>> the supreme court heard oral argu in biden v. nebraska, a case involving six states challenging president biden's student loan debt relief program. nebraska along with five other states argue the program is no lawful. the supreme court has through june, 2023, to issue a ruling. >> biden v. nebraska. >> mr. chief justice and may it please, the court, covid-19 is the most deb stating pandemic in our nation's history and it has caused enormous disruption and economic distress. over the past three years millionsf americans have struggled to pay rent, utilities, food d many have been unable to pay their debts. to head off immediate harm for student loan borrowers, two

secretaries across two administrations invokedhe heroes act. the states ask this court to deny that vital relief to millns of americans but they lack standing to seek that result. they principally assert harm to a separate leg person that could sue in its o name but has chosen not to do so, and the state' asserted harms to their tax revenues are self-inflicted and indirect. e state's disagreement with this policy is not the sort of concrete injure that article 3

demands. onhe merits, the state act doesn't authorize the secretary to ever forgive loan principle but the secretary's interpretation of this tex is not just a plausible reading, it's the best reading. ngress expressly authorized the secreta to waive or modify any title for provision in emergencies to pvide financial relief to borrowers. loan forgiveness is a form of debt leaf. and the -- debt relief. d 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 toverride that clear text would deny borrowers critical relief that congress authorized and the secretary deemed essential. i welcome the court's questions >> is this a waiver or a modification? >> bh. this appears at ja-261, that was thdecision document that the secretary signed where he said i

hereby issue waivers and modifications of multiple provisions under title 4 of the student loan program and then that language was repeatedn the federal register notice that actually implemented that program and constitutes the final agency action that the states are challenng here. >> could you explain then, in other provisions, there is express language as to cancellation and of course there n't here. so would you take a minute to explain how a waiver or modication amounts to a waiver, to a cancellatn? >> of course. so the secretary identied various provisions in title 4 that govern the terms and conditions of student loans and also govern discharge and cancellation and other circumstances as your question suggested. and i think the straightfward way to think about how the verbs map on to the sectary's action is that he waived elements of those provisions that contain eligibility requirements for discharging cancellation that are inapicable under this program and then modified the provisio to contain the

limitations that he had announced as part and parcel of announcing this loan forgiveness. you had suggested there was no express stament in the heroes act to discharge loan principle and tt's true -- loan principal and that's true. but the language here is the provision that says the secretary's empowered to waive modify any title 4 provision and so the heroes act isn't innumerating any of rious forms of relief that have long been authorized and implemented under this statute. i don't think anything can be read into t ft 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 d the tools to respond to the national emergency with whatever relief might be necessite >> in an opinion we had aew years ago by justice scalia, he talked about what the world modify means. he said modified in our view canotes modetehange. he said it might be glood english to say the french relution modified the status of the french nobility but only

becae there's a figure of speech called understatement and a litery device known as sarcasm. we're talking about hala trillion dollars and 43 million americans. how does that fit under the normal understanding of modifying? >> so of course i recognize that justice scalia's opinion adopted a narrower understanding of that rm but i don't read that opinion to set forth a universal meaninof modify, no matter the statutory context. and here of course whave a broaderhrase, waive or modify. it's undisputed and the states aren't contesting that the ordinary meaning of waive means eliminate an obligation in its enre. if you look at that phrase in the context of the statute, that means that modifyas 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. >> it's waive particular regulatory or statutory provisions.congress itself has r

them to discharge other circumstances, it has included provisions in the higher education act or bankruptcy for example. other kinds of hardships. couldn't have surprise congress one bit that in response to hardship posed by national emergency the secretary might consider writing discharge if that is what it takes to ma sure borrowers don't default. >> allowair when your school closes thabeuse of that, congress shouldn't have been surprised when half $1 trillion is wiped off the books? >> i think it demonstrates that essentially focused on providing financial relief, that terminology should be given meaning, and congress could have anticipated that in a particular

situation you might expect that thway to ameliorate the borrower harm is throughoan forgiveness area maybe i could just use an example frothe initial concept of thstatutory relief. it was initially a bl that was provided to help servicemembers and wars. the servicemember goes off to war, you can provide heroes act relief to ensure the servicemember does not have to pay down the loans. if somethi we to happen that left that seicember worse off, makes perfect sense that congress would have authority under this act. that servicemember isn't going to be left worse off. first order question of whether you could er do any of that discharge and in that context,

it is perfectly sensible to read this langu authorize that. >> the amount of issue the chief mentioned e arter of a trillion dolla, w do you deal with that? because, that seems to be in favor of t arguments, and this is a major question. >> of course, we acknledge this is an economically significant action. i think that can't possibly be the sole measure for triggering application. in prior cases, the court has pointed to economic and historical signicance. it has ao reviewed a litany of additional factors of how congress is likely to legislate, the agency is claiming asked drop again regulatory authority that it don't actually have. 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 or substantial cost or trigger political coroversy. we think there are any number of additional factors to demonstrate this does not fit the major questions paradigm. this is not an assertion of regulatoryutrity at all. this is about the benefits program. they have recognid that you using commonsense interptations of understanding how congress should legislate, coress might pause before empowering the executive to engage in extravagant regulation. in the context of a benefits program, to hesitate about what congress might have inteed, because it is perfectly logical for cgress to broadly empower the executive to ride benefits in a crisis situation or an emergency. >> let's say that nobody in congress was aware that there is such a thing in oucase law called the major questio

