Supreme Court hears arguments on Biden's student loan forgiveness plan | full audio

utilities food and many have been unable to pay their debts to head off immediate harm for student loan borrowers to secretaries across two administrations invoked the heroes act to suspend interest and payment obligations for all Americans with federally held loans but if that forbearance ends without further belief it's Undisputed that defaults and delinquencies will surge above pre-pandemic levels so secretary Cardona again invoked the heroes act to provide a measure of loan forgiveness to ensure that this unprecedented pandemic does not leave borrowers worse off in relation to their student loans the states ask this court to deny that vital relief to millions of Americans but they lack standing to seek that result they principally assert harm to a separate legal person mojila that could sue in its own name but is chosen not to do so and the states asserted harms to their tax revenues are self-inflicted and indirect the State's bear disagreement with this policy is not the sort of concrete injury that article 3 demands on the merits the states say the Act doesn't authorize the secretary to ever forgive loan principle but the secretary's interpretation of this text is not just a plausible reading it's the best reading Congress expressly authorized the secretary to waive or modify any title for provision in emergencies to provide Financial relief to Borrowers loan forgiveness is a paradigmatic form of debt relief and the secretary acted within the heartland of his authority and in line with the Central purpose of the heroes act in providing that relief here to apply the major questions Doctrine to override that clear text would deny borrowers critical relief that Congress authorized and the secretary deemed essential I welcome the Court's questions uh General is this a waiver or is it a modification it's both a waiver and a modification Justice Thomas this appears at ja261 that was the decision document that the secretary signed where he said I hereby issue waivers and modifications of multiple Provisions under title IV of the Student Loan program and then that language was repeated in the Federal Register notice that actually implemented that program and constitutes the final agency action that the states are challenging here well could you explain then in in other Provisions uh there is Express language as the cancellation and of course there is it here all right so would you take a minute to explain how a waiver or modification amounts to a waiver to a cancellation of course so the secretary identified various Provisions in title IV that govern the terms and conditions of student loans and also govern discharge and cancellation in other circumstances as your question suggested and I think the straightforward way to think about how the verbs map on to the secretary's action is that he waived elements of those Provisions that contain eligibility requirements for discharge and cancellation that are inapplicable under this program and then modified the provisions to contain the limitations that he had announced as part and parcel of announcing this loan forgiveness now you had suggested that there's no Express statement in the heroes act to discharge loan principle and that's true but the relevant and operative language here is the provision that says the secretary is empowered to waive or modify any title for provision and so the heroes act isn't enumerating any of the various forms of relief that have long been authorized and implemented under this statute I don't think anything can be read into the fact that there's no Express reference to particular forms of relief because Congress was trying to broadly cover the field and ensure that the secretary had the tools to respond to the National Emergency with whatever belief might be necessitated but um in an opinion we had a few years ago by Justice Glee he talked about what what the word modify means and it's he said modified in our view connotes moderate change he said it might be good English to say that the French Revolution modified the status of the French nobility but only because there's a figure of speech called understatement and a literary device known as sarcasm we're talking about half a trillion dollars and 43 million Americans how does that fit under the normal understanding of modifying so of course I recognize that an MCI Justice scalia's opinion adopted a narrower understanding of that term but I don't read that opinion to set forth a universal meaning of modify no matter the statutory context and here of course we have a broader phrase waiver modify it's Undisputed and the states aren't contesting that the ordinary meaning of wave means to eliminate an obligation in its entirety and I think if you look at that phrase in the context of this statute that means the modify has to mean making a change up to the point of wholesale elimination it would be really strange for Congress to say you can eliminate obligations altogether or tweak them just the littlest bit but you can't do anything in between well but it's wave particularly regulatory or statutory Provisions that's right to me suggests a much more focused use of the word well it's waiver modify paired with the authority to do that with respect to any title IV provision so I think that that is the it doesn't say wave modifier wave loan balances that's true but it's very clear that under the title for Provisions that are expressly referenced in the statute things like repayment obligations cancellation discharge or core features of the program and obvious candidates for waiver in a statute the Central purpose of which is to provide debt relief to borrowers you know Congress itself has provided for loan discharge in other circumstances in response to borrower hardship it's included Provisions in The Higher Education Act for bankruptcy for example or for total disability or School closure other kinds of hardships and so it couldn't have surprised Congress one bit that in response to hardship posed by a National Emergency the secretary might consider similarly providing discharge if that's what it takes to make sure borrowers don't default you think because there's a provision to allow waiver when your school closes that because of that Congress shouldn't have been surprised when half a trillion dollars is wiped off the books well I think it demonstrates that in a statute that's centrally focused on providing Financial relief that that terminology should be given its plain meaning and Congress could have anticipated that in a particular situation you might expect that the way that you need to ameliorate the borrower harm is through loan forgiveness and Mr chief justice maybe I can just use an example drawn from the initial context of promulgation of the statutory relief it was initially a bill that was limited just to helping service members who were fighting in wars and think about an example of a service member who goes off to war and you can provide Heroes act relief to ensure that the service member doesn't have to pay down the loan while the term of service but if something were to happen that left that service member worse off because of his service say a disability that doesn't qualify for total discharge it makes perfect sense to think that Congress would have expected that the secretary would have Authority Under this act to make the service member whole and to ensure just as the plain language suggests that that service member isn't going to be left worse off because of the circumstance that prompted his service in the first place and so there's that first order question of whether you can ever do any debt discharge and I think in that context it's perfectly sensible to read this language to authorize that General the amount at issue the chief mentioned the quarter trillion dollars or the half a trillion dollars um how do you deal with that because that seems to favor the argument that this is a major question yes Justice Sotomayor so of course we acknowledge that this is an economically significant action but I think that that can't possibly be the sole measure for triggering application of the major questions Doctrine in Prior cases the court has pointed to economic and political significance but it's also reviewed a Litany of additional factors that have demonstrated that based on common sense understandings of how Congress is likely to legislate the agency is claiming extravagant regulatory Authority that it doesn't actually have and I think if the court were to just look at costs alone it would take the major questions Doctrine outside of that extraordinary case because National policies these days frequently do involve more substantial costs or trigger political controversy here we think that there are any number of additional factors that demonstrate that this does not fit the major questions Paradigm and the first thing I would point to is that this is not an assertion of regulatory Authority at all this is the administration of a benefits program and the court in Prior cases has recognized you using Common Sense interpretations of understanding how Congress would legislate Congress might pause before empowering the executive to engage in extravagant regulation with the corresponding cost to individual liberty interests but in the context of a benefits program there's not that same reason to hesitate about what Congress might have intended because it's perfectly logical for Congress to broadly empower the executive to provide benefits especially in a crisis situation or an emergency like we've seen with covet 19. in general let's say that nobody in Congress was aware that there is such a thing in our case law called the major question Doctrine so put that out of their minds and you simply pulled every member of Congress and asked that person whether in the ordinary sense of the term they would regard what the government had proposes to do with student loans as a major question or something other than a major question well I certainly acknowledge that in a colloquial sense you could characterize this as a major policy we're not disputing that point but again I think that that applies to any number of actions that the government might take and especially in the context of benefits programs where just based on the size of those programs and the number of individuals affected the costs can frequently run into the billions of dollars is there any conceptual reason why the major questions conference should apply to most regulatory matters but not to the not to benefits programs the reason we think apply in the way to benefits programs is because it doesn't involve that corresponding trade-off on individual liberty interests the court in some of the prior cases in this area has expressed concern that if the government is claiming an extraordinary power to regulate that means it can encroach on the lives of individuals the Affairs of businesses and quite directly impose onerous burdens on them it may have an effect on important individual rights but do you think that the doctrine also or perhaps primarily has a separation of powers component yes of course I recognize the court has grounded it in the separation of powers but I think that that cuts in favor of the distinction that we're trying to make because if the court were to apply major questions in this benefits context even in a circumstance where you might think Congress could quite reasonably want to legislate broadly then it would have the effect of potentially overriding congress's intent contrary to the same kind of separation of powers principles the court is focused on in Prior cases I don't understand why it would under undermine congress's intent to a greater extent in that context but uh drawing a distinction between benefits programs and other programs seems to presume that when it comes to the administration of benefits programs trillion dollars here a trillion dollars there doesn't really make that much difference to Congress that doesn't seem very uh sensible of course I acknowledge that there can be substantial costs associated with Benefits programs but I guess the reason I'm pressing on this distinction is because I'm trying to think through you know what is Congress supposed to do when it wants to empower it isn't the question looking at this program and looking at this question is this the sort of thing that Congress is likely to address expressly or through a a contestable interpretation of some statutory language well of course we think Congress did address this expressly here and Congress directed that in the context of a National Emergency that is the the limitation of the heroes act so the secretary can't invoke this whenever he wants there has to be that predicate war or military operation or National Emergency in that context in line with congress's limitations on who can count as an affected individual by that emergency in line with the purposes that relief has to serve Congress said you can waiver modify in any title for provision in order to get relief to borrowers and Justice Alito I would point to the forbearance policy that's been in place for the prior three years put into place right at the beginning of the pandemic by then secretary DeVos that has been an economically significant program it's currently costing the federal government more per year than this loan forgiveness plan would cost the government annually but I would argue that that is right in the heartland of what the heroes act aimed to do it was critical relief that was rushed out at the beginning of this devastating pandemic to ensure that we didn't see spikes in delinquency and default Across the Nation may I ask you a question about standing so it's the case isn't it that if any party in either of these two cases has standing then it would be permissible for us to reach the merits of the issue yes in in the state if you conclude that any party has standing then the court could go on to the merits in the case of the court is going to hear next we think that there are objections to the procedural claim with respect to the borrowers objections there okay then let me ask you a question about Mohela or maybe a question or two if uh Mohela itself had brought this suit would you contest article 3 standing no we would not so we think that if Mohela made allegations that the plan was going to have Financial effects on it it could sue in its own name and we would not contest article three standing all right so then we would consider the article three standing of the state of Missouri right that's right and the the the most the the part of the article 3 test that's most disputed is injury in fact is that correct that's right we're also contesting causation and reducibility here but I think injury and fact is one of the critical points in dispute with respect to Mohela and the state's attempt to assert mojilla's injury okay injury in fact is a factual question uh so I understand a big thrust of your argument to be that Missouri lacks standing because Mohela is is separately Incorporated but why should that formal distinction govern the determination of injury in fact so we think that the injury and fact analysis here has both a factual and a legal component in the first place of course we're making arguments that even if there's a financial injury to mojila the state hasn't carried its its burden to show that that will have Downstream effects on the stage or that those would be cognizable and Mohela hasn't paid money into the relevant State Fund for the past 15 years it said that further payments were not deemed probable even before this plan was announced but even putting the factual discrepancies to the side there's a fundamental problem as a matter of law with the claim of injury and I think it arises directly from two sets of black letter law principles the first is that the whole point of incorporation is that you're creating a separate legal person with its own rights and interests and Missouri has derived substantial benefits from structuring mojilla that way and the second is the basic article 3 principle that a party has to come to court and assert her own rights and interests which can invoke the interest of a third party all of that is certainly you think that our that the LA the fact that mochiola is incorporated is the end of the day that's enough to destroy to defeat standing we think as a matter of first principles yes that this court has several times emphasized that when you have a separately Incorporated instrumentality like that the corporate separateness should be respected and that that's what about Iran and Amtrak so those are doctrines not focused on article three standing of course but instead are testing for other things and LeBron that was a state action case and the Court's reasoning was that you shouldn't be able to parcel out governmental uh functions to an instrumentality in their bio evade the structures of the Constitution have we ever decided a case that presents what you see is the issue here or what the parties see as the issue as one of the issues which is whether for article 3 standing purposes a an entity is part of the state no so the court hasn't addressed this issue in the context of article 3 there aren't cases that are directly on point on either side but I think that we definitely have the better argument of the first principles here based on the propositions I mentioned earlier including those that generally make clear that the court won't count in its third party claims seeking to invoke rights and interests of individuals or entities that aren't before the court and I think it would be particularly anomalous to recognize some kind of exception to those principles here for two no but the question would be whether uh Mohela is part of the state of Missouri for present purposes and where we're considering injury in fact why should the test turn solely or why should the lack of corporate status be a necessary element why shouldn't the test be something more like whether the relationship between this entity and the state of Missouri is such that an injury to mochila will necessarily or presumptively be an injury to the state and if that's the case doesn't that all point to the reasons for setting up mokiula as a very relevant factor and the degree of State control the degree of the governor's control over mochila as a very important factor I don't think that those factors should count as important in the analysis and to the extent the court is inclined to broaden out the analysis beyond the principles I've articulated about corporate separateness I think the most critical fact would be whether there's Financial entanglement and whether Missouri has itself decided to blur those lines for purposes of making it responsible for mohilla's own liabilities and in fact isn't that really as you say the most important thing if economic injury is the point I had understood that the injury that was being asserted here was an economic injury but if we look at Mohela and we see that its Financial interests are totally disentangled from the state it stands alone it's Incorporated separately the state is not liable for anything that happens to Mohela I don't know how that could possibly be a a reason to say that an injury to Mohela should count as an injury to the state yes we agree exactly with that analysis and it's important to think about the benefits that Missouri has obtained from structuring mojilla that way this is not the first lawsuit that mohill has been involved in actually mohill is not involved in this particular suit but in Prior suits when Mohela has been sued the state's been entirely absent because state law makes clear that Missouri cannot be on the hook for mohilla's liabilities it creates a wall of separation financially between the two entities and Missouri gets a lot of benefit from that and so ifilla is being injured as a result of the plan or at least if that's the allegation mahila has the ability to defend itself and its interest correct exactly it's a separate legal person it has the right to sue or be sued in its own name there is nothing that stands in the way of Mohela asserting these interests if it's experiencing Financial harm and there's no principle that would support allowing Missouri now to interfere with the separation it itself is created it's just because it doesn't like the policy would we be breaking new ground then if on this basis we found standing yes I'm not aware of any case that would support standing on this basis so would we be breaking new ground if we found that there was stand since we've never been presented as you admitted earlier with a case that presents precisely the issue that's here it's true that it's a new fact pattern but I think that the court would be breaking new ground with respect to the general principles that it's asserted in third party standing contexts there for example one of the critical facts the court has highlighted is whether there's some impediment that would prevent the party whose rights and interests are implicated from pursuing its own claim there is nothing like that here and the court has never recognized a doctrine of third party standing on facts like these do you have any understanding about why mohilla isn't here no the only evidence in the record about Mohela is that its involvement in this suit has been responding to Sunshine Law requests I think it's possible that loan services requests brought by brought by the state so Missouri served Sunshine Law requests on mohila to get information about it because it was not giving over information voluntarily that's correct I think it just reinforces the sense that there was separation here between the state and this instrumentality if I had to speculate I think that loan servicers during the course of the forbearance policy have seen some of their servicing fees be reduced in light of that policy and it's possible that they are waiting for forbearance to lift so that they can start collecting those fees again and that might be a possible reason why they made the Judgment that they don't want to stand in the way of this forgiveness policy because it's a critical component of allowing payments to resume do you think there might be a dependent relationship between agencies like Mohela and the federal government since we're speculating about why they're not here well certainly they're a contractual relationships yes can I ask you you oh sorry General there was a Missouri case in 1979 Menorah Medical Center um with an agency much like Mohela and there um the Missouri Supreme Court said that that entity was not the state states are free to organize themselves and structure themselves in any way they want correct correct yes and it would be odd for us to have a state say we're creating an a corporation we're not going to be responsible for its stats we're not going to be responsible for any of its contracts we're not going to be responsible for anything it does financially and the state itself says this is not the state it's an independent Corporation and we're going to say instead that it is the state correct yes I think that it would be really anomalous to override the separation that Missouri itself created between it and Mohela in the context of this case the order override its own State Supreme Court's decision that it is not the state yes that's correct General I'm thinking of an Arkansas versus Texas it was significant in that case that Arkansas owned the land of the University so it does seem that Missouri has created the separateness with respect to the liabilities of Mohela what if and I'll access the other side it's not really clear to me what happens to mojila's assets I mean what if mohill itself dissolves there are no shareholders I mean does your answer change if even though Missouri is not responsible for the liabilities it does have an ownership stake in the assets of mohilla I think it's clear under state law Justice Barrett that Missouri doesn't have that kind of ownership interest in the assets of Mohela and I would point in particular to Missouri revised Statute 173.410 this is the provision that make makes clear that Missouri cannot take the assets of Mohela and appropriate them they don't go into the general treasury it makes clear instead that those assets are under mohela's exclusive control so I think as a matter of state law here we don't have anything like the