the plan a very bad idea, but
they are no worse off because the Secretary differs. In giv-
ing 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 for-
giveness 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 delega-
tion. But the Court forbids him to proceed. As in other re-
cent cases, the rules of the game change when Congress en-
acts 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 stat-
utes 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 sub-
stitutes 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 Presi-
dent would have been accountable for its success or failure.
But this Court today decides that some 40 million Ameri-
cans 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 constitu-
tional limitation of federal-court jurisdiction to actual cases
or controversies.” Simon v. Eastern Ky. Welfare Rights Or-
ganization, 426 U. S. 26, 37 (1976). In our system,
“[f]ederal courts do not possess a roving commission to pub-
licly 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 legal-
ity of a government action only if the person challenging it
has standing—which requires that the person have suf-
fered 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, Ne-
braska, 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 straightfor-
ward 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 Author-
ity (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 major-
ity, 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 Educa-
tion 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 in-
strumentality” and, as such, “part of Missouri’s govern-
ment.” 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 Govern-
ment readily concedes. See Tr. of Oral Arg. 18. But not
even Missouri, and not even the majority, claims that
MOHELA’s revenue loss gets passed through to the State.
As further discussed below, MOHELA is financially inde-
pendent from Missouri—as corporations typically are, the
better to insulate their creators from financial loss. See in-
fra, 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 docu-
ments 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 voluntar-
ily.
If all that makes you suspect that MOHELA is distinct
from the State, you would be right. And that is so as a mat-
ter 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 le-
gal rights and obligations” from those belonging to its crea-
tor. Agency for Int’l Development v. Alliance for Open Soci-
ety 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” inde-
pendent 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. In-
deed, 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 mat-
ter). But the State Supreme Court, when confronted with
a claim that MOHEFA’s undertakings should be ascribed to
the State, could hardly have been more dismissive. The
court thought it beyond dispute that MOHEFA “is not the
[S]tate,” and that its activities are not state activities. Me-
norah, 584 S. W. 2d, at 78. Citing MOHEFA’s financial and
legal independence, the court explained that “[s]imilar bod-
ies have been adjudged as ‘separate entities’ from” Mis-
souri. 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 ju-
dicial relief on the “legal rights and interests” of third par-
ties. 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] jurid-
ical 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.” Meno-
rah, 584 S. W. 2d, at 78. MOHELA is fully capable of rep-
resenting its own interests, and always has done so before.
The injury to MOHELA thus does not entitle Missouri—un-
der 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 or-
der. The requirement that the proper party—the party ac-
tually 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 judi-
cial power”). Without that requirement, courts become “fo-
rums for the ventilation of public grievances”—for settle-
ment 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 Secre-
tary’s loan cancellation plan makes for terrible, inequitable,
wasteful policy. And so too for Arkansas, Iowa, Kansas, Ne-
braska, and South Carolina. And maybe all of them are
right. But that question is not what this Court sits to de-
cide. 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 guard-
rail 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 rec-
tified (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 col-
lides 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 le-
gal 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 prop-
erty: 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 im-
prove 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 inter-
est of her own and not merely that of her citizens or corpo-
rations.” 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 cor-
poration similar to MOHELA, had to comply with the First
Amendment. The Court held that it did, labeling Amtrak a
state actor for that purpose. On the opposite view, we rea-
soned, a government could “evade the most solemn obliga-
tions imposed in the Constitution by simply resorting to the
corporate form.” Id., at 397; see ibid. (noting that Plessy
could then be “resurrected by the simple device” of creating
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 en-
tity for First Amendment purposes”); id., at 392 (Amtrak is
“a Government entity for purposes of determining the con-
stitutional rights of citizens”); id., at 394 (Amtrak is an “in-
strumentality of the United States for the purpose of indi-
vidual 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 im-
munity. See id., at 392. And most relevant here, we reaf-
firmed that “[t]he State does not, by becoming a corporator,
identify itself with the corporation” for purposes of litiga-
tion. 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 sup-
port (more like the opposite) for the different view that
MOHELA and Missouri are interchangeable parties in liti-
gation.1
——————
1 The same goes for the majority’s other case about Amtrak, which just
“reiterate[s]” Lebron’s reasoning. Ante, at 11; see Department of Trans-
portation v. Association of American Railroads, 575 U. S. 43 (2015).