doctrine. you simply polled every member of congress and ask the pern whether, in the ordinary sense ofhe term, they would regard what the government proposes to do with student loans as a major question or something other than a major question? >> i certainly acknoedge that in a colloquial sense, you could charterize this as a policy, we are not dputing that way. i think that applies to any number of actions that the government might take, especially in the context of the benefits program where iis based on the size of those programs and number of individuals affected, the cost can frequently be billions o dollars. >>s there any conceptual reason why this should apply to most regulatory matters but not to the benefits prra? >> the reason you think it shouldn't apply is because it

doesn't involve that correspondintrade-off on individual litary -- liberty interests. e prior cases in this area has expressed concern that if the government is claiming an extraordinary power to regulate, it could encroach on the lives of individuals and quite directly impose burdens on them. >> it may have an effect on important individual rights, but yothk that the dock and also primarily has a separation of powers component? >> i recognize that. i think that cuts in favor of the distinction that we are trying to make. if the court were to apply major questions in its benefits context in a circumstance where you might think congress could legislate broadly, it wld have the effect opotentially overriding congress is intent. >> i don't understand why it would undermine congress's intent to a greater extent in that context.

but, drawing a distinction between benefits program and other programs seems to presume that when it comes to the administration of benefits programs, $1 trillion here, $1 trillion there, doesn't ally make that much different. it doesn't seem very sensible. >> of course i acknowledge that there can be substantial cost associated with e benefits program. e reason i am pressing on this distinction is because i am trying to think through, what is congress supposed to do when i wants to empower -- >> looking at this prra looking at this question, is this the sort of thing that congress is lilyo address expresslyr through a contestable interpretation of some stutory language? >> congress did dress -- address this expressly here.

in the context oa national emergency, the limitation of the heroes act, the secretary can invoke ts whenever he wants. there has to be that emergey in that context in line with coresses limitation of who affected, with the purposes, congress said you can waive or modify any title or provision to get relief to borrowers. i would point to the forbearance policy that has been in place for the prior three years, put into place at the beginng of the pandemic by secretary devos. that has bn an academic signifant program. it is costing t federal government more per year than this loan foiveness program annually area that is right in the heartland of what the heroes act aims to do. critical relief that was rushed out at the beginning of the devastating pandemic to ensure that we didn't see spikes in the link with the and default across the nation.

>> let me ask you a question about standings. if anyarty in either of these two cases had standings, it would be permissible for us to reach the merits of the issue? >> yes. in the state's case, if you conclude that any party has standing, the work could go on to the merits. in the case the court will hear next, we think there are objections to the cedro claim. >> o let me ask you a question about moji. if mo gila brought this suit, would you contest article three standing? >> we wod not. we think that if they made legations that the a was going to have financial effect, it could sue in its own name. >> all right. so then we would consider the arcle freestanding of the state of missouri.

and, the part of the article three that is most disputed is injury in fact. >>hat is right. i think injury and fact is one of the critical points in dispute. >> injury in fact is a factua question. so, i uerstand a big plus of yourrgent to be that missouri lacked standing because mo gila is separately incorporated. why should that formal distinction govern a deteination of injury in fact? >> we think e jury in fact analysis has both a factual and a legal component. in the firstlace, we are making arguments that even if there is a fincial injury, the state has an carried its burden to show that willave effects on the state. mo gila hasn't paid money into

the relent state fund. they said that further payments were not deemed probable. even putting t factual discrepancies to the side, there is a fundamental problem with matter of law andim of injury. arises directly from two sets of black letter principles area the whe point of incorporation is that you are creating a sepate legal person with its own right and interest. the second is e basic article three principle that a party has to come to court and assert her own right and interest. >> all of that is certainl true. you think that the fa that mo gila is incorporated is the end of the day? that is enough to defeat the standing. >> we think as a matter of first principles, yes. this court has emphasized that when you have a separately incorporated instrumentality like that, the corporate should be respected. those are doctrines not focused

article re-standing, but our testing r other things. in the data action case, the state's rsoning that you should not be able to parcel out governmental function to an instrumentality. >> have we ever decided a case that presents what you see is the su whethe the article freestanding puoses, an entity is part of the spac >>o. the court has an address this issue in the context of article three. i think that we definity have the better argument of the first principles here, bed on the propositions i mentioned earlier, including those that gerally make clear that the court won't counter a third-party claim seeking to invoke rights d interests of individuals and entities that aren't before the court. i think it would be anomalous to recognize somein of exception to those principles. >> the question woulde whether mo gilisart of the state of missouri for present purposes.

and where we are considering injury in fact, why should the test turn -- why shod e lack of corporate status be a necessary element? why shouldn't the tests be sothg more like, whether relatish between this entity d the state of missouri is such an injury to mo gila. that will presumptuously be an injury to the state. if that is the case, doesn't that all point to the reasons for setting m gila? and the degree of state control and governors ctrol over this as a very important factor >> i don't think this factor should count as important in the analysis. to the extent the cot is planning to broaden that, i think the most criticalact would be whether there is financial entanglement and whether missouri has decided to blur those lines for purposes of

making it responsible f own liability. the most importanthing is -- if economic injury is the point. it is understood that the injury was an economic injury, but if we lk mo gila and we see that its finanal interests are totally diseaned from the state,t is incorporated separalythe state is not liable for athg that happens, i don't know how that could possibly be a reason to say that an injury to mo gila should count as an injury tohe state