Arkansas case that you just referenced and as well and the flip side of that is the provision of state law that likewise says Missouri is not going to be liable for any agreements or obligations or liability of Mohela so that if Mohela goes out there in the world and harms someone the state's not on the hook for the damage and that's another distinction from the Arkansas case where under state law there it was clear that a suit against the instrumentality was a suit against the state itself would you have the same position with respect to Federal corporations like what about the FDIC or you know organizations like that what if the agency didn't want to sue could the United States Sue to protect the federal government's interests if the corporate identity was separate like here no I think that our principles would apply with respect to our own instrumentalities we could of course Sue to protect interest distinct rights and interests of the United States and so respondents have cited some cases for example where an instrumentality entered into a contract on behalf of the United States in the name of the United States as its agent and we had a contract right that we could enforce in our own name or there was another case that involved a statutory right in the talk tax context to offset and the United States was permitted to sue on that basis because it had its own rights and interests but we've never done what the states are doing here and in the absence of any underlying contract right or statutory right or trust right just asserted this all-purpose ability to blur the distinction between the Sovereign and instrumentalities when they're separately Incorporated in this way thank you thank you thank you General I just have a question on the on the major questions Doctrine and I wanted just a little bit background for why I want to get your views on how it applies your your arguing here that no notice and comment proceeding was required before the action taken on the half trillion dollars of loans uh and that because of your view that the president can act unilaterally that there was no role for Congress to play in this either and at least in this case given your view of standing there's no role for us to play in this in this either now we take very seriously the idea of uh separation of powers and that power should be divided to prevent its uh abuse and there are many procedural niceties uh that have to be followed for the same purpose the case reminds me of the one we had a few years ago under a different Administration where the administration tried acting on its own to cancel the dreamers program and we block that effort and I just wonder given the posture of the case and given our historic concern about the separation of powers you would recognize at least that this is a case that presents extraordinarily serious important issues about the role of Congress and about the role that we should exercise in scrutinizing that significant enough that the major questions Doctrine ought to be considered implicated well Mr chief justice let me try to respond to the concerns about both the role for the Judiciary and the role for congress here saying that there's no role for the Judiciary to play it's that these plaintiffs are not proper plaintiffs in this case of course the court is bound by article 3 and as I acknowledge to Justice Alito we think that loan servicers for example would have standing to challenge this plan but the fact that the the loan servicers haven't yet challenged to date doesn't provide a basis to overlook those fundamental article 3 requirements and distort the meaning of how this court has previously articulated standing principles uh in a circumstance where the states can't otherwise demonstrate their standing to Sue with respect to the role for congress I think what's clear is of course we're recognizing that Congress could take additional action if it disapproves this plan in fact there were bills introduced to alter the text of the heroes act to specifically provide that the secretary can't authorize loan discharge those bills didn't pass but that's one role Congress can play I think though that if the court is focused on trying to ensure that congress's role in this process is respected that just argues in favor of reading this text in line with what the plain language suggests you know these are not words of limitation in the actual assertion of authority here waive or modify any title IV provision the states want this court to say congress really only meant waiver modify some of the provisions not all of them not the central Provisions that govern repayment and cancellation when those would have been obvious candidates for waiver or modification in a loan discharge program and if the court overrides that clear Heroes act language here I think that it could only thwart congress's intent in this particular posture of ensuring that you have the tools the secretary has the tools he needs to take care of Americans in a national emergency situation whether Congress acted or not was a factor that we considered in the major questions Doctrine and the way we considered it is whether or not the issue that was before the court is something that had been seriously considered and debated and was a matter of political controversy before Congress that certainly is the case here right that's right we're not disputing this is a politically significant action but if you're conscious of politically significant action but one that has the attention of Congress the fact that it hasn't acted under the major questions Doctrine but has considered the matter we cited a support for the notion that maybe it should be one for congress if you're talking about this in the abstract I think most casual observers would say if you're going to give up that much amount of money if you're going to affect the obligations of that many Americans on a subject that's of great controversy they would think that's something for Congress to act on and if they haven't acted on it then maybe that's a good lesson to say for the president or or the administrative bureaucracy that maybe that's not just something they should undertake on their own well let me react to that in a couple of different ways Mr chief justice first is to emphasize that the unenacted legislation that the states are pointing to here did not mirror the particulars of this plan so I don't think it would be right to say that Congress has specifically focused on this plan and disapproved it and if the court were to go down that road I'd Point again to the fact that there's there's legislative inaction on the other side of not amending the heroes act but I would think that the court as if you usually does would Place more focus on enacted legislation and here during the pandemic Congress enacted a provision of the American Rescue plan that specifically anticipated and sought to facilitate a program of loan discharge by providing that it wouldn't be subject to Federal taxation from 2021 to 2025. so I think that that congressional action actually carries more weight in the analysis Justice Thomas anything further just uh briefly there's some discussion and the briefs that going past with this provision or that modification or waiver that this is in effect a cancellation of a debt that's really what we're talking about and that as a cancellation of 400 billion dollars in debt and in effect this is a grant of 400 billion dollars and it runs headlong into congress's Appropriations Authority and I'd like to give you some time to respond to that sure and and so first I want to take on the argument that samamiki have made in this case about implicating Appropriations authority of course implementing this program doesn't require that any money be drawn from the treasury and so I don't think that it strictly raises an Appropriations issue which is why I think the states aren't raising that argument here and to the extent that the concern is about the secretary taking action in a way that Congress didn't authorize it seems to me that it just collapses back into the central interpretive question in this case which is does the heroes act authorize the secretary's action or not with respect to the concern you raised that the the effect of loan forgiveness here will result in cancellation of a measure of debt for the effective borrowers of course that's true but I don't think that that is material really different from the kind of effects you can see from other types of authority that's long been exercised under the heroes act you know take the forbearance policy that I've mentioned this has been powerful relief for debtors I'm sorry for student loan borrowers while it's been in place with respect to their debt and it's had you know kind of permanent Financial effects on the government over 150 billion dollars over the course of that forbearance program by the end of it but it's been absolutely critical relief and it's provided that kind of help to the student loan borrowers as well who haven't had to make those interest payments or any payments on their loans while it's been in place and that too can have the kind of consequence of resulting in cancellation of principle During the period of forbearance the the years that borrowers spent in forbearance count towards loan forgiveness programs for example so at the end of the day those borrowers and income driven repayment or Public service loan forgiveness are going to pay less on their loan overall it will be forgiven three years earlier or without those three years of payments that they weren't obligated to make but I don't think that in any sense calls into question the legend intimacy and authorization behind the forbearance policy well I I think that forbearance fits more comfortably in modify waiver modified language it's used simply forbearing on collecting an underlying debt you don't cancel the debt and that's what we're talking about here and certainly there's a cost to that I understand but I I still think that you haven't fully explained why if you looked at this you could not you would not argue that the secretary could actually grant for Bill 400 billion dollars so we agree on that I'm sorry outside the context of the heroes Act yes that's right we of course are premising Appropriations from Congress for that right yes and the argument is that you are in effect doing that without Appropriations from Congress well Justice Thomas I don't see how you can distinguish that from any of the other forms of relief under the heroes act all of those forms of Relief cost the federal government money and often in significant sums you know one of the quintessential forms of relief that the government has offered before in periods of extended deferment for soldiers fighting abroad is to pay the interest on their loans for them and I think you could probably make the same argument of questioning well does that cost the government money is there an Appropriations overlay there does that transform the nature of the program because it takes a loan with interest and makes it an effectively an interest-free loan but that's exactly what Congress intended under this Authority it's to make those changes to the program in direct response to and in direct proportion to the situation the secretary confronts that will otherwise be that borrower worse off Justice Alito Justice Sotomayor returning to the standing question the states basically say we're going to lose money in taxation in one way or another in the Texas case you argued that we should be looking at the cost benefit and some of the Amica here say that there will be a tremendous benefit to the States from this cancellation because that extra money will result in increased consumer spending and decreased housing insecurity less defaults on other loans that those borrowers may have Etc do you agree with those amikai that the economic benefits outweigh any alleged Financial harm in this case as a factual matter we do not disagree as a legal matter we haven't asked the court to rely on that as a basis for standing because we think that the invocation of these harms to tax revenues are so easily answered under this Court's precedent and I would point the court to the Pennsylvania versus New Jersey case it is on all fours with this one precisely identical and so we just think you don't need to go down the road of thinking about some of the broader arguments about tax injury in this case because it's so clear that this court has already rejected the very injury the states are asserting under the Pennsylvania case in Pennsylvania it was a tax credit that was going to be removed so it's almost identical to this exactly Pennsylvania had issued its tax credit before the New Jersey law that they were opposed to and had extended it to Residents when they pay taxes in other states and the New Jersey came along and changed its tax code to impose newly a commuter tax that would ultimately deplete Pennsylvania's tax revenues and the court said that self-inflicted because nothing required Pennsylvania to extend that tax credit nothing prohibits Pennsylvania from withdrawing it now and that analysis applies equally here because of course there is nothing that requires the states to tie their definition of gross income to the federal tax code to the states here Arkansas Missouri don't do that and there's nothing that prevents them from changing that if they don't want to honor the the forgiveness from taxation that the federal government is now under thank you Justice Kagan uh General Peter Luger I want to change the subject a bit um uh the your friends on the state side and also the borrowers in the other case have a number of statutory arguments they framed the mistagatory arguments saying this wasn't necessary under the terms of the statute saying that it leaves borrowers better off not worse off again pointing to statutory language saying that you know it the borrowers of targets aren't worse off because of the pandemic now I'm not sure that I understand um merely those arguments as statutory arguments as much as I understand them as arbitrary and capricious arguments that essentially they are saying that the secretary just did not say the right things did not make the right findings did not properly justify um what he did here that there is no sense in which we read this memorandum and we come away thinking oh yes these harms were caused by the pandemic and um and there's a basis for this action and uh and a sufficient basis for this action so I wanted to give you a chance to talk about that uh it's it's uh essentially the tie to the pandemic of the sort of harms that the secretary said made relief appropriate so let me say at the outset that I agree that those kinds of arguments I think find a much more natural home and arbitrary and capricious analysis and the reason for that is because it's clear that Congress tolerated uh over breadth in this statute it told the secretary for example that he can act on a classified basis he doesn't need to go Case by case with respect to each individual borrower who stands to benefit under Heroes act relief is said he should take action to ensure that is make certain that borrowers aren't left worse off as may be necessary not as strictly necessary so once we're in the world where it's clear under the statute that the secretary isn't violating the heroes act by providing relief that's class wide and may have the effect of offering critical benefits to borrowers who as it turns out wouldn't have needed them in the absence of the relief then I think the question boils down to has the secretary Justified his line drawing and the scope of relief and that really should function under arbitrary and capricious review and here I think with respect to all of the state States arguments they lack Merit when you look at the secretary's explanation for why this relief and his judgment was necessary he documented the substantial economic impacts of the coveted pandemic across the entire country that's already necessitated unprecedented levels of age that we've never seen before 5 trillion dollars in other pandemic relief efforts this forbearance policy under the heroes act the department had never put into place before so he documented those financial effects the pandemic has had on borrowers and then he explained using data that he examined that huge swaz substantial percentages of borrowers were going to be at serious risk of default and delinquency or inability to pay their loans once forbearance ends and that ultimately Justified his decision about how to craft the limits within the program and the scope of relief to offer and I think that all of the state's arguments about how that wasn't strictly necessary or that maybe it doesn't have enough of a connection to the pandemic are answered in full by the secretary's analysis here thank you Justice Gorsuch I'd like to follow up on Justice kagan's question General um under State Farm one of the things that the government must normally do is in its memoranda explain not just the the benefits of its proposed course course of action but also grapple with the costs or negative effects of a program that it proposes and your friends on the other side argue that that's another deficiency in the secretary's memorandum and I'd like to give you the chance to respond to that yes of course so I want to say at the outset that my friends are mistaken to suggest that the secretary didn't even consider costs here the department extensively modeled the costs associated with this program and submitted those cost estimates I I don't just mean the numbers but generally the the negative effects to the economy to other persons to people who don't have this opportunity for debt relief there are a variety of factors that under State Farm normally the government would have to consider and and your friends on the other side argue those are not present in this memorandum well I think that those were certainly part and parcel of the secretary's determination about how to tailor this relief that secretary recognized that the Central purpose of the heroes Act was implicated here because there were going to be millions and millions of student loan borrowers who were at serious risk of default and who were in a worse position because of the pandemic but then he decided to tailor the plan to look at that those particular risks and decide on the scope of relief to offer those borrowers and of course the costs associated with that or the flip side of providing Heroes act relief in any circumstance there are always going to be the the cost to the government of offering that benefit to borrowers not just the cost of government I'm sorry to interrupt but what I think they argue that is missing is cost to other persons in terms of fairness for example people who've paid their loans people who um don't have planned their lives around not seeking owns and people who are not eligible for loans in the first place and that a half a trillion dollars is being diverted to one group of favored persons over others I think that's the nature of their argument in addition to as you point out the cost to the Fisk I didn't see anything in the memorandum that dealt with those kinds of questions and if there is something I'd be appreciative if you could point me to it no there's not but that's because I think that those kinds of arguments are inconsistent with the statutory scheme that Congress set up here Congress already made the Judgment that in the context of a National Emergency you should be able to provide borrowers with this kind of relief to serve this purpose and so I think for for the states to suggest that it's incumbent on the secretary to say actually I'm not going to do that even though Congress wanted me to ensure that borrowers won't be left first off it's just at war with the whole statutory purpose I appreciate that Congress has given uh the executive branch a lot of emergency Authority and I think you're argument rests on that but it also requires generally the president to specify the provisions of law under which he proposes that he or others will act uh that's 50 USC 1631 I think my notes are right um and I'm just wondering did that happen here yes it did so the covid-19 emergency um the specific Provisions that he invoked were part of the Social Security Act and hhs's authority to Target the spread of disease and I can't give you the exact citation here but that discrimination was made did he indicate anything under the heroes act or the Department of Education that's acting in this case no but I think that it's clear that the heroes Act is linked to the Declaration of the National Emergency not the other way around okay and then finally on standing um in the New York census case the majority of this Court held that the failure to count an individual potential failure to count an individual uh under count uh the census would have potential effects to the state of New York and determs in terms of the benefits it might later receive that kind of knock-on effect was sufficient to constitute standing in that case and I'd just like to get your thoughts on how you'd have us distinguish that sure so in that case of course the court was looking at a Census count that was going to plug in directly to the amount of federal funding that the state would receive and I think that you know in the kind of terminology that we've been using and thinking about this issue with that was a direct effect that effectively the action would by virtue of determining Federal funding for the state in that way operate directly on the state or or at least determine its rights and interests and here there's not the same kind of direct effect of courses I've already mentioned to Justice Sotomayor we think that this is a self-inflicted injury to begin with so the court doesn't need to get into those issues but even if it does here the kind of Downstream effects on tax revenues bring this case within Florida versus Mellon as the closest analog and not Department of Commerce thank you Justice Kavanaugh like to pick up on the chief justices and Justice Thomas's questions on statutory text and then our precedent I think you said earlier what was Congress in 2003 supposed to do in terms of Advance authorization but of course they could have in 2003 referred to loan cancellation and loan forgiveness and those are not in the statutory tax so then that leaves us with a situation that I think we've seen before an old statute General language Congress specifically considering the present issue repeatedly but not as you acknowledged passing legislation that would authorize the specific action and then in the wake of congress not authorizing the action the executive nonetheless doing a massive new program and that seems problematic under going back to the Benzene case the brown and Williamson uarg you know the line of cases so why does this case not fit into that formula that we've seen before in Prior cases so there was a lot packed in there and I want to be careful and try to respond to each of the considerations you raise because I think actually down the line this case is a far cry from those prior situations the court is confronted you mentioned the idea of taking an old statute with you know General language or cryptic language and pressing it into service I don't think that that is a fair characterization of this use of the heroes act the whole point of this statute its Central Mission and function is to ensure that in the face of a National Emergency that is causing Financial harm to borrowers the secretary can do something he can alter the Student Loan program to ensure that they're not worse off so there's not the same mismatch here of taking an old statute and dusting it off and deploying it in a context where Congress could never have imagined it would be used before instead this is a perfect fit with the problem that the secretary confronted you also suggested that there would have been a clearer way for Congress to formulate this language that there's no Express reference here but I think that that doesn't carry a lot of significance in this context because of course Congress didn't enumerate any of the possible forms of relief under the heroes act it says that the secretary can consider waiving or modifying all title IV provisions and certainly if there was an enumerated list you might be able to draw inferences from that but here I think the opposite inference applies that Congress