There too we held that Amtrak was a “governmental entity” for purposes
of the “requirements of the Constitution”—specifically, the nondelega-
tion doctrine. Id., at 54. And there too we kept our holding as limited as
possible, repeatedly stating that we were treating Amtrak as the Gov-
ernment 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 con-
tinue 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 insup-
portable—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 stu-
dents 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 im-
portant—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 abil-
ity to ride on third parties: A State may never sue the Fed-
eral 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, be-
tween MOHELA and Missouri makes MOHELA alone the
proper party.
The author of today’s opinion once wrote that a 1970s-era
standing decision “became emblematic” of “how utterly ma-
nipulable” this Court’s standing law is “if not taken seri-
ously 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 con-
crete 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 de-
clined to do so. Under the non-manipulable, serious version
of standing law, that would have been the end of the mat-
ter—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 regu-
latory 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 tex-
tual 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 extra-
statutory grounds. So the majority resorts, as is becoming
the norm, to its so-called major-questions doctrine. And the
majority again reveals that doctrine for what it is—a way
for this Court to negate broad delegations Congress has ap-
proved, because they will have significant regulatory im-
pacts. Thus the Court once again substitutes itself for Con-
gress and the Executive Branch—and the hundreds of
millions of people they represent—in making this Nation’s
most important, as well as most contested, policy decisions.
A
A bit of background first, to give a sense of where the
HEROES Act came from. In 1991 and again in 2002, Con-
gress 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 im-
pacts of the September 11 terrorist attacks. It too gave the
Secretary power to “waive or modify” any student-loan pro-
vision, but this time to help borrowers affected by the “na-
tional emergency” created by September 11. §2(a)(1), 115
Stat. 2386.
With those one-off statutes in its short-term memory,
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 neces-
sary” 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 cov-
erage 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 strin-
gency of the triggering conditions. Putting aside military
applications, the Secretary can act only when the President
has declared a national emergency. See §1098ee(4). Fur-
ther, the Secretary may provide benefits only to “affected
individuals”—defined as anyone who “resides or is em-
ployed in an area that is declared a disaster area . . . in con-
nection with a national emergency” or who has “suffered di-
rect 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 finan-
cially in relation to” their loans “because of ” the emergency.
§1098bb(a)(2). That last condition, said more simply, re-
quires the Secretary to show that the relief he awards does
not go beyond alleviating the economic effects of an emer-
gency on affected borrowers’ ability to repay their loans.
But if those conditions are met, the Secretary’s delegated
authority is capacious. As in the prior statutes, the Secre-
tary has the linked power to “waive or modify any statutory
or regulatory provision” applying to the student-loan pro-
grams. §1098bb(a)(1). To start with the phrase after the
verbs, “the word ‘any’ has an expansive meaning.” United
States v. Gonzales, 520 U. S. 1, 5 (1997). “Any” of the refer-
enced provisions means, well, any of those provisions. And
those provisions include several relating to student-loan
cancellation—more precisely, specifying conditions in
which the Secretary can discharge loan principal. See
§§1087, 1087dd(g); 34 CFR §§682.402, 685.212 (2022). Now
go back to the twin verbs: “waive or modify.” To “waive”
means to “abandon, renounce, or surrender”—so here, to
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 re-
quirement. Id., at 1203. Then put the words together, as
they appear in the statute: To “waive or modify” a require-
ment means to lessen its effect, from the slightest adjust-
ment 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/modi-
fication 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). Fi-
nally, attach the “waive or modify” power to all the provi-
sions 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 emer-
gency 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 af-
fected 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 in-
dividuals”; and the Secretary has deemed the action “nec-
essary to ensure” that the attack does not place those bor-
rowers “in a worse position” to repay their loans.