wanted to cover the Waterfront and ensure in advance that the secretary had the tools depending on whatever situation he confronted to make sure the student loan borrowers weren't going to be left worse off you mentioned the Congressional in action and I think that it's true that I acknowledge that that demonstrates that this is a politically significant issue we have we have never contested that point But there again as I mentioned to the Chief Justice we have inaction on both sides Congress has not amended the heroes Act and instead enacted the provision of the American Rescue plan that anticipated this this program in particular and facilitated it by ensuring that those discharges would not be subject to Federal Taxation and then the other thing I would add you didn't you did not put this in but if you'll indulge me this is not a situation where the secretary is acting outside the heartland of his authority in some of the cases that you've mentioned you have you know concerns that the the agency is acting outside the core of its domain the CDC inserting itself in the landlord-tenant relationship for example but that's not what we have here this is the Student Loan program that falls within the Wheelhouse of the Secretary of Education the exercise is comprehensive authority over that program these are Federal loans between the federal government and student loan borrowers so this is a situation where the secretary is really acting within the core of his expertise and his authority something else you said earlier was that we shouldn't necessarily apply that line of precedent in this situation because this is not a regulatory program but but a benefits program but I want to push back a little bit on that and get your response which is in something like this there are going to be winners and losers uh and um that raises similar concerns about individual rights individual liberty that are present arguably in regulatory programs as well and why therefore when the same line of Precedence that we've applied in the regulatory context apply also in the benefits context to consider whether we need specific Express Congressional authorization well I think that at the very least to the extent that there are those considerations that you referenced they're not Direct in the same way that expansive regulatory Authority is you know when you've got a government program that is as the court has said before constitutes extravagant regulatory authorities that takes an identifiable group of individuals or entities and direct directly imposes burdens or costs on them and I think there is a distinction with the benefit context when it comes to how Congress is likely to legislate and its General Comfort level with broadly empowering the executive to provide benefits to Americans especially in the context of an emergency situation but even if you didn't think that that benefits and regulation distinction should carry the day and be a brightline rule at the very least I think it should factor into the analysis when applying interpretive principles here and in looking at what Congress is is doing and as I mentioned before and and would love to finish here you know think about what Congress is supposed to do there you are Congress in 2003 thinking we can't predict the future we don't know exactly what national emergencies will happen but we what we want to ensure is that we are empowering the federal government to take care of student loan borrowers and not leave them at substantial risk of being worse off with their ability to repay their loans and the language the Congress enacted here is a perfect fit to accomplish that goal and it's hard to see what Congress could have done differently last question broadening it out and thinking about you mentioned emergencies the history of this court with respect to executive assertions of emergencies some of the biggest mistakes in the Court's history were deferring to assertions of executive emergency power some of the finest moments in the Court's history were pushing back against presidential assertions of emergency power and that's continued and not just in the Korean War but post 911 in some of the cases there so given that history there's a concern I suppose that I feel at least about how to handle an emergency assertion you know some of the amicus briefs one of them from a professor says this is a case study and abuse of a executive emergency power so I'm not saying I agree with that I'm just saying that's the assertion and I want to get your assessment this is a big picture question so I'll give you a little time of how we should think about our role in assertion of presidential immersion emergency power given the Court's history well I think in in light of that history in all of the contexts that you identified it's aware of the distinction between regulation and benefits really makes a difference and it actually tracks some of the concerns that have been raised about standing and the chief Justice's questions about who could actually Sue on this plan and what role there is for the Judiciary to the extent that there is a limited category of people who have the actual kind of cognizable article 3 harm that would permit standing in a case like this one I think that just shows that that's because when the government is administering a benefits program there are fewer reasons to be concerned that it is going to have the kind of profound burdens or or regulatory effects that might prompt a note of caution in other contexts involving exercises of emergency Powers instead I think that the considerations all line up on the other side when you think about an emergency situation it is logical for congress in in confronting that possibility to think we want to make sure that without delay the executive branch can take care of Americans and can get them essential benefits it did so here with language that has many other limitations so we are not claiming just Limitless Authority for the federal government to do what it wants in an emergency the heroes act limits the circumstances that can trigger The Authority it says who you can help it says how you can help them and it enumerates the purposes that the aid has to serve so in all of those ways Congress confined that Authority but in a circumstance like this one where the secretary has made the findings that without this critical relief for debtors we are going to have a wave of default across the country with all of the negative consequences that has for borrowers I think it is precisely the type of context where the executive should be able to implement those emergency Powers thank you very much Justice Barrett so I know my first question is clarifying because I think I may have misunderstood you said at the start of your argument that the secretary both waived and modified I had understood that the secretary only relied on the modification in the Federal Register at the relevant sites at 87 Federal registers 61 512 and 61 514 is it in those same did I just miss in there did he also specifically say wave so I I understand where your confusion comes from because at times in the Federal Register he spoke of modifications and then if you read down in the next paragraph he said these waivers will so I think he was treating these as both waivers and modifications and the relevant decision memo specifically says I hereby issue waivers and modifications of the relevant provisions of title IV that's at the site I gave earlier at ja 261 so I would look at that as well to understand what the secretary was doing okay and to be clear and I think maybe some of the confusion is waivers I guess when I saw that in the language I thought he was talking using waiver as a synonym for cancellation there with respect to the underlying debt the waiver of the obligation to pay back the principal and just to be clear waiver in the statute refers to waiving the statutory and Regulatory Provisions not waiving the obligation to repay that's correct so then if you kind of Trace through the specific Provisions that he invoked they are statutory and Regulatory provisions and they establish the terms of the Student Loan program and then also deal with discharge and cancellation Authority and he said that he was issuing waivers and modifications of all of those provisions and I think the right way to conceptualize this is that he was waiving the elements of the discharge and cancellation Provisions that are inapplicable in this program that would limit eligibility to other contexts and then modifying the provisions to bring it in line with this program and the student loan borrowers who are eligible for Relief so kind of like if you think of it as red penciling both deleting and then adding back in waving and then putting his own requirements in that's right and the states have suggested there was something improper about adding the requirements in but the heroes act directs him to do this that's subsection B2 specific specifically says he has to publish the terms and conditions for the Loan program that are going to apply in lieu of the wave to modified provision so there's nothing improper about the secretary delineating how those waivers or modifications were going to operate okay next question is also a clarification because I want to be sure I understand your position on LeBron and the overlap potentially between when we're thinking about are you acting as an arm of the government for purposes of say like in the Amtrak sense are you Bound by the First Amendment and are is Mohela part of the government of Missouri for purposes of standing so could mojilla say deny loans to people on the basis of their race or their religion would the First Amendment bind Mohela I think the Mohela likely would qualify as a state actor under the LeBron test but I don't think that the LeBron test should in any way be controlling for article 3 standing purposes well why would that be how can they be part of the government for purposes of the state action Doctrine but then not for purposes of standing either they are they are not part of the government of Missouri right so we're certainly not disputing that they could be that they're a public instrumentality that they have governmental functions uh and that's the kind of inquiry the court would engage in to determine whether they're brought within the state action Doctrine but one way to think about this is that the court in trying to kind of analyze who's a state actor has made clear that it would be inappropriate for a state to be able to separately incorporate an instrumentality for example and that way evade the structures of the Constitution there's kind of a good Equitable reason to ensure that states can't thereby unbind themselves from the Bill of Rights with respect to fundamental rights of citizens here I think all of the Equitable considerations line up in precisely the opposite direction we have a situation here where Missouri has benefited from the corporate separateness it's ensured that it's not going to be responsible for mohelist debts and to now allow it to come in and blur that line and say actually you should just treat it and this separate Corporation is one and the same would actually produce the kind of inequity that the state action Doctrine is guarding against so two different buckets three if you throw in sovereign immunity too you'd say one test is for purposes of State action and other tests for purposes of sovereign immunity and another test for purposes of standing that's right and for sovereign immunity I just want to be clear that we don't think Mohela actually qualifies as an arm of the state for sovereign immunity purposes because they're one of the critical factors is whether a lawsuit against the instrumentality can get at the State Treasury and hear the financial separation makes clear that there is a strict wall and that Missouri is not going to be responsible for mojilla's debts lower courts have gone both directions on this but we think that under this Court's precedent mohila wouldn't qualify as an arm of the state even if it did though yes we think that there is a different inquiry under article three okay and now I just want to return to Justice kagan's questions about whether we think about these as statutory arguments or arbitrary and capricious arguments some of these arguments about are you leaving them worse off or better off specifically I want to focus on the causation it seems to me that the government's position must be that the heroes act permits but for causation it doesn't require approximate cause because the secretary's memo also refers to things like Russia's invasion of Ukraine and you know inflation and other things that would well I mean the invasion of Ukraine has nothing to do with covid but the other things that would have a more attenuated relationship to covet so is that your position it would be above four yes that is our position we think that it should be about poor causation and the states were challenging that below they haven't actually revived those arguments here and I don't understand them to be to be urging a different standard or at least they haven't made that a central aspect of their arguments in the quote would that bear on the question of whether this is a statutory and tape interpretation question or not whether this is within the secretary's Authority I mean below the government took the position too that even in 10 years from now it could forgive loans based on covid if effects were lingering right no The District Court completely misunderstood that call a quiet oral argument what government Council said in that oral argument is if the National Emergency is ongoing if we are still in 10 years in the midst of a raging covid pandemic and it's producing all of those same harms he said it would be hard to Fathom and of course we know that we are actually as a nation now working to recover from the pandemic but in the counterfactual world as he understood the hypothetical he said the heroes act Authority would continue to apply we are not suggesting that you could have that kind of temporal attenuation from a national emergency and say that you know ending today and going forward 10 years from now you could point back to covid in in this time period as a basis for Heroes act relief but of course we don't have anything like that the secretary acted now in the midst of the pandemic and in in recognition that it's time for the forbearance policy to end but that is going to leave huge numbers of borrowers uh unable to pay their loans that's very helpful thank you justice Jackson yes I have two questions one concrete and one big picture the concrete question comes from a statement that you make in your reply brief about Mohela standing to earn offsetting fees can you spell out what those us but by that I mean offsetting fees from the discharges so that we aren't even really sure you you know what the net loss would be can you spell a little bit more about those yes so under the Department's contracts with mojilla mojila receives fees for discharging accounts and we were making the point that here Missouri hasn't come forward with any allegations that mojillo will actually some total suffer Financial injury under this plan this is all just in service of making the the broader point that any Financial effects Downstream on the state here are attenuated and speculative so we don't know really what the ultimate loss would be to moheli even if we believe that mojilla is part of the state that's right the states haven't offered any evidence in that regard to substantiate their assertion of standing all right and and I also have a big picture question about standing you've been arguing uh that standing here would be a reach um if we were to for example find that you know Mohela somehow losses to it count for the purpose of the state base based on established standing principles and what I've been mulling and wondering is whether the same concerns about the political significance of this case that the chief pointed to could be a reason for us to hold the line in terms of thinking about our standing Doctrine and whether or not we should expand it in this area I understood that the standing bar really you know as applied in a case like this would allow the political branches to Hash this out without interference uh you know from a torrent of lawsuits brought by States and entities and individuals who don't have a real personal stake in the outcome and in some ways it's not unlike a case we heard last week where people were very concerned about you know lawsuits against tech companies and how they might hobble these companies if we allowed them to go forward and I guess I have that same worry about the operation of the federal government and its ability to govern if we look at our standing Doctrine in cases like this and we find that you know even the most minor State interest a dormant fund that hasn't been you know funded or used by the state in 15 years if that can be the basis for standing I guess I'm concerned that we're going to have a problem in terms of of the federal government's ability to operate so my question is is this a legitimate concern and should we be thinking in cases like this about that type of concern as we Ponder whether to expand our standing doctrines I think it is a legitimate concern the court has never suggested before that it should alter ordinary article 3 principles and allow plaintiffs to sue based on concerns about the significance of the action and in fact the court has said again and again again that the fact that no one might have standing to sue about an action doesn't mean that you should alter article 3 and allow a suit to proceed because the Judiciary doesn't sit as a roving commission to rule on the legality of either congress's enactments or the executive's implementation of those enactments but I think it would be particularly anomalous in this case to accept any of the state's attenuated theories of standing because there isn't even a situation where there's no other identical identifiable plaintiff or possibility to have the the courts weigh in on these issues the problem here is that the states aren't the proper plaintiff to bring this suit thank you General Campbell Mr chief justice and may have pleased the court the secretary is attempting to bypass Congress on one of today's most debated policy questions student loan forgiveness after many failed legislative efforts the secretary seeks to write off nearly a half trillion dollars in loans for over 40 million borrowers no statute authorizes this sweeping action on standing Missouri has the right to vindicate the harms to Mohela Mohela is a state-created and state-controlled public instrumentality that performs the essential public function of providing financial aid to Missouri students the secretary's program threatens to cut mojilla's operating Revenue by 40 percent that will directly undermine mojila's ability to further its critical public purposes and the state has standing to assert those harms on the merits this is a major questions case a nearly half trillion dollar debt cancellation program is undoubtedly a matter of vast economic and political significance it is also unprecedented never before has the heroes act been used to forgive a single Loan in addition the secretary here asserts a breathtaking power to do anything that he thinks might reduce the risk of borrowers defaulting even years after a National Emergency arises he needs clear Congressional authorization for such power but he doesn't have it here because the heroes act does not authorize this program the ACT permits the secretary to waive or modify existing Provisions because of a National Emergency it does not permit him to rewrite existing Provisions to create a new program that covers 95 percent of borrowers and applies to them regardless of how the pandemic affected them this court should declare this program unlawful and I welcome the Court's questions uh General I think at the beginning you should comment some on the relationship between Mohela and the state of Missouri primarily the as you've heard uh the effect of this uh forgiveness program on Mohela and by extension on the state of Missouri for the um at least to establish a standing sure Justice Thomas to start with the effect on Mohela so Mohela approximately as of last fiscal year 77 percent of its operating Revenue came from servicing Direct Loans the secretary tells us that nearly half of all loan all borrowers loans will be discharged under this program so it stands to reason that about half of mohela's operating revenue from Direct Loans will be cut and overall that amounts to about 40 percent of its operating Revenue now Justice Jackson asked the question about whether there are offsetting fees it's very hard to believe and the government doesn't offer any details in its reply brief that a one-time payment of fees for discharging loans will offset the ongoing fee that Mohela earns from servicing those loans isn't that your burden I mean I understood the government to say that you are bringing this lawsuit and you have to establish standing and so to the extent we're trying to assess whether or not Mohela is actually going to be injured I I don't think you can answer but the government hasn't said something about the fees well the guy my point in bringing that up justice Jackson is that the government has any hasn't said anything about the fees in responding to what we've already substantiated through the documents we've put in we have put in documents indicating that this will amount to approximately a 40 percent loss of operating revenue for Mohela and in response the government referenced potential offsetting costs which they don't quantify and they don't show that that would significantly reduce the injury that we're anticipating mojilla isn't here General Crawford is that correct Mohela is not here but he's interested to Sue and be sued it's been set up as an independent corporate entity with the ability to bring suits on its own usually we don't allow one person to step into another's shoes and say I think that that person suffered a harm even if the harm is very great um uh we we we leave it to the person him or her or itself to make that judgment now here the state has derived very substantial benefits from setting up mohillah as an independent body with a financial distance from the state and Sue and be sued Authority so why isn't mahila responsible for deciding whether to bring this suit we don't deny that mohila has could file a suit like that but the state's interest is directly implicated here so it is allowed to assert the interest it has in Mohela directly but I guess I mean there are third parties all the time who have an interest and gosh I wish that party over there would bring a suit um because uh I have some relationship with that third party and I would like it very much if that third party represented its own interests better in my view but we don't do that we we we don't allow that kind of um uh interference with the decision of the entity involved to decide whether the harm is of the kind that uh that they want to sue for well the government is different this court has recognized that in cases like Cherry cotton Mills and Erickson where it's allowed the federal government to assert the interests of federally created corporations I I believe that in those cases the federal government had an independent interest so the federal government was not saying oh we just have an entitlement to stand in the shoes of the the federal Corporation two two responses the first response is I don't think that's the best reading certainly of cherry cotton Mills Cherry cotton Mills the court discussed the number of facts and then at the end said the reason why the government can assert the federal corporation's interest is because it is performing purely governmental purposes that's exactly what's Happening Here the state of Missouri has declared that everything Mohela does is the performance of an essential public function so that's the first response the second response is even if the state does need an interest the state has an interest here I'd identify at least three the first interest is that the state created mojilla to provide financial aid for Missouri students and that's what it does second interest is in the Lewis and Clark Discovery Fund and the third interest is in the regular contributions that Mohela makes to the state scholarship programs now there was some discussion earlier earlier about the Lewis and Clark fund and some suggestion that it's a dormant fund that no longer exist I think it's clear I think we need to clarify what exactly is the status so yes it's true that there hasn't been a contribution in the last 15 years but that's because the state has negotiated with mojila for Mohela in lieu of making the Lewis and Clark contributions to contribute over 65 million dollars directly to the state scholarship program and in exchange for those agreements the the state has allowed the Lewis and Clark deadline to be extended so at this point the question is what's going to happen at the next deadline the next deadline is coming up next year and if the question before this court is whether cutting mohela's operating Revenue by 40 percent will increase the risk that it either won't make the next contribution to the Lewis and Clark fund or it won't make the next payment to the scholarship fund in lieu of the Lewis and Clark fund so that's what's most important to you now is the Lewis and Clark fund it's not your honor what's most important to us is that the state can speak directly for Mohela but I was responding to the question about the interest that I guess I understood the interest to be if Mohela was really Missouri the loss of the servicing fees am I misunderstanding that no you have two different arguments right that argument and then you have this argument about the Lewis and Clark fund that that's correct my first response to Justice Kagan I was trying to focus on the first Theory and then the second response where I got into the Lewis and Clark fund I was responding under the second one so the first Theory um it's hard to imagine how the state of Missouri can claim an injury putting the Lewis and Clark in the scholarship issues aside when it's not responsible for the debts of mola it's not responsible for the contracts it enters into it doesn't own the assets of that Corporation there is on paper no financial obligation by the state or lost to the state by anything mohillah does or anything it gets I'm putting aside Lewis and Clark it's hard it's just very hard for me to say that there is an interest sufficient for the state to speak on behalf of an entity who has the right to sue or be sued when this court in Lebron and when the Missouri Supreme Court and Casualty reciprocal exchange consider whether an entity is a part of the government it looks at a far more broader those are different issues standing has to do with injury it doesn't have to do with are you evading the Constitution are you trying to delegate public functions those are all are you immune because you are acting in a way that only a state can those are very very different questions this is the question of standing which relies on injury and fact how can you have I'm putting Lewis and Clark aside how can you have injury and fat if you've immunized you the state have immunized yourself from any liability or any injury that Mohela can experience because the state speaks for mohillah the state represents well it decided to give this entity the right to sue and be sued so it it chose to say I'm not injured in fact speaking is not the same as injury your honor the the federally created corporations in Cherry cotton Mills and Erickson also had the right to sue and be sued but that didn't stop the federal government from asserting their interests in addition if we're focusing just on the right to sue or be sued the secretary has the right to sue or be sued that doesn't disable the Department of Justice for rep from speaking from now let's go back to Lewis and Clark a moment um the arrangement that mojila and the state engaged in predated the pandemic correct started in 2009 2010 uh the the Lewis and Clark fund started the suspension of mojila's contributions to it started in 2008. um isn't it a series of speculations that in 2004 absence this uh program that the state won't continue that Arrangement it currently has and continue to defer obligations mojila said that if Mohela has already said publicly that it doesn't think that contributions to the Lewis and Clark fund are within its wheelbarrow obligations that was one of the reasons this Arrangement has been made correct well Mohela recognizes that it still owes 105 million dollars to the Lewis and Clark fund well it's in fact I understand it's not writing it office an obligation anymore but it doesn't carry it on its books anymore your honor if you look at page 20 through 21 of the financial statement we cite in our brief mojilla acknowledges that it still owes 105 million dollars to that fund and the point that I was making earlier is that the fun contributions to the fun and contributions to the scholarship program are different sides of the same coin the state has been constantly throughout the entire time uh from 2007 until now has been constantly receiving payments from Mohela and those payments have taken the form sometime of Lewis and Clark but more more often recently is taking the form of a scholarship contribution the actually use the fund to pursue pursue projects in the foreseeable future and if so what projects at this point the projects have been put on pause I see so we're talking about a fund that hasn't been contributed into because the state has waived the obligation to do so for at least a temporary period of time and then even if the funds were to go into this particular fund you don't have a set of plans that you are planning to pursue with them but all that requires is the legislature and the governor to move forward once the money once the fund has been yes no I understand but we're trying to figure out the degree to which the state is injured by the money not being there and so on the one hand you know I hear Justice Sotomayor exploring with you the fact that the state has allowed the money not to be there in the recent past by saying don't worry you don't have to put it in there Mohela so that seems to be a sort of strike against the state now saying we're so injured because the money isn't there and then we have on top of that your representation here that the state isn't even actively seeking or interested in the money and so far as it's decided that it's going to engage in some sort of project that we need the money for so I'm just wondering about the speculative attenuated nature of the harm that you're alleging on the basis of there not being or of the risk that we won't have and extra money put into this fund your honor I I disagree with with what you said that the state has waived the obligation under the fund what the state has done is it's engaged in a quid pro quo discussion with Mohela and it has said that in exchange for 65 million dollars in payments to the scholarship fund it has allowed the the timeline to be extended yes I apologize I'm just saying the state has not pressed Mohela to put money into the fund because it's correct but because it has been receiving money in another fund I appreciate that but I guess I'm just still trying to understand how you can look at that fund as the basis for the injury that you're claiming with respect to this particular plan your honor because the next due date for the fund is the a year from now and you can't extend it it can be extended but that would be in exchange for them giving another contribution to a scholarship fund which is further showing that there are further Financial contributions the plan is not totally uh ridding them of any opportunity to make money so they do have some other income yes uh Mohela yeah their Mohela has other yes Mohela has all right so we could believe that the income that Mohela gets from its other sources of revenue could be used to pay off in a year the uh the the amount that the state says it requires in order to put off the obligation yet again right I I don't I don't think well here's the key point in response what Mohela says in the letter that the government filed a supplemental Authority with the eighth circuit is that they take all available funds beyond their expenses and reasonable reserves and they devote them to Student Financial Aid in Missouri so if their operating revenues are cut by 40 percent we know what they do with the money at the top the excess money they give it to students attending school in Missouri so if their operating revenues go down that's the first thing that's going to go General I'd like to put aside the Lewis and Clark fund for a minute and I want to return to the direct injury argument the mohill is an arm of the state argument Justice Sotomayor was pointing out statutory has the right to sue and be sued the state doesn't have responsibility for its liabilities and the state has disclaimed any any claim to the assets is that correct I would disagree with the last point I don't think the state has disclaimed any interest in the asset so explain to me why because on the one hand you have you know in a Missouri statute 173.420 you have uh the last sentence says that nothing in these sections shall be construed to deprive the state and its governmental subdivisions of their respective Powers over assets of the authority but then in the next section um 425 it says no asset of the authority shall be considered to be part of the revenue of the state so which is it I mean because it would be hard to see how a win for the state would benefit mojilla or win for mojilla would benefit the state if the assets are completely separate you don't get any money out of it putting aside Lewis and Clark because I'm not really interested in that so your honor to to go to the second provision you read uh 425 it says no asset of the authority shall be considered to be part of the revenue of the state within the meaning of a specific State constitutional provision so I would then say that's only for a limited purpose the prior provision that you read where the state has preserved its authority over mojilla's assets shows that any residual interest in mojila's assets belongs to the state so we cited the reciprocal casualty exchange case in our brief that shows that the legislature could abolish an entity like Mohela and if it did the money would come back to the state so the state does have the ultimate interest in the property of mohilla if from mojilla right now at the state just wanted to pull assets out say because the state was going to make a decision to fund the Lewis and Clark fund does the state have the authority to do that acting through the legislature it does okay acting and I think the Lewis and Clark fund is actually a great example of that so the Lewis and Clark fund wasn't created until 26 years after Mohela began its operations and at that point the legislature came in and said well you have to start giving this a source of funding to the state so the legislature can come in at any time and and request money do you want to address why mohill is not here mojilla is not here because the state's asserting its interests ohila doesn't need to be here because the state has the authority to speak for them and that brings me to why didn't the state just make mohilla come then if mohilla is really an arm of the state and all of this would be a lot easier when a sister General conceded that if mohelo was here mojila would have standing if mohilla is an arm of the state why didn't you just strung our mahila and say you've got to pursue this suit your honor that's a question of State politics but we believe as a matter of law that the state has the authority to assert its interests under the factors in Lebron under the factors that the state Missouri state supreme court recognized in casualty reciprocal exchange if it's a state-created and state-controlled entity that performs government functions the state can speak for it we're just along the same lines I mean it's true that you couldn't even get documents from mojila without filing the state equivalent of the foia request your honor that was the the mechanism by which we went about acquiring the documents but that just oh that was the mechanism I think that if mojila was willing to hand you over the documents you wouldn't have filed a state foyer request your honor I think that further shows that mojilla is a state entity they're subject to public records laws they're subject to open meeting laws they are a entity of the state and when you say acting through the legislature in response to Justice Barrett do you mean that uh is sort of the structure of Mohela would have to be Revisited through the legislature in other words you've now set it up we have a law in Missouri that structures this Corporation in a certain way and it is separate So when you say acting through the legislature do you mean that there would have to be some kind of amendment to the way in which Mohela is and operates in order to allow for you to reach its assets I think it would have to be an act of the legislature whether it took the form of amending the existing statutes of whether it was a new statute it would have to be an act of the legislature Council on the merits if I could direct you to the solicitor General's argument suggesting the major questions Doctrine does not apply because this is a benefits program despite our our holding a king versus Burwell um and and arguing that it doesn't implicate the Appropriations Clause authority of Congress can you address that argument please yes your honor the pull point of the major questions Doctrine is to preserve the separation of powers and it rests on the presumption that Congress intends to address major questions I understand that but this is a more specific question with respect to benefits programs and the relationship between it and the Appropriations clause and King versus Burwell your honor the reason why I referenced the underlying Doctrine and why it exists is that those same reasons apply in this benefits context no less than they do in a different regulatory context the separation of powers is Implement implicated here because we're dealing with a congressionally created program in addition if anything I would say that there are more reasons to apply the major questions Doctrine here because what the agency is effectively doing is exercising the power of the purse by going into the federal balance sheet and Crossing off nearly a half trillion dollars in loans payable to the government that is a quintessentially legislative function so that's even more reason why the major questions Doctrine should apply isn't the uh uh you know I was just gonna ask that's the whole purpose of the heroes Act the whole purpose of the heroes Act is to say in either for veterans or enough for Veterans for people who are in military service or in a National Emergency we give you the authority to impose that on us the forbearance of payment is is it 5 billion a month or something like that it's an outrageous sum and yet that is no one is disputing that the secret that the secretary has that power it's not the amount of money the question is what's congress's intent and we know from the hea that Congress recognized that there would be cancellation of debt for schools that close at least why would you think that Congress didn't intend under the heroes Act to permit cancellations of debt if the National Emergency required it because what Congress said in the heroes Act is that the secretary has the power to waive or modify existing Provisions it did not give the secretary but all of those right a waiver well yes it did sorry go ahead General Campbell I mean it it says waiver modify any statutory or regulatory provision applicable to the student financial assistance programs and then it says the secretary can add terms and conditions to be applied in lieu of such statutory and Regulatory Provisions so it's really quite clear here it's like you can waive or modify the old ones and then you can add new ones in lieu of the old ones so you know Congress could not have made this much more clear I mean Congress didn't say exactly the circumstances in which it wanted the secretary to use this authority of course not this is this is a bill about like what happens when you have an emergency so what Congress said is what happens when you have an emergency is the secretary has the power to take care of emergencies and it has that power by way of waving or modifying any provision and adding others in lieu of them a couple responses the adding in lieu of language that has to be understood to mean adding along the lines of a modification it can't be adding just anything the secretary wants it has to be read in context with the terms and you know it's not just modify its waves so it's modify even if we take a kind of MCI type reading of modify or you know through more major changes all the way up to wave and then you can say what terms and conditions should be applied in lieu of those provisions Congress doesn't get much clearer than that we we do Congressional statutes every day that are really confusing this one is not your honor I I disagree that what we're dealing with here is a waiver modification three points on waiver in terms of when when we look at the the publication in the net in the Federal Register it says the secretary modifies the following Provisions so the secretary didn't even purport to waive the loan discharge Provisions that were cited second point that makes sense because the secretary wasn't actually excusing compliance with any of the existing requirements the secretary was ignoring all of those requirements and creating brand new ones to to put in place a brand new program and the third point is again we know that there was no waiver here because affected individuals can continue to access all those existing loan discharge programs if somebody qualifies for the public Loan Service uh program they're able to access it right now so there was no waiver here all we have is an attempt to modify but this goes far beyond a modification because it is the creation of a brand new program that goes far beyond what Congress intended in fact if you think that there is an ability to modify Provisions uh respect and discharge so you know is there any ability because there are these these particular discharge Provisions right and it has to do with death and with when your school closes and so forth so suppose the secretary says that's not enough uh uh I want to do um uh some more your honor I think there's a good example where the secretary's done it in the past that was acceptable so in 2003 the secretary used the power into the heroes act to modify the uh an existing requirement to access student loan and it was under one of those profession-based programs where if you work for a teacher for a certain amount of years you can get into the program so let me give you an example suppose like there's an earthquake we'll use an earthquake instead of a pandemic and the secretary says this isn't enough people are really being hurt by this so we have a provision about the borrower dying the secretary says I'm also going to allow dischargers where the primary earner in the borrower's household dies could the secretary do that your honor I don't believe so because it doesn't sound like a modification of an existing program it sounds like the creation of a brand new really just from the borrower dying the secretary is allowed to do that but but the secretary in in in in the face of this massive earthquake is not allowed to say um or not just the borrower but um the the the primary earner in the borrowers family your honor the question would come down to whether that is a modification it sounds to me like it might go too far because it's creating a new program but I mean it's a very broad language go go modify or wave any statutory or regulatory provision and come up with new ones and you're not even going to allow me that your honor I was going to say even if that would be sufficient here it's nothing like this program this is a program that includes 95 percent of borrowers regardless of how they were affected by the pandemic because the secretary say well there was this terrible earthquake in lots of people's houses were destroyed and um so I'm going to uh uh and discharge the loans of people whose houses were destroyed in this terrible earthquake your honor it sounds to me like creating a new program I don't think that that would be okay under the heroes act now what I would say I guess you know this is an emergency provision there's an emergency it's an earthquake you don't think Congress wanted to give and and not just wanted it's not unless Congress thought it's what Congress said to give the secretary power to say oh my gosh people have had their homes wiped out we're going to discharge their student loans your honor when it comes to taking that ultimate step to discharging loans Congress wanted to preserve that for itself and I think we know we Congress acts where do you see that in the statute I mean the the provision of the statute says any statutory or regulatory provision applicable to the Student Loan program you can waive you can add another to deal with an emergency this isn't a massive delegation to the Secretary of Education it's it's designed to deal with emergency conditions you have a lot of power in emergencies when those people's homes are destroyed you have the power to um to discharge their loans but Congress still has a voice in emergencies and we see that through the cares Congress used its voice Congress used its voice in enacting this piece of legislation all this business about executive power I mean we worry about executive power when Congress hasn't authorized the use of executive power here Congress has authorized the use of executive power in an emergency situation where in that sphere you know in those old all those zones we're in that sphere where the executive is acting with Congressional authorization your honor I disagree that this is Congressional authorization because it's not a modification it goes way beyond that it creates a brand new program and that's not what the heroes act allowed if the heroes act did allow the wholesale rewriting of statutes whenever an emergency arose then that would create an issue constitutional issue under Clinton versus city of New York and it essentially would be allowing the executive branch to go in and rewrite statutes after the fact and the executive branch doesn't have that power thank you Council um just pick up on the discussion uh that we've been having at the breadth of the statute at issue here how does it compare to the breadth of the statutes that were at issue in our major questions Doctrine where we indicated enough even though the breadth of some of those Provisions would by their terms literally cover the authority that the agency exercised that given the nature of the authority and its consequences that was not clear enough your honor I think it fits within those cases and I would point the court specifically to Alabama Association of Realtors in that case the statute authorized the relevant federal official to engage in actions that he thought in his judgment were necessary or in his judgment may be necessary yet this court looked at that language and said that it was not broad enough to to authorize the the action at issue there the CDC eviction moratorium and it did so because of the major questions doctor Justice Thomas Justice Alito Justice Sotomayor this is substantially different because the secretary is authorized to cancel loans under hea so this is not an action as a moratorium on eviction which had never occurred previously or wasn't within the Wheelhouse of the agency at least that's what the court said I have I had a difference of opinion putting that aside this is not an action that could come as a surprise because it is expressly permitted under the hea ACT and nothing in the heroes act says that the secretary can't do something that's in the normal course of its business in circumstances that justify it like a school closing or like a school engaged in fraud those are exceptions that clearly are permitted under the hea to cancel a debt so why would I have a view that Congress didn't understand that in an improper emergency debt cancellation would be right I would go back to my prior prior answer which is there's a difference between modifying an existing loan forgiveness program in light of the National Emergency which is appropriate an example of that is to take the existing loan discharge program for