§1098bb(a). And the statutory powers of waiver and modi-
fication give the Secretary the means to offer the needed
assistance. He can, for purposes of this special loan for-
giveness program, scratch the pre-existing conditions for
discharge and specify different conditions met by the af-
fected borrowers. That is what the congressionally dele-
gated 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 think-
ing about pandemics generally. But that is immaterial, be-
cause Congress delegated broadly, for all national emergen-
cies. 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 pan-
demic 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 “neces-
sary 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,
——————
2 More specifically, the Secretary determined that without a loan dis-
charge, borrowers making less than $125,000 are likely to experience
higher delinquency and default rates because of the pandemic’s economic
effects. See App. 234–242, 257–259. In a puzzling footnote, the majority
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 hypothet-
ical 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 do-
ing, 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 Con-
gress’s authorization as if it had nothing to do with the oth-
ers. For the first several pages—really, the heart—of its
analysis, the majority proceeds as though the statute con-
tains only the word “modify.” See ante, at 13–15. It even-
tually 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 Sec-
retary’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 Sec-
retary’s authority—waiver, modification, replacement—is
kept sealed in a vacuum-packed container. The way they
connect and reinforce each other is generally ignored. “Di-
vide 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 ma-
jority 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) (dis-
cussing 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 “incre-
ment” and means “to change moderately or in minor fash-
ion.” MCI Telecommunications Corp. v. American Tele-
phone & Telegraph Co., 512 U. S. 218, 225 (1994). But no
sooner did the Court say that much than it noted the im-
portance of “contextual indications.” Id., at 226; see Scalia
& Garner 167 (“Context is a primary determinant of mean-
ing”). And in the HEROES Act, the dominant piece of con-
text 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 Secre-
tary power to wholly eliminate a requirement, as well as to
relax it just a little bit, but nothing in between? The major-
ity 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 cancel-
lation, 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[ ]” be-
cause 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 con-
ditions on loan discharge, he can substitute new ones; he
does not have to leave gaping holes.
Indeed, other language in the statute makes that substi-
tution authority perfectly clear. As noted earlier, the stat-
ute refers expressly to “the terms and conditions to be ap-
plied 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 require-
ment.” 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 con-
ditions” when he provides notice of his “waivers or modifi-
cations.” §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 prem-
ise that the usual waiver or modification will, contra the
majority, involve adding “new substantive” provisions.
Ante, at 17. The humdrum reporting requirement thus con-
firms the expansive extent of the Secretary’s waiver/modi-
fication authority.
The majority’s opposing construction makes the Act in-
consequential. The Secretary emerges with no ability to re-
spond to large-scale emergencies in commensurate ways.
The creation of any “novel and fundamentally different loan
forgiveness program” is off the table. Ante, at 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 for-
bearance policies are similarly out of bounds. When COVID
struck, Secretary DeVos immediately suspended loan re-
payments 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 reason-
ing, how could it not be? The suspension too offered a sig-
nificant new benefit, and to an even greater number of bor-
rowers. (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 defi-
nition 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 ma-
jority 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 ab-
sence.” Ante, at 15. But he can do nothing that would ame-
liorate an emergency’s economic impact on student-loan
borrowers.
That is not the statute Congress wrote. The HEROES
Act was designed to deal with national emergencies—typi-
cally major in scope, often unpredictable in nature. It gave
the Secretary discretionary authority to relieve borrowers
of the adverse impacts of many possible crises—as “neces-
sary” 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 dis-
charge. Those provisions are, indeed, the most obvious can-
didates for alteration under a statute drafted to leave bor-
rowers 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.” Lit-
tle Sisters of the Poor Saints Peter and Paul Home v. Penn-
sylvania, 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 mod-
ify’ ”—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 chap-
ter to explain why it is striking down the Secretary’s plan.
And that chapter is not about the statute Congress passed
and the President signed, in their representation of many
millions of citizens. It instead expresses the Court’s own
“concerns over the exercise of administrative power.” Ante,
at 19. Congress may have wanted the Secretary to have
wide discretion during emergencies to offer relief to stu-
dent-loan borrowers. Congress in fact drafted a statute say-
ing as much. And the Secretary acted under that statute in
a way that subjects the President he serves to political ac-
countability—the judgment of voters. But none of that is
enough. This Court objects to Congress’s permitting the
Secretary (and other agency 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 authori-
zation to resolve important issues. The question, the ma-
jority helpfully tells us, is “who has the authority” to make
such significant calls. Ibid. The answer, as is now becom-
ing 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 judi-
cially 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 circum-
stances change, and agencies are better able to keep up and
respond. Because Congress knows that if it had to do eve-
rything, 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 legisla-
tive 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. Be-
cause if Congress authorizes loan forgiveness, then what of
loan forbearance? And what of the other 10 or 20 or 50
knowable and unknowable things the Secretary could do?