teachers and there has to be consecutive service and to say if the reason why that teacher would fall out of the consecutive service requirement is because of the National Emergency it's okay to waive that requirement or to modify that it's changing the program I mean favor is an extinguishment um whether you're whether you're rewriting it to say a National Emergency will pause your service years statute says you have to serve consecutively and the secretary is saying you don't have to you're rewriting the statute you just want to say this is a bigger rewrite than I like but it's not rewriting the statute it's just saying this obligation is terminated this obligation to serve continuously is terminated for this period of time it's a bigger rewrite than the words waiver modifier that that really has us um as the third branch of government changing congress's words because we don't think we like what's happening your honor there's a 50 million students who are uh will benefit from this who today will struggle many of them don't have assets sufficient to bail them out after the pandemic they don't have friends or families or others who can help them make these payments the evidence is clear that many of them will have to default their financial situation will be even worse because once you default the hardship on you is exponentially greater you can't get credit you're going to pay higher prices for things they are going to continue to suffer from this pandemic in a way that the general population doesn't and what you're saying is now we're going to give judges the right to decide how much Aid to give them instead of the person with the expertise and the experience the Secretary of Education who's been dealing with educational issues and the problems surrounding student loans we're going to take it upon ourselves instead of leaving that decision in the hands of the person who has experience with these questions your honor there are additional statutory Clues showing that Congress didn't intend the creation of new loan discharge programs I'd point the court to subsection a2d that their Congress specifically identified one limited instance where the secretary could excuse the return of funds owed to the government that was grant overpayments that was a convergency or that was a situation that was so generous That's What emergencies are generous situations that the secretary can address in a particular situation your honor I think by identifying that specific example Congress was sending a message that it did not want the other Provisions to be used to create new loan discharge programs Justice Kagan Justice Gorsuch it understood the office of legal council's memorandum to suggest that the secretary under the statute had authority to put student borrowers in in the same condition that they were in prior to the emergency and that the nature of your argument is that that that test is not met do you agree with the olc's position and understanding of the statute and and do you and how do you how do you argue that it succeeded that Authority your honor I disagree with most everything in the olc opinion but I agree with that part of the olc opinion I think it's right that that's what the phrase no worse position means it means Congress was telling the the secretary he had the authority to keep borrowers near the status quo but what we have here is a program that for 20 million Borrowers is going to leave them without a single outstanding loan that goes well beyond putting them back in the status quo entity and for the other approximately 20 million borrowers that stand to benefit from this their average debt is going to go from twenty nine thousand dollars to thirteen thousand dollars again far beyond returning to the status quo auntie and I understand the secretary has considerable expertise when it comes to educational Affairs but with in terms of macroeconomic policy do we normally assume that every every secretary cabinet member has learned as they are has that kind of knowledge no we don't when we're dealing with a nearly half trillion dollar loan cancellation program this is squarely in the Ken of Congress Congress has the power and expertise to weigh the balancing competing fiscal implications particularly at that scale so this is something that's outside the secretary's expertise Justice Kavanaugh I think when we're talking about emergency powers that certainly focuses the inquiry but that doesn't uh mean that the executive can't take action and it all then turns on the I think the language of the statute at issue and the kind of action taken and I think you have a a good argument on modify but what do you do with the word wave that is an extremely broad word uh in 2003 Congress was very aware of potential emergency actions in the wake of September 11th and War possible terrorist attacks and yet it puts that extremely broad word wave into the statute why not just read that as writ you're honor I believe we are reading it is written uh wave means to excuse compliance with an existing obligation and what the secretary is purporting to do here is to change existing loan discharge program the secretary's not waiving anything in those provisions and so we think as I explained earlier that the word waiver simply doesn't apply here now to the extent the court looks at the term labor and finds that that's caused to read the phrase waive or modify a little more broadly it still doesn't reach this program because the secretary is not dealing with any of these existing Provisions that he purports to site he's not changing anything within them he's frankly ignoring what's there and creating a brand new program and that's not within the language of this statute you don't think that fits within waiver I don't believe it does no a waiver is to take something away and the secretary is not taking anything away from the cited loan discharge provisions and then on the um body of precedent we've developed within the pandemic on emergency powers and and major executive actions we have the eviction moratorium case we have the national OSHA band aid case but on the other hand we have the health care mandate case and I think the distinction one of the distinctions drawn there was that was more in the in the Wheelhouse of the agency in question and I think the solicitor general has argued and just get your response on this is right in the Wheelhouse Justice Sotomayor is just saying this right in the Wheelhouse of what the Secretary of Education would normally be expected to do unlike CDC doing an eviction moratorium I know you've addressed this a little bit but just get your response on that your honor I don't think it's in the Wheelhouse because it's creating a brand new program the only entity that has created new loan discharge programs is Congress there's a number of them in the Higher Education Act but the secretary has never before created a brand new loan cancellation program particularly under the heroes act as I mentioned at the outset the heroes act has never even been used to forgive a single Loan in the past that's telling because one of the things the court looks at in its major questions jurisprudence is if it's unprecedented and we certainly have an unprecedented use of a statute here thank you justice Barrett two questions one on merits one on standing um first on the merits do you agree that this Administration and the prior administration had authorization under the heroes act to pause loan rape loan repayment obligations your honor it's a we're not challenging it in this case I don't think the question is do you think it's within it this kind of goes to the scope of waiver modify right yes I I think that the so if I can go through the timeline to explain so the first seven days on March 20th 2020 uh secretary DeVos waved but didn't indicate what legal Authority she was using I have no way to assess that because I just don't know what what Authority she was using then Congress came in seven days later and enacted the cares act the cares act put a payment pause in place for six months at the end of that six-month period secretary DeVos extended it for three months I think arguably that was a legitimate use of the heroes act because taking a congressionally created six-month program and extending it for three months seems like it might be a modification but now there were two years down the road we're Beyond modification and not only that the connection to the National emergency has become even more tenuous so your argument is that even assuming that secretary DeVos initially had the authority to and you're you're kind of just whiffing on the question about before the cares Act was passed right but you're talking about after the cares Act was passed she arguably had Authority Under the heroes act to extend the pause but that at some point is that time dragged on post the cares act when the new Administration came in then it exceeded the authority to waiver modify your honor it could have been the secretary of the boss had two extensions it could have been her second extension I don't think it hinges on who the administration was at some point I think it goes beyond a modification and the connection to the National Emergency became too tenuous to maintain it so it's not that a pause is different in your mind than can canceling the obligation to repay the principal it's the or I guess it's a combination of the distinction between a pause and a cancellation and then the temporal correct correct because I do think there are significant distinctions between a pause and cancellation I'll give you a few the first is a pause maintains the status quo cancellation puts people in a far better this cancellation puts people in a far better position a pause keeps indebtedness from rising versus cancellation erases indebtedness in addition as I mentioned before the connection to the National Emergency when you put a pause in place when the nation is still dealing with lockdown conditions that is a there's a pretty close connection between that and a National Emergency when two and a half years down the road the secretary having much time to contemplate this this uh the situation comes in and creates a debt forgiveness program for 95 percent of borrowers the connection to the to the National Emergency I understand second question understanding could Missouri file suit to vindicate the interests of the city of St Louis no your honor because when we look at the factors that we've cited for why Mohela is a state created and state-controlled entity the leadership of the city of Missouri is not selected by the governor or by the state they're selected at the local level thank you justice Jackson so can I just understand your view on waiver or modification with respect to sort of the initial applications of this Authority um you know we're sort of in a certain species of it now but I'd understood from the SG and from the briefs that originally we're talking about wartime um and and so I'm just trying to understand are you saying that those were not legitimate waivers or modifications under this kind of power your honor we don't question any of the uses of the heroes act prior to 2020 so right what is what is your view again I'm just trying to clarify your exchange with with Justice Kavanaugh on what waiver means so are you saying that the secretary would have had to change something about the regulations but not about their application with respect to the obligations that they require of people your honor if I can try to illustrate it with an example I think this might get to it there is an existing loan discharge program for permanent disability and that requires an individual to expect to be permanently disabled for at least 60 months if the secretary came in and said because of the National Emergency if someone was affected because of that they can reduce that 60-month requirement down to say 36 months that to me is a modification of an existing program that would be an example in terms of waiver waiver is when the secretary goes in and would take out an entire uh one of the existing requirements and that's not what the secretary is doing here I understand but but you're I guess my question is do you dispute that under the prior circumstances people owed a certain amount and what the secretary did was modified the amount that they would owe as a result of this um loan your honor I think that's exactly what he was trying to do and I think that highlights why there's a problem here let me point the court specifically to the statute that we cite on pages 46 through 47 of our brief Congress knows how to authorize the secretary to waive or modify an amount owed we cite Provisions in a Higher Education Act that specifically say the secretary shall waive the amount owed here the secretary wasn't given that language if the secretary instead was given the power to waive or modify provisions and so that's why the analysis why doesn't it all reduce to the same thing and this is where I go back to the sort of original application I mean so fine we have wartime people who are away and you say you have no problem with the secretary modifying the regulations in so far as it would help them but doesn't it reduce to just them not having to pay as much I don't understand why there's really a distinction between waving the the regulations in the way that you're reading this and waving the amount a person owes under a regulation that relates to a loan your honor there's never been a past use of the heroes act that would eliminate the amount that someone owes so I don't think there's a prior comparator to look to okay let me just ask you one final question on my big picture concern so I was listening carefully to your opening statement and you started by indicating that this is one of today's most debated policy questions and you ended by saying that we the courts should essentially answer it by invalidating this program and what concerns me is that to the extent you're talking about separation of powers and major questions the Judiciary is part of the same constitutional separation of powers Dynamic that compels us to think about questions like the major questions Doctrine and I feel like we really do have to be concerned about jumping into the political Fray unless we are prompted to do so by a lawsuit that is brought by someone who has an actual interest so this is why I'm sort of pressing really hard on the standing point and so do you dispute that the ordinary state standing rule would be that a plaintiff cannot establish standing standing by asserting the interests of an independent actor or by saying that an independent actor not before the court will respond to the defendant's actions in a certain way I mean isn't the ordinary rule one that really doesn't cover you and what you're asking for in a way is an extension of our standing principles to allow for the state to proceed with this action I don't believe so I think what we're asking for is the same treatment that the federal government got in Cherry cotton Mills and Erickson we're asking for the ability to assert the interests of the public corporation that the state of Missouri created that it controls and that it charged with performing nothing but essential all right so we'll go back and look at that case and if we find that the federal government had some sort of a separate interest that it was asserting do you lose I mean is that your only case that is going to make it um be the case that we can find standing for you uh know your honor I think that those cases are certainly helpful I would direct the court if the court wants to look under um either federal law to see what it takes to be a part of the government I would direct the court to LeBron and Department of Transportation that we cite if the court wants to check the distinction that this that the SG pointed to with respect to what those cases were about those were not standing cases we have different doctrines that apply when we're looking at different issues and the issue of whether or not you are injured by uh you know an injury to another entity an independent Corporation seems to me to be a separate thing so do you have a case that would help us to understand whether an entity like wohela that has totally been isolated through state law from liability that can sue for itself Etc you have a case where we've said that same kind of entity you can sue as a state because you're injured for standing purposes your honor I think the closest cases we have are the ones I referenced before Cherry cotton Mills and Erickson but I will say that part of the inquiry has to look to state law to see if Missouri is charged with speaking has the ability to speak on behalf of Mohela and on that front I would point the court to two things one is Missouri statute 27.06 0.060 which gives the Attorney General the right to determine whether to litigate I'm in the name of the state to protect any interest of the state and because that's the question here right but because mojila is a part of the state and the second point that I would direct the court to is the casualty reciprocal exchange case that's the case that specifically identified what it means to be a public corporation under Missouri state law and it identifies the same factors that LeBron looked to it's whether it was created by the government controlled by the gov government and whether it's performing essential public purposes thank you thank you thank you Council rebuttal General thank you Mr chief justice I'll pick up with standing and focus on the mojila related arguments Justice Barrett you asked about the provision of state law 173.420 this is a provision that refers generally to Missouri reserving rights over the assets of mohila I think if you look at that in context it clearly functions as a savings Clause it's making clear that notwithstanding all of the other Provisions we've pointed to like 173.425 0.4210 410 these are the provisions that create the strict Financial separation that Missouri is reserving its rights under other sources of law like eminent domain or search and seizure and it's not actually limiting its ability to obtain assets in that way I understand my friend who have conceded that actually Missouri would have to change its law and change the structure of mohila if it wanted to have any direct access to mohela's assets and that makes sense because these other Provisions that I just pointed you to are very clear that there is absolute Financial separation between the state and Mohela you asked as well about control over mohila which my friends has emphasized several times that's actually one of the relevant questions under the arm of the state Doctrine whether you could direct the authority in any way I'd point to Justice Kavanaugh's decision in the DC circuit in the Puerto Rico Ports Authority case there it was significant that you could direct the the authority to Sue and here that's obviously lacking and the state hasn't attempted to do that my friend several times brought up the Cherry cotton mill and Erickson cases in Cherry cotton mill there was an Express statutory right of the United States to tax offsets and the court was interpreting that statutory language and determined that the United States had its own interest in the statutory right and further emphasized that with respect to that particular public corporation and I'm reading from the language of the Court's opinion that for the public corporation it's profits if any go to the government its losses the government must bear there wasn't the financial separation in that case that exists here and there was a distinct statutory right on behalf of the United States Ericsson is even further afield it wasn't a case about standing at all and there the United States had a contract right that the instrumentality had entered into as an agent of the federal government the instrumentality was itself a plaintiff in that case and there was no article 3 issue in the case finally I'll focus on the contributions to the Lewis and Clark Discovery Fund this is the secondary argument as it relates to Mohela there are huge factual deficiencies in trying to premise standing on that basis as we've explained they haven't been able to bring forward allegations that would substantiate the assertive Financial impacts on mojila and certainly haven't established that that will be the likely cause of any default to a fund that hasn't been paid for the last 15 years but there's also a more fundamental legal problem with their Theory it has no logical stopping point there's nothing for example that would prevent anyone who's owed a debt to say that suddenly they can have standing to challenge a regulation that doesn't affect them in any way because it might affect the debtor who then will be unable to make good on that on that liability and there is no precedent in this Court's article 3 Doctrine to support that kind of broad expansion of article 3 standing here turning to the merits I want to pick up on the colloquies that my friend was having about the meaning of the term waiver modify and if I understand the gloss that he's putting on that language I don't think that there would be any room to Grant any kind of Heroes act relief whatsoever he says that there was no waiver or modification here but there was the secretary took the provisions that deal with discharge and cancellation and he waived the existing eligibility requirements and modified those Provisions to add an additional basis for Relief this is how secretaries across administrations have implemented the heroes act for example with deferment the secretary in Prior uses of the heroes act took the provisions that exist for deferment and waived the existing eligibility requirements and then granted additional deferment in line with the National Emergency that fits with the plain language of the statute and to suggest that that automatically creates a brand new program would leave very little room for the heroes act to operate at all my friend is getting it exactly backwards the fact fact that there are already statutory Provisions for things like deferment and forbearance and discharge demonstrates that Congress could foresee that all of those are ways that you grant Financial relief to student loan borrowers and in the context of a statute like this one that is centrally focused on ensuring that the secretary can act in unforeseen circumstances outside the existing scope of those Provisions Congress directed that the secretary has the authority to waive or modify in order to expand eligibility for those forms of relief so we'd ask the court to reject the state's arguments here thank you Council the case is submitted and will take a five-minute break foreign foreign argument will continue argument in case 22 535 Department of Education versus brown welcome back thank you Mr chief justice and may it please the court across the board Brown and Taylor's arguments in this case run counter to precedent and principle I'm standing respondents assertive injury is a complete mismatch for the relief they seek they claim to want greater loan forgiveness than the plan provides but they ask this court to hold that the heroes act doesn't authorize loan forgiveness at all but when on that theory would mean that no one could get any Heroes act relief not brown who would get nothing for herself not Taylor who would lose ten thousand dollars and not any of the millions of borrowers who need this critical relief respondents lack standing to seek that result parties cannot go to court to make themselves and everyone else worse off to get around that problem Brown and Taylor gesture at the idea that if the secretary can't act under the heroes act he might consider making an entirely different decision to Grant debt relief under the Education Act but on the merits respondents are broadly attacking the whole idea of providing loan forgiveness under any executive action they never explain why they think the secretary could provide broader relief to even more borrowers under the Education Act and in any event this court has never endorsed that kind of circuitous route to standing a plaintiff who isn't injured by agency action can't establish standing by speculating that invalidating that that action might prompt the agency to take an entirely different action under a different statute if the court reaches the merits it should reject respondents claim they argue the plan is unlawful because the secretary didn't use certain rulemaking procedures but Congress specifically Exempted the secretary from following those procedures when he issues waivers and modifications under the heroes act respondents procedural claim fails in light of that clear statutory exemption I welcome the Court's questions are there any uh instances in which you would have procedural standing so I think that if they wanted to argue that the secretary should have reconsidered his decision under the heroes act to Grant broader relief then it's possible that they could have raised both a procedural claim and a substantive claim because at that point their injury would be redressible they would be saying that the secretary Drew arbitrary lines that the plan should be expanded to include them and to provide relief to them and that would be a very straightforward route to making the arguments if what they really want is loan forgiveness but instead their whole argument here is that the secretary can't give them or anyone else relief under the heroes act and when you look at it that way there is no case that we've been able to find and we've really tried to boil the oceans here that could plausibly support that theory of procedural injury it would blow open the doors to asserting article 3 injury when you are not directly affected by an agency action and by your own lights you can't stand to benefit from any ruling on that agency action merely because you think that if you can block it you could the the agency might reach out and look for some other source of authority to regulate and make a new action that this action has nothing to do with their right if they thought it was permissible to seek relief under the Education Act correct that's correct that's it it's a totally different source of authority if they want relief under the Education Act there are Provisions where they can file a petition for rulemaking and ask for that relief right now and it's not as though these are mutually exclusive sources of authority the Education Act is is not directed to National emergencies it's not uh it's an independent source of authority here unlike the heroes act which is the action they're challenging that's specifically focused on this agency this National emergency situation I understand your argument on standing and I know this isn't directly on point but when I saw it it's sort of like the uh equal protection cases you know where discrimination between men and women on the level of Pensions and the the women the widows get more and the widowers get less and the challenges brought and the argument was well if you win we're going to take the excess away from the the widows so you're not going to get anything so you don't have standing um why is that case I appreciate the way in which it's different but why isn't that at least some Authority on which they can rely I think that the equal protection cases are fundamentally different because there your injury is your complaint of unequal treatment and so whether you level up or level down your injury is being redressed you're no longer being subject to unequal treatment and instead everyone is being subject to the same treatment but this case stands in a very different posture because here their argument is our injury is we're not getting loan forgiveness and the the relief they're seeking which is a declaration that the heroes act as an authorize loan forgiveness in the first place doesn't redress that injury one bit it just puts it into stone right but I mean without looking after the case yes you could lower it or raise it but that's an uncertainty that had did we did not we decided that that did not affect their right to bring the action because it may be changed in a particular way and I suppose their argument would be that you know they are injured but by not being participating in the program and if the program is struck down in its current form it may be changed in a particular way that would help them so I think that there is though a complete disconnect between the claim of injury and it's true that in the equal protection context you don't know ex-ante what the remedy is going to be but the court is determined that doesn't affect standing because either way no matter what remedy occurs based on the equal protection injury it's going to fix the nature of the harm of providing unequal treatment and here the the only certainty is that if they Prevail on their claims it's going to make it harder to provide them or anyone else with debt relief their suggestion here that the secretary wholly lacks this Authority Under the heroes act and their assertion of arguments to support that claim that broadly attacked this whole concept of loan forgiveness I think demonstrate that we're far afield from the equal protection case law can I just ask you I'd understood them to be complaining about the procedures am I completely off base here you suggested that they're complaining about not getting enough loan forgiveness or something maybe I misheard you but um I thought they were trying to bring a procedural claim um and that the reason why this was problematic was because the procedures that they are saying are lacking are actually under the other source of authority that they that if we looked at the source of authority that the secretary used in this scenario it doesn't guarantee them those procedures so you can't really complain about not getting procedures in another that under another statute that was not invoked in in this situation am I wrong about this no and I understand the confusion because the theory here um is a little convoluted and so let me try to unpack it they are asserting a procedural injury um but what they're saying is we want an opportunity to comment on loan forgiveness so it'll include us as well our underlying injury is that without having a chance to comment on the secretary's use of Authority Under the heroes act we didn't get a chance to advocate for us to be included in the plan the problem with that procedural theory of harm is that by their own arguments in the case the secretary couldn't make a different decision he couldn't go back to the drawing board and think about it and decide yes I'm going to expand the plan under the heroes act to provide these borrowers with relief too so they aren't able to assert that kind of redressibility for an assertive procedural injury under the heroes act and that's because there aren't negotiated procedures under the heroes Act Right the statutory text is very clear so even if you were to get to it on the merits they haven't actually been deprived of any procedural rights the heroes act specifies that waivers and modifications issued under the heroes act are exempt from notice and comment but I think because of the fundamental flaw with their theory of injury and the fact that it couldn't be redressed by their own arguments in this case they've now brought up this Education Act idea they haven't been deprived of any procedural rights under the Education Act you know procedural rights derive from specific agency decisions under agency Authority so it's not as though they have some procedural right in The Ether to just comment on the concept of loan forgiveness writ large instead under the heroes act as we've just discussed there isn't a notice and comment procedural right and under the Education Act no decision has been made and so they haven't been deprived of any procedure associated with it so what they would need I suppose is certainty that if the if we um if we nullify the authority of the secretary to do what it did in the heroes act that they would necessarily be um a loan forgiveness program under the hea yes and they can't make anything like that showing here it's total speculation on their part to suggest that if the secretary is blocked from taking this action maybe he'll look for a different source of authority and issue an entirely different program under that source of authority and I think that that shows that their their theory is unduly speculative here I think it's important to recognize as well why they're pressing this claim and the upshot of this Theory the reason they're asking the court to go down this road is so that they can effectively raise a substantive challenge to the heroes act that was actually the only claim on which they prevailed below the district court in this case rejected their assertions of procedural harm and instead went on to resolve a stand-alone substantive challenge to the secretary's plan and said that it was unlawful under the heroes act but they've now entirely abandoned that basis for prevailing below they say that the district court was wrong to consider that they're not defending that ruling and it makes good sense because they obviously lack standing to maintain a substantive stand-alone challenge to the heroes act since that wouldn't do anything to redress their harm but instead just ensure that they aren't going to get any debt relief by raising this procedural argument though they're effectively asking for an opportunity to raise the very same substantive claim that they lack standing to pursue through the guise of a procedural challenge to the ACT and there is no apparent reason for the court to allow that kind of Gambit and to take what is actually a substantive challenge based on a generalized grievance with how the executive is administering the law and alter the ordinary article 3 standards to allow a plaintiff to revisit that conclusion through a procedural mechanism General I I appreciate your standing arguments and um they've been laid out very clearly here an interesting feature of this particular case as you well know is that the court entered a universal decree we've chatted about this in Prior case we have indeed Justice and I I just wanted to give you another chance to talk about Universal vacature with some of my friends here if you want it and if you don't that's fine I will always take that opportunity we did argue below that the district court didn't have authority to enter Universal vacator in this case and you know the the language that courts have relied upon in thinking that this is a permissible remedy under the APA for for for a handful of plaintiffs yes yes for two individual Borrowers is the set aside language but as we've explained that language which comes from section 706 of the APA if you look back and Trace through what Congress was doing when it enacted the APA was not meant to be the remedial provision of the APA instead that comes from section 703 which tells you to either look at a special statutory review provision if one exists and sometimes there are social statutory review Provisions that say you can operate directly on the agency action at issue but in the absence of that then it's the traditional Equitable remedies that predated the APA and there was nothing like this Universal vacator remedy then which would take you far beyond party specific relief I mean talk about ways in which courts can interfere with the processes of government through two individuals in one state who don't like the program can seek and obtain a universal relief barring it for anybody anywhere that's right for millions of Americans they've been able on the basis of this claim to hold up that critical relief but of course if they actually had standing to do that then um you know they could bring such a claim and I guess your position which is not in this case because we don't have a question presented about Universal vacator but your position is that what the court doesn't have the ability to issue an injunction that would prevent this plan from operating just because it was two people who brought the claim originally well to be clear we're not suggesting that injunctions would be off the table but those two would have to be targeted to party specific relief how would it be targeted in a plan such as this so for example if in fact they had standing to pursue a procedural right then the secretary would be enjoined to provide them the process that's due and to take into account there views in determining whether to expand eligibility under the program you have nothing about that Justice Jackson would in any way call into question whether other people should get this I understand but if would you have the same reaction to Universal vacator if the claim on the table was about their particular entitlement to getting let's say more money under this plan um would you would would we be in a world if you were right about Universal vacator in which every single borrower in the country would have to bring a lawsuit in order to vindicate a right that the court would say these two people have well I think in a situation it depends a little bit on which court you're talking about obviously this court has the authority to resolve issues like that for the entire nation so if a question makes its way to this court then it wouldn't be necessary to have follow-on suits in the absence of that then yes our argument is you should provide party specific relief that the the traditional concepts of remedial Authority Under article 3 were limited in that way and that to instead allow single district courts throughout the nation to claim the power to put a critical policy on hold is out of accordion the last time we did this every member many former members of the DC I'd like to okay I'd like to hear about the merits of this case I want to come back to some of the claims that um uh both sets of respondents here have in common dealing with what we've called the arbitrary and capricious aspects of the case and as I understand it the memorandum really talks about two things it talks about forbearance and it talks about sort of Economics slash covet conditions forbearance as a kind of separate thing that people who have been granted forbearance for long periods of time are more likely uh to go into default or become delinquent in their payments um and I guess I wonder is that about covid or is that just about something that happens when you excuse loan payments for a long period of time and how it is that that gets to be converted into an emergency covid rationale and then on uh the economic considerations and I think it was Justice Barrett who talked about this a little it seems you know a real mixture of covet and non-coveted related things and of course this is how the economy works that covid interacts with other features of the economy to produce certain economic conditions but again I'm wondering whether you know there was more of an obligation on the part of the secretary to isolate how covid was affecting these Borrowers of course and I'll take each of those considerations in turn I'll start with your questions about forbearance and I want to be really clear because I think my friends have confused the issue about this a little bit that the secretary wasn't finding that forbearance itself had caused the economic harm to borrowers or that it was the root cause of why they needed additional relief instead the secretary analyzed the historical data regarding forbearance as a data point and understanding that forbearance is not always a complete solution to the underlying economic harm caused by the National Emergency so here there's no doubt that forbearance has provided very powerful and critical support to borrowers over the life of the covid pandemic but the secretary found that once forbearance policy lifts millions and millions of borrowers are going to be worse off with respect to their ability to pay because of covid the forbearance policy hasn't fixed the underlying economic harm of the of the pandemic and the emergency so to the extent that there's a bootstrapping concern here I just want to push back forcefully on that I think that the secretary's decision memoranda makes clear that sometimes additional relief is necessary not because of forbearance but in spite of forbearance to turn to your question about the various causes or influences of economic harm here it's of course true that I can't make a representation that the harms the borrowers are facing are solely due to covid-19 but I think that it would be an impossible burden to place on the secretary to suggest that he needs to isolate and identify just one economic factor or Force that's causing that kind of distress for borrowers you know our our economy is very complex and there are often multiple factors and forces at play but the secretary here found and I don't think that anyone could reasonably dispute that but for covid borrowers would not be in this situation of facing severe Financial harms and the very real risk that they'll have to go into default or delinquency when they start repaying their student loans so I think to the extent that there's concern here about how the standard could operate at the very least the secretary made the requisite findings that these are Financial harms that derive directly from and are a but for result of the coveted pandemic Council on I'm sure I'm misreading the graphs on I'm looking at 247 248 but it didn't half the borrowers say they would not have any trouble paying their loans without regard to the forgiveness program so it varies based on income bracket and yes it's true that that in certain income brackets the data I think reflected that you know 51 percent of borrowers expected that they would be unable to pay their student loans that wasn't the only SEC that only dated the secretary consulted though in those same studies that he referenced there was uh General data about levels of financial insecurity and overwhelming majorities of borrowers expressed huge financial insecurity concerns about their ability to make ends meet going 10 years into the future I think one of the important things to recognize again as I had mentioned in the last argument is that it's not necessary for the secretary to make a finding that each and every borrower who really receives relief under this plan would have necessarily gone into default or delinquency without it of course not but I mean it does kind of factor into the consideration to clean a situation where you don't have notice and comment uh proceedings that maybe uh again that's something that a broader representation of national interests in Congress would take into account rather than what the uh the secretary in a particular case who's weighing a lot of options and considerations as well would take into account I mean if more than half the people say they don't need this relief extending relief to that breadth certainly raises questions so let me be clear that I think there is an Avenue to address those kinds of questions with over breadth I don't think that it's a function of statutory interpretation though that would be applications of the statute to particular fact patterns and whether the secretary could justify the lines he drew and the level of relief he decided was necessary and here's secretary secretary Cardona explained that huge numbers of borrowers were going to go into default and delinquency and it's not as though he could easily segregate and say here are the 50 percent where I know for sure it will happen and here are the 50 percent where it won't if he could make that kind of determination it might provide a basis to determine that he should have drawn different lines but we don't have anything like that here and I would just Point again to the forbearance policy you know that has applied across the board to every single student loan borrower with a federally held loan for the past three years but I think that both secretaries acted entirely within the domain of the heroes act and recognizing that that kind of broad class-wide relief was necessary due to the particular exigencies of this emergency thank you um since we're dealing uh in a case with individual borrowers or would-be borrowers I think it appropriate to consider some of the fairness arguments you know you have two situations both two kids come out of high school they can't afford College one takes a loan and the other says well I'm going to you know try my hand at setting up a lawn care service that he takes out a bank loan uh for that at the end of four years we know statistically that the person with the college degree is going to do significantly financially better over the course of life than the person without um and then Along Comes the government and tells that person you don't have to pay your loan nobody's telling the person who is trying to set up the lawn service business that he doesn't have to pay his loan he still does even though his tax dollars are going to support the Forgiveness of the loan uh for the the college graduate who's not going to make a lot more than him over the course of his lifetime now it seems to me you may have views on fairness of that and they don't count I may have views on the fairness of that and mine don't count we'd like to usually leave situations of that sort when you're talking about spending the government's money which is the taxpayers money to the people in charge of the money which is Congress now why isn't that a factor that should enter into our consideration under the major questions Doctrine again where we look at things a little more strictly than we might otherwise when we're talking about statutory grants of authority to make sure that this is something that Congress would have contemplated so my reaction to that Mr chief justice is that Congress did take those kinds of considerations into account and specifically providing this authority to the secretary I think that the same kinds of arguments well it's just circular you're you're it sort of you know begs the question to say that first I don't see any evidence that they took the the person who's trying to start the lawn service because he can't afford College I don't see any evidence that they took him into account um but if that's what Congress would need to take into account and show then it can't legislate it can't provide the executive with pre-authorization to take action into an emergency Congress can't look ahead to the Future and say okay in the year 2020 when an unprecedented Global pandemic hits we've decided that the lawn care professional should you know not benefit from this program but the students you're relying on you're relying on an interpretation of the statutory Authority uh to say that that's implementing congress's intent to do that in a pandemic that they couldn't have foreseen we do think no they would have foreseen the idea when they said a modifier waive that that would mean waving the whole liability for 40 million Americans at the cost of half a trillion dollars that they foresee they foresaw that enough to allow the secretary to act without any Express Congressional Authority any more Express Congressional Authority than the authority you rely on well let me break it part into two different components because I think there's a first order question of whether Congress could have foreseen the possibility of debt discharge at all and I think the answer to that has to be yes that was a well-established form of relief that you can provide to borrowers in in hardship situations as I previously mentioned it's one of the core Provisions in the title IV and Congress in specifically enacting a statute that's aimed at this problem of not leaving borrowers worse off in reaction to a National Emergency clearly understood that using we're just going well so that's not a good question I recognize I'm not faulting you for repeating your answer since I think I probably repeated my question but you're just saying it's the same argument about what modify and wave means it is as a statutory matter on the categorical argument about that discharge now you have asked me several questions about the scope of this program and let me try to be responsive to that I recognize that this is a big program but that's indirect reaction to the covid-19 pandemic which itself was a really big problem problem there hasn't been a National Emergency like this in the time that the heroes act has been on the books that's affected this many borrowers and so I think it's not surprising to see in response to this once in a century pandemic the kind of relief that the secretaries have offered here the forbearance policy that has itself cost 150 billion dollars and now the Sloan forgiveness program to the extent that you have concerns about the scope and size of the program though I would say that if I can get you to agree with me and maybe I can't on this