And should the measure taken—whether forgiveness or for-
bearance or anything else—always be of the same size? Or
go to the same classes of people? Doesn’t it depend on the
nature and scope of the pandemic, and on a host of other
foreseeable and unforeseeable factors? You can see the
problem. It is hard to identify and enumerate every possi-
ble application of a statute to every possible condition years
in the future. So, again, Congress delegates broadly. Ex-
cept that this Court now won’t let it reap the benefits of that
choice.
And that is a major problem not just for governance, but
for democracy too. Congress is of course a democratic insti-
tution; it responds, even if imperfectly, to the preferences of
American voters. And agency officials, though not them-
Cite as: 600 U. S. ____ (2023) 25
KAGAN, J., dissenting
selves elected, serve a President with the broadest of all po-
litical constituencies. But this Court? It is, by design, as
detached as possible from the body politic. That is why the
Court is supposed to stick to its business—to decide only
cases and controversies (but see supra, at 3–13), and to stay
away from making this Nation’s policy about subjects like
student-loan relief. The policy judgments, under our sepa-
ration of powers, are supposed to come from Congress and
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., dis-
senting) (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 pass-
ing two similar laws responding to specific crises. See su-
pra, 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 with-
out waiting for another, incident-specific round of legisla-
tion. 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 stat-
ute’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 adminis-
tering the Government’s student-loan portfolio and pro-
grams. 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 “indica-
tors 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 ma-
jority 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 as-
serted authority far outside its “particular domain.” Ala-
bama Assn. of Realtors, 594 U. S., at ___ (slip op., at 6). I
thought both those decisions wrong. But assume the oppo-
site; there is, even on that view, nothing like those circum-
stances 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
——————
3 The nature of the delegation here poses a particular challenge for
JUSTICE BARRETT, given her distinctive understanding of the major-
questions doctrine. In her thoughtful concurrence, she notes the “im-
portance of context when a court interprets a delegation to an adminis-
trative 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 require-
ment, the majority relies largely on history: “[P]ast waivers
and modifications,” the majority argues, “have been ex-
tremely 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 inter-
est 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 unprece-
dented 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 pro-
visions. 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 ex-
ceeded 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 op-
erating 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 reason-
ing.
28 BIDEN v. NEBRASKA
KAGAN, J., dissenting
relief when an emergency has inflicted greater harm? I
can’t believe the majority really thinks Congress would
have answered “no.” In any event, the statute Congress
passed does not say “no.” Delegations like the HEROES Act
are designed to enable agencies to “adapt their rules and
policies to the demands of changing circumstances.” FDA
v. Brown & Williamson Tobacco Corp., 529 U. S. 120, 157
(2000). Congress allows, and indeed expects, agencies to
take more serious measures in response to more serious
problems.
Similarly unavailing is the majority’s reliance on the con-
troversy surrounding the program. Student-loan cancella-
tion, 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 discre-
tion; 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 con-
troversy 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 de-
clines to respect Congress’s decision to give broad emer-
gency 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 ac-
countability, operate as normal. It makes itself the deci-
sionmaker on, of all things, federal student-loan policy.
And then, perchance, it wonders why it has only com-
pounded 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 po-
litically accountable branches and the people they repre-
sent. 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]eason-
able 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 “ex-
ceed[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 doc-
trine to create a case fit for judicial resolution. But there is
no such case here, by any ordinary measure. The Secre-
tary’s plan has not injured the plaintiff-States, however
much they oppose it. And in that respect, Missouri is no
different from any of the others. Missouri does not suffer
any harm from a revenue loss to MOHELA, because the two
entities are legally and 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 for-
giveness plan. Small wonder the majority invokes the doc-
trine. The majority’s “normal” statutory interpretation can-
not sustain its decision. The statute, read as written, gives
the Secretary broad authority to relieve a national emer-
gency’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 spe-
cially crafted to kill significant regulatory action, by requir-
ing Congress to delegate not just clearly but also micro-
specifically. The question, the majority maintains, is “who
has the authority” to decide whether such a significant ac-
tion 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 com-
bined judgment of the Legislative and Executive Branches,
with the consequence of eliminating loan forgiveness for 43
million Americans. I respectfully dissent from that deci-
sion.