point that the categorical debt discharge argument doesn't work as a statutory matter then I think the right place to look to house those concerns is an arbitrary and capricious review we think here that the secretary Drew reasonable lines in crafting the scope of relief but if you disagree or if you think you should have taken different interests into account that would be a basis to reverse him on arbitrary and capricious grounds not to distort the plain meaning of the heroes Act thank you just Justice Alito um well the the secretary did what he did so presumably he had and has a view about the fairness question of the Chief Justice pose to you what is that view so the secretary understood the statutory Authority and mandate here to focus on whether this National Emergency was going to leave borrowers worse off because of the pandemic this is Congress deciding that the government should be in a position to provide benefits solely within the context of Student Loan program and I don't think there's any part of the statutory analysis this is congress's Judgment the borrowers should be able to get relief if the secretary makes these determinations with no suggestion that the relief should turn on or off based on the possible impacts on those outside the Student Loan program Congress obviously knew when it was giving this authority to take care of borrowers who are otherwise going to be worse off that that might have otherwise impacts outside the program but it wanted to make sure the secretary could provide relief to borrowers was the secretary legally obligated to do what he did no it's not required to provide relief so if he decided to do what he did and must have had reasons for uh for doing it and some of them are on the record some may not be but the secretary if you're right then the secretary presumably could do more and therefore I think it's a fair question to say what is your clients view about the fairness question that some people have posed and that was reiterated for you by the the Chief Justice the view of the department is that this why is it warranted why is it fair if it was just if you didn't have to do it why is it an answer to say that it was warranted maybe it was warranted but why was it done I guess you don't want to answer the question it was fair because in the absence of this relief it's Undisputed that there are going to be millions of student loan borrowers who are not going to be able to pay their their student loans and the heroes Act was specifically designed for this situation this is Congress telling the secretary you don't have to let that happen and when we have this kind of a pandemic that requires this kind of relief I think that the heroes Act is operating right within its domain I'll try one more time why was it fair to the people who didn't get arguably comparable relief not maybe that their interests were outweighed by the interests of those who were benefited or they were somehow less deserving of uh solicitude but what is your answer to that question my answer to that question is that Congress has already made the Judgment that when there is a National Emergency that affects borrowers in this way the secretary can provide relief and you could make this critique of every prior exercise of Heroes act Authority there too you could say well that only benefits the specific enumerated affected individuals but it's Congress who Define those individuals and the secretary acted properly here in giving them relief bottom line answer to be everybody suffered in the pandemic but different people got different benefits because they qualified under different programs correct that's right there's been enormous relationship there's inherent unfairness in society because we're not a society of unlimited resources every law has people who Encompass it or people outside it correct that's correct and that's not an issue of fairness it's an issue of what the law protects or doesn't yes Justice Kagan um I mean Congress passed a statute that dealt with loan repayment for colleges and it didn't pass a statute that dealt with loan repayment for lawn businesses and so Congress made a choice and that may have been the right choice or it may have been the wrong choice but that's congress's choice and you're saying that the secretary implemented his powers under congress's Choice which gave him authority over loan repayment it definitely did not give him authority over loans for non-care that's correct the secretary would have no authority to act outside the Student Loan program the heroes act as specifically designed only to empower the secretary with respect to that portfolio maybe as Justice Sotomayor said Congress gave a different kind of authority to a different secretary with respect to a different set of activities when an emergency struck is that correct yes Justice Gorsuch I just wanted to make sure I understood your position with respect to some of the gnarly language in this statute which is uh waiver modify uh affected individuals to ensure they're not placed in a worse position financially because of the covet crisis you'd agree that doesn't authorize the secretary to place persons in a better position than they were because of the covet crisis so I agree that the purpose is to ensure that they're not worse off but I would disagree in so far as it's clear that he can provide class-wide relief so if it turns out at the end of the day that some individuals are getting relief who it turns out wouldn't have needed it Congress tolerated that and in fact encouraged the secretary to share on the side this statute is not just authorizing the secretary to place people in the same position that they were prior to an emergency but to allow the secretary to place persons in a better position than they were prior to the emergence no I'm sorry let me try to clarify his purpose has to be to ensure that they're not left worse off if the effect is that some individuals in the class receive relief who wouldn't otherwise need it that doesn't mean that his plan is invalid but if I could respond to your question about better off worse off let me just I'm sorry let me pose a different question um so some persons can be better off is your position I guess how many is my next question right let's say two people in Missouri okay all right they're better off fine but what if it's 90 of the class just hypothetically that could could the secretary do that under this statute so I think the right way to analyze that would be under arbitrary and capricious review because as I've just explained we think the statute tolerates some over breadth and so at that point you would want to look at the secretary's justification for his action it sounds to me like that could be unreasonable that maybe he wouldn't be able to justify that particular line drawing choice because it would be so extensive relief that isn't actually necessary but one of the things you'd want to look at is whether there was a way to tailor it whether there was a way to segregate the people who actually needed their belief or not I understand that and just in case you think this plan does that Justice courses no no it does not I'm asking a hypothetical and and I understand your point you direct us to arbitrary and capricious review with respect to the fairness question that the Chief Justice posed would that would that would you direct us as well to maybe State Farm for example where the secretary has to weigh not just the benefits to the person's uh he's acting to favor but also the cost to others I think that that is a more natural way to analyze those issues I should emphasize because we're in this case individual borrowers didn't raise the State Farm argument so they're not making these fairness allegations I I hear you but you'd agree that that would be a relevant consideration at some stage in a Court's analysis of of of the secretary's action I don't think that the secretary could be faulted for not considering the interests of non-student loan borrowers because I don't think that's one of the relevant interests that Congress expected him to take into account under this Authority as we've been sure about laws all the time it's just irrelevant yes I think that that his charge under the heroes Act is to determine whether student loan borrowers need this relief I appreciate thank you that's clarifying thank you justice Kavanaugh pick up on the chief justices and Justice alito's questions if we're thinking about how to interpret the statute and we're trying to think about the context of the statute in interpreting it the word wave in isolation one thing the word but it doesn't use cancellation so that cuts the other way I take your response to that but then you're thinking about contextually how it all works it fits together the fact that there will be um winners and losers Big Winners and big losers uh relatively speaking if the executive branch has this kind of authority uh people who didn't go to college as the Chief Justice said or people who had just paid who had paid off their loans who say what they did to pay off their loans and they're getting no relief because of the timing of the situation and if Congress were doing this Congress could and would no doubt try to would hear about all that and Factor all that in in a way that a secretary could not especially without a notice and comment uh should any of that factor into how we think about whether to give a broad reading to wave or a narrower reading to wave given the context no I don't think that that should factor into how to interpret the statute I think instead as this court usually does it needs to consider that text on its own terms and I don't see any way to read the provision to waive or modify any title IV provision to mean but only do it a little bit only in response to minor emergencies it would actually be perverse to suggest that when there's a big emergency that might necessitate broader relief the secretary is more disabled from acting instead that's the language in the statute that's meant to empower the secretary and to ensure that he has whatever tools are necessary to fulfill the statutory purpose to ensure that borrowers are not left horse off with respect to these concerns about whether there's room to take into account other interests Beyond student loan borrowers there are Avenues to go to Congress for additional relief to implement other programs there's been unprecedented levels of coveted pandemic Aid as I mentioned and I think to suggest that the secretary here should have told borrowers who he had determined were at massive risk of default and delinquent in record numbers that he wasn't going to use the Authority Under the heroes act that's tailor-made to prevent that result would have been an irresponsible thing to do so again I think that this really comes down to congress's judgment that there should be authority to provide the benefit within the context of this program obviously there are additional authorities and benefits that can be provided under other programs separate question the student loan issue is a major public policy issue without regard to covid to begin with obviously and how to deal with that and the burdens it's imposing on people after they get out of college who have massive student loans to pay back obviously a huge public policy issue that was being considered before kovich so that factor in to how we think about this in other words this is something that was on the table being discussed being debated and then all of a sudden it's this public policy idea is um attached that was being proposed and pursued before the pandemics attached to pandemic legislation matter at all I think that it's really hard to think about how that should work as a matter of statutory interpretation and specifically what kind of Burden this court would be putting on Congress if it goes down that road if you put yourself back in the shoes of the 2003 Congress it couldn't necessarily anticipate exactly what would be the subjects of political discussion and debate at the time that the covid National Emergency pandemic hit and so going down the road of suggesting the meaning of the statute could change or should be interpreted in a textual way because of current conditions I think would basically disable Congress from being able to take the kind of action we have here of trying to ensure that the executive can act quickly with pre-authorization in an emergency to forestall massive student loan default last question I can't resist on Justice course such as earlier questions um if if we're party specific relief and it went up to the court of appeals in the court of and you had sought an emergency injunction in the court of appeals and the court appeals ruled against the government on that would you then follow that in that circuit or not I think it's a practical matter we generally do follow that in the circuit I want to be careful here because I it might not in the future well you can admit it our general practice is yes we we treat it as binding within the relevant circuit but again the concern here is that actually it's imposing on us an obligation to follow it throughout the nation and if you came up to this court in an emergency application and we said you did not have a likelihood of success I think you said earlier you would follow that why would you follow that we recognize that this court has authority to resolve these issues for the nation even though they're only two parties in the case you would say and we're going to follow it for everyone else and not force every other offense affected individual to come to court you think every future Administration will have that same approach but likewise and decisions in a given area rule for the nation thank you justice Barrett ask you about Universal vacator I just want to ask you one thing about the statutory language on waiver modify that I wonder whether it's an indication of the scope of waiver modify so the secretary has authority to waive or modify to ensure that affected individuals are not placed in a worse position financially in relation to that financial assistance so in relation to their debt so you agree right that we're not talking about a worse financial position generally we're just talking about in relationship to the debt that's correct that too often collapse obviously because if you are distressed financially it might mean that you're having trouble paying your mortgage or paying your rent buying your groceries and paying your debt but yes the the function of the heroes act focuses on your position with respect to your ability to repay your student loans so seems to me that that language in relation to that financial assistance suggests that the relationship would continue but the waiver modification here severed the relationship to the debt so that it no longer exists so why would that be consistent I mean doesn't the statutory language in relation to that financial assistance presuppose an ongoing relationship that might be modified but not completely ended no I think that that would be reading in limitations that can't be gleaned from the text what we understand the statute to be focusing on and specifically looking at the subparagraph here that justified this act making sure that student loan borrowers are not worse off with respect to their loans that functions as a matter of their probability of being able to actually make their payments and this actually relates to some of the questions that Justice Gorsuch was asking about better off worse off you know imagine a student loan borrower for example who before the pandemic had her Affairs entirely in order she had a zero percent chance of defaulting on that debt but then covet hit her life has been disrupted her job was disrupted inflation is at record levels she's having trouble making ends meet and now she has a much higher likelihood of of not being able to pay her student loans in that situation Heroes act relief if it were to operate even to completely eliminate her debt so she doesn't have an ongoing relationship with it it would just restore her to her pre-pandemic relation in so far is her risk of default and and delinquency she was zero percent before and now she'll be zero percent after and so it doesn't inherently make her better off within the meaning of the statute thank you justice Jackson just wanted to quickly Circle back to the fairness point I guess I'm wondering whether or not the same fairness issue would arise with respect to any federal benefit program so I'm thinking about um the fact that as a result of covid we had massive infusions of money given to various companies organizations clearly authorized because Congress said do it I'm wondering whether it's that would be unfair to people who didn't own a company or somebody who did not have um you know a a non-profit and wasn't getting that money I just don't know how far we can go with this notion of to the extent that the government is providing much needed assistance to people in an emergency it's going to be unfair to those who don't get the same benefit yes that's exactly right and what I would say is that is inherently an aspect of what Congress authorized and the heroes act as well it specifically thought about this situation what to do about student loan borrowers who are impacted by a National Emergency who might then end up in a worse position with respect to their ability to repay and Congress made the Judgment you can give them relief and with any benefits program there are going to be others outside the context of that particular program who aren't getting the benefit but I don't see how that could possibly provide a basis to just say that you're paralyzed in doing what Congress intended to ensure that the class they were focused on gets the relief they need thank you General Mr Connolly Mr chief justice and may please the court this case turns on the same issue as Nebraska versus Biden whether the heroes act authorizes the debt forgiveness program it does not as this court has already heard I'd like to focus here on three issues specific to this case first the heroes Act is the secretary's only excuse for not adopting the program through negotiated rulemaking and notice and comment if that act does not apply there is no dispute that the program is procedurally improper second on standing the government makes one argument that if respondents Prevail the secretary won't provide debt forgiveness to them under the heroes act but that isn't the proper inquiry respondents need only show that there is some possibility that the relief they seek will prompt the secretary to forgive their debts on that question there is no debate debt forgiveness is a top priority of this Administration the parties agree that the secretary can forgive debts Under The Higher Education Act and the secretary has never denied that he may follow the proper procedures and forgive respondents debts after his current program is declared unlawful finally on the merits Congress did not authorize the secretary to create a 400 billion dollar debt forgiveness program behind closed doors with no public involvement the whole point of negotiated rulemaking and notice in comment is that the individuals most affected by student loan regulations like the respondents must have a meaningful voice in the regulatory process but here the respondents were deprived of their procedural rights and their finances suffered Brown got nothing and Taylor received only ten thousand dollars even though High income individuals making more than five times as much got twenty thousand dollars the law requires that the secretary give respondents an opportunity to be heard the Judgment below should be Affirmed Mr Connolly uh has this court ever held that uh uh the notice and comment provisions of the APA can establish uh enough for standing uh in a case like this yeah I would point to uh summers in summers uh this Court held in an environmental organization had standing to challenge the forest Services approval of the Burnt Ridge project and because the forest service approved at without going through notice and comment and that environmental organization had standing because there was some possibility that if they went through the proper process that the forest service would change its mind and wouldn't approve the Burnt Ridge project and I think it's the same thing here if the secretary goes to the proper process there is some and does negotiated rulemaking and notice and comment there's some possibility that he will change his mind and forgive our debt were the procedures in summers applied in summers were they implied I think it was applied oh applied uh in that case yes the court said the court found um it was drawing a distinction between uh why they would have had standing in one place and wouldn't have in another and the reason that the group ultimately didn't have standing is because they had settled it but the court said that if if Burnt Ridge had still been on the table that they would have had standing injury rely on the assumption that if the heroes act isn't there or if there's a problem with the heroes act the administration would necessarily have done the same thing under the hea no I don't think so in fact I think the program will look quite different once it does go through negotiable making and notice in common I guess I'm asking you you seem to be assuming that if you get the relief of invalidation of the action under the heroes Act that the administration would necessarily move forward because you said it was a top priority of this Administration that they would necessarily do the same thing or a similar thing meaning provide debt relief to people under the other legal Avenue and I I mean I can imagine a world if you think of a hypothetical in which the secretary believes that they that the department only has Authority Under the heroes act here we are in the midst of a pandemic the intention of the department is to provide this relief in the context of the emergency and that if we don't have an emergency and then if we're not in this circumstance and we don't see the heroes act there then they would not move forward so I think you kind of have to convince us that the administration would have provided this sort of debt relief under the authority you point to that you say has the procedures that were not provided uh two responses I think the best evidence for this is the nature of the program the program applies to 95 of all borrowers it's not remotely tailored to individuals who are suffering from the pandemic and the reason is because this is a program that's just designed to help people who are in need of debt relief and on the authority point the parties are in agreement that they have the power to do this under sex under the hea and the secretary has never come up here and denied that they won't do go through the exact same process which they should have done in the first place once this program is declared except and my biggest problem is you've shown me nothing to suggest that if they'd have to or will go under hea that they're going to deprive you or due process they're going to let you be heard what Justice Jackson was getting to is you could be heard and not accepted I mean your position could be rejected then we'd have to look at that program and decide if that program fits the hea requirements and the arbitrary in a capricious standard but there is no injury that you're suffering unless you get a speculative new plan that goes into effect you have no proof that if a speculative new plan does arise under the hea that you're going to be deprived of notice in common and you certainly can't say if they rule against that interest and you've had notice and an opportunity to be heard that it was arbitrary and capricious so I'm at a loss as to how you have standing because there is no notice and procedure required under the heroes Act the only way you can win is if you strike down this program completely and that means that you don't get an opportunity to be heard but nobody else does either the secretary created a 400 billion dollar deficitness program now you're arguing what the state's arguing I'm asking about you sure you as a student once the the heroes act your ten thousand dollar student yeah is going to get nothing he's not going to get twenty thousand you strike it down he gets nothing neither does your person who wants something this is so totally illogical to me that you come into court to say I want more I'm going to file a suit to get more but I know I'm going to get nothing so the secretary created a a massive debt forgiveness program and he says that he's doing it one time and one time only he said this in his brief and his declarations on its website and in the reply brief he said he took constant account and so if we miss this shot we will never have another opportunity it seems to hurt you to sit to suggest that I thought your argument was if we strike down this program then we know the secretary is going to try again under the hea and that's the relief that we are seeking the procedures that exist under that program so if he's done if we strike it down isn't just a Sotomayor right that you're in a much worse position by bringing this lawsuit we are if he completes the program but we are asking we are trying to stop this program so that it can go through the proper process so that we have an opportunity to comment and urge the secretary to forgive our debts right now Miss Brown has 17 thousand dollars and student loan debts and she's not getting a dime of debt forgiveness and if this had gone through the proper process there's some possibility that we would have had our debts forgiven and if in Luhan what Luhan talks about is this is why procedural rights are special because the agency can always come in and say you know what we would have done the exact same thing even if we you would have had that process your injuries aren't redressable they're speculative but that's why procedural rights are are special do you rely um to what extent to rely on the fact that your clients include an existing student loan borrower and that you have a little different than one that is not in other words it's not speculative in the question of how would that person be remedied but it is another borrower you're asking for notice and comment and during that period if it's granted that would uh it would entitle you to raise you know why the limit whatever the credit limit is that should should be changed is that uh I mean I think your challenges is to make that sufficiently particularized and non-speculative I mean the the problem with standing jurisprudence for something that looks for something concrete and particularized it's also very academic you know a dollar of injury and you're in uh hundreds of millions that they can't trace directly to the agency action and and you're not so what is it that makes the interest of your client who has a seventeen thousand dollar loan uh how is that sufficiently concrete and particularized in the context of something that the government would address if it can't do what it's doing now sure so she I I think it is critical that we're we're here representing borrowers she has uh student loan debt and it's not being repaid and that those are concrete interests at stake so this is not someone off the street who is upset that his or her taxes are going to go up that that there's no question that would be a that wouldn't be a that'd be a generalized grievance but here if you look at the scope and the purpose of the program it's to help student loan borrowers but instead of doing this negotiated we're making a notice in comment they did they carved up the lines and they did it all in secret I I'd point the court to page 31 of uh the government's reply brief in that on that page the government said that it had extensive discussions with banks and ultimately decided not to forgive ffel loans that's the type of thing that should be happening honestly aren't you really fighting Congress on this one the heroes act specifically says no notice and comment and no negotiated rulemaking specifically says there's going to be an emergency so we're waiving those procedural requirements so you know you might think that Congress made a wrong call there but that's congress's call because when when Congress wrote the heroes act the waivers and modifications have to actually be authorized by the ACT you can't just label something a waiver a modification and Skip through negotiated will making a notice and comment uh right there subsection D it says the negotiated rulemaking requirements shall not apply to the waivers and modifications authorized or required by the act it doesn't say uh anything that the secretary labels a waiver or modification is authorized by the or required by the act and so we recognize that that Congress did create an exception but the waivers and modifications actually have to apply they have to actually be authorized by the heroes act Mr kindly what are the limits of your theory could someone who finished paying their loans off you know right last year Sue because they were disappointed that they weren't included for reimbursement no I don't think so because there's there's no mechanism by which the Department of Education can can write those borrowers a check and so their their injuries are not redressible here there is a mechanism under which the secretary can forgive Miss Brown's dad's forgive Mr Taylor stats and that's the difference what about the chief justices long Lawn Care person who doesn't go to college starts a lawn care business but as the chief said this person has some fairness concerns and feels like this shouldn't have happened and kind of level up or level down and wants to level down sure again the secretary or the secretary of education has no power to give any money to that individual or do anything like that and so there even if he could come up with a concrete interest it couldn't be redressible could have persuaded him not to do it would be I I take it with the fairness concern and the hypothetical the chief posed you I think it would have been to say well this isn't fair you're not doing this for me so you shouldn't have done it for anyone but you're not taking the position that that would be no he would not because you have to have you have to have concrete interests it has to be particularized can't be abstract and so so it's not just the getting shut out of notice and comment correct correct these individuals have concrete interests there was a 400 billion debt forgiveness program that was created and the respondents have debts and they're not being forgiven and if it had gone through the proper process negotiate rule making a notice and comment we could have argued that you our debt should be forgiven too the suggestion is not that the Secretary of Education should forgive on behalf of different banks loans to lawn service companies is that that is a consideration of other Americans in a comparable situation who will not get that sort of relief that maybe the secretary should have taken into account and that if we had notice and comment rulemaking the that maybe that would be a consideration that would be come forth or maybe if Congress were involved in this expenditure of 500 billion dollars that that might be something that they could consider right and I would also point to negotiated rule the negotiated rulemaking statute this is a unique statute um the Congress said specifically that it wanted all of the individuals who are affected by the title IV loan process individ student loan borrowers universities everyone it wants them to be involved in the process and it's strengthened those requirements in 1998 and so the idea I think that right after doing that it really strengthening negotiated rulemaking that Congress said yeah you can create a 400 billion dollar program on your own in secret without any public involvement it just doesn't it just doesn't seem uh possible what is what is the limiting principle I mean there are many many programs uh out there uh the people say well I ought to you know I ought to be covered by that and I wasn't uh and and we certainly don't allow everybody to come in and say just because I would have a right to comment uh if this if this law were struck down uh I therefore have a right to uh bring up bring a suit I mean how is this I understand uh maybe you have the one client that has a student loan and one that doesn't right right well there's a clear difference between those two situations isn't there sorry they both have they both have student loan debts right now brown has 17 000 and Taylor has thirty five thousand dollars okay well what principles should we look at to try to limit the universe of people who could otherwise get people who are interested in any kind of law at all and it's I'd have something to say that the secretary might find of interest in notice and comment and so I should be able to sue to block with there now I think you have to look at the scope and the purpose of the agency action was the individual's concrete interests at stake if they're doing something that has no relation to what you're complaining about your concrete interest then it's coming out of left field then that person isn't going to have standing or if there's no possibility that the secretary is going to give you relief because we're dealing with topic a and you're coming in here on topic B then that person isn't going to have standing but here we have there is no dispute there the secretary is trying to give release to student loan borrowers that's the nature and the scope and the purpose of this act and instead of figuring out okay among this universe of student loan borrowers who's going to get what how much instead of doing that on the public record they did it in secret first so for purposes of standing as distinct as to who can comment because anyone can comment for standing purposes it has to be someone who was in the class of people who could have been afforded relief said yeah I think that's a fair way to put it you have to have you have to have concrete interests it has to be particularized and that's and and that's what we have here I think and if I understand your your theory it's once you strike down this program then the secretary just uses Authority Under the hea is that the nature of your theory which would include notice and comment and negotiated rulemaking AGA uh uh gives the secretary but the theory is that the secretary will just switch to another statute well I think that's focusing uh you look at the agency action you look at the facts on the ground of what's actually but you're stricking down this program that's the whole point of your being there you're trying to this program is not um right you have to strike down this program to get any possibility of notice and comment under another statute right right so you have to strike down this program then you go under another statute and where you do get notice and comments that's the theory that is that is correct the hea gives us a right they have to go through negotiated while making a notice right I mean usually when we give standing for procedural uh violations we're talking about procedural violations within a particular program right we're not talking about you know if you have a problem with the procedures relating to one program you can just come in and strike down the program so that you're in another statute entirely well I don't think it's right to look at to focus on the the statute that they're using as as an excuse when you look at what we listen to what they acted under well and it's a statute that says you don't have to use notice and comment well I think we focus on the agency action at issue so in Luhan the aid the Luhan footnote seven the agency is proving a dam uh in summers The Agency is tearing down a forest here the agency is is doing debt forgiveness I think you look at the action I would point to Suppose there were no hea suppose it was this the secretary would go back to Congress and get a new statute no I don't think so at that point there would be no possibility that he would go back and give us well yes there is a possibility it goes back to Congress and says this is terrible nobody can get loan forgiveness so I'll go back and get a new statute that would that relief would be coming from Congress the the the way you look at the redress ability is whether there's some possibility that the agency will reconsider its decision uh it will reconsider its decision and here the decision was the debt forgiveness program what and so keep going sorry so you look you look at the you look at the agency action and the one of the other line of cases I would point to is is the structural separation of powers cases in those cases you focus on the agency action you don't look to see whether the acts uh the actions or the acts um restrictions on removal are injuring the individual you look at whether the agency's actions are enduring the individual and I think it's the same thing here what's your best case if you have one for your answer to Justice kagan's question about you going under a different statute or are you aware of such a case the the I guess a few responses first I would go back to the ones I just mentioned Luhan and Summers they're none of none of those cases focused on the statute at issue they looked at the action um Lujan footnote seven the day of the damn example an individual who is living next to a dam when they approve that Dam without going through the proper process that individual has a procedural right to challenge that when the agency approves the dam they're approving it under the federal power act when the individual is going to get relief he's getting it under the Endangered Species Act and I think what that footnote shows and what that example shows is that the statute really doesn't matter what they're acting under what matters is the agency action well let me ask you about the evidence what what evidence do you need as the plaintiff coming in claiming standing that the agency would have proceeded under this other statute because it's not a world in which you know they overlap so entirely that if we take one away they're automatically in the world of hea they would have to actually elect to operate in that other world and so this goes back to my very first question to you which was about don't we aren't you relying on the assumption that if the heroes act Falls this agency or this this Administration would pursue the same course of action under this other statute sure a few responses first if you look at the nature of the action it is applying to 95 percent of all borrowers it's not remotely tailored do you have evidence that they've said even pursuant to this litigation for example that if the Supreme Court strikes this down we're going to pursue the same relief under the hea I'm asking about the Ed like what do you sure is it enough for you just to identify another path don't you have to at least have some evidence that the administration is going to move in that direction so yeah so again I would point to the nature of the rule that it's broad-based it's not it's not tied to the pandemic the second thing I would point to is that there's all sorts of evidence um when uh [Music] during the camp during the campaign they were talking about doing broad-based debt relief it wasn't related to the pandemic uh Senator Warren and others passed resolutions urging the secretary to use the Higher Education Act to pass debt forgiveness uh Scholars have written about this and yet the secretary chose this path so I guess I'm just trying to say do we have something from the secretary saying that um you know we're definitely doing this under all circumstances and we picked the hea if the heroes act Falls I think that would be a very high burden for us to meet because if you look again at footnote 7 of Lujan when it's talking about why procedural rights are special what it's saying is that if if the burden is on the plaintiff to come back and say you know my comments are going to be amazing they're going to do this they're going to change their mind procedural rights are going are going to be useless they can always come back and say no that's changed your mind within the content effects of a particular program that this is Justice kagan's point I mean yes redressibility gets relaxed when we're in the world in which procedural rights would have otherwise existed and you don't have to as a plaintiff show that they would have made a different ultimate determination if they'd heard your comments we understand that but what you're suggesting is that same principle of redressibility applies to whether or not they would shift to an entirely different legal base of authority to pursue this program and I've never seen that before and again I I think this exact this this program they could have they could have cited a section uh 1082 of the hea to go under it they did they believe they can do it they've said it and they're brief that they can do it the reason they I I my guess is the reason why they didn't do that is because they would have had to go under negotiated rulemaking and notice and comment and if you look at the the the the breadth of this program it's not about the it's not about helping people who are uniquely suffering from the pandemic it's helping 95 of all borrowers and except from except for the respondents here and so I think when you look at the nature of the of the program at issue plus the campaign statements uh plus the fact that they've never gotten up here and denied it you put all that together and I think we have a strong at a minimum some possibility that they're going to get up when this program is declared unlawful and they go back to the drawing board I don't think they're going to fold up shot I think they're going to say how about the hea what's your theory if any and maybe I should be asking the other side this but you're theory for why they didn't want notice in common I think because it's it's a it's a pro law the negotiated rulemaking process and the notice and comment process I mean it's a long process and agencies probably would uh most agencies would prefer not to have to do that and this is an emergency and emergency statutes typically do not have notice and comments do they If This Were authorized by the heroes act then they could have gone under it but it's not they could have done the good cause exception though right they could have tried to but they didn't and and probably because it's not an actual emergency to have to forego notice and comment negotiated rulemaking thank you Council oh wait uh I'm sorry I didn't mean to cut you off too quickly I'm sorry Justice Thomas do you have anything Justice Alito this is Kavanaugh no no justice Barrett the same see thank you thank you very much General prelugger thank you Mr chief justice I want to begin with standing again my friend was asked several times whether he has a case to support this novel theory of standing he referred to Lujan and Summers those cases don't support the theory he's advancing here in every case where there has been an asserted procedural injury the plaintiff was asking the the for the agency to reconsider its decision under the very statutory Authority at issue he's not been able to identify any precedent where instead a plaintiff is able to say I acknowledge I can't get any relief under the particular agency action at issue instead I'm hoping for some kind of bank shot where if I can hold up the agency in this one area maybe it'll take a different action under a different statute that will down the road provide me some kind of benefit and that would be an extraordinary expansion of article 3 injury in the context of procedural injuries in particular he was asked whether he had a limiting principle and he suggested well you have to have a general interest or stake in in the subject matter of the dispute but I don't see how that limits it at all go back to the cases he cited which involved environmental plaintiffs and imagine a scenario where you have an environmental plaintiff who is interested in pollution and the agency has decided to regulate water pollution now that plaintiff doesn't actually have a stake in water pollution isn't harmed by it but the plaintiff thinks that if it can hold up the agency from regulating water pollution maybe the next priority or goal will be to go after air pollution I think that if a plaintiff came to court and pressed that kind of claim it would be clear that it is far too attenuated and can't possibly Supply a basis to allow this universe of plaintiffs to newly assert these kinds of procedural injuries or substantive injuries with respect to agency decisions that have not been made he said that they have a concrete interest in trying to have their debts forgiven if that were their interest there were several straightforward mechanisms to try to vindicate it here they could have challenged this plan as being arbitrary and capricious on substantive rounds to say you should expand the plan to include us or if for some reason they really wanted to have this under the Education Act they could have gone to the secretary and filed a petition for rulemaking and said give us relief under the Education Act but instead their argument here is that the secretary can't provide debt relief that is a really anomalous way to try to vindicate an interest that they claim they have in loan forgiveness I've been thinking of it effectively as this Rube Goldberg theory of standing where instead of taking the most direct route you've set up this complicated route to try to get what you want all in service of being able to smuggle in a substantive challenge to the heroes act for borrowers who are not hurt one bit by the secretary's decision to Grant relief under that act finally I want to respond to his suggestion that instead the secretary should have proceeded Under The Higher Education Act here I would think that at the very least if they were going to ask this court to recognize a cognizable article 3 injury on that basis it would be incumbent on them to explain their wholly unexplained position of why they think the secretary could do this under the Higher Education Act my friend has suggested that that's what this program was actually designed to do but this is a pandemic related program it specifically focuses on the National Emergency circumstances that have had profound Financial effects on student loan borrowers and the secretary acted to try to mitigate those financial harms from covet that's what the heroes Act was made for it is a perfect fit for this kind of circumstance and it explains why the secretary chose to provide this relief to those who were harmed by covid just as the forbearance policy was put into place right at the start of the pandemic similarly on those coveted concerns and then finally I know that we have had hours today on the legal issues in this case but I do want to step back for a moment and focus on the stakes of this case for the tens of millions of student loan borrowers in this country who have had devastating Financial impacts based on this unprecedented pandemic over the past three years they have benefited from the critical relief of the forbearance policy that's an unprecedented form of relief but it was very much needed in this circumstance to ensure that we did not see a deluge of default and delinquency on student loan debt and it's Undisputed my friends have not disputed that when that forbearance policy ends and it can't continue indefinitely once it ends there are going to be millions of borrowers who are in a worse position because of covid with respect to their ability to repay their loans ninety percent of the borrowers covered by this plan make less than 75 000 a year and the secretary documented the extreme impacts that covet had had on their financial affairs already 26 6 million people have applied for this relief and 16 million people have been approved to receive it for those Americans This is a critical Lifeline to ensure that they are not subject to the severe negative consequences of delinquency and default on student loan debt and the relief for these Americans has been held up by two student loan borrowers who don't even have standing and whose claims fail on the merits so we'd urge you to reject their claims thank you General Mr Connolly the case is submitted The Honorable court is now adjourned until tomorrow at 10 o'clock

Channel: CBS News

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Keywords: cbs news, news, live news, livestream, breaking news, supreme court, scotus, student loan forgiveness, student debt relief, biden, joe biden, president biden, biden v. nebraska, department of education v. brown, federal student loan

Id: BzXVTAQy0Pg

Length: 204min 11sec (12251 seconds)

Published: Tue Feb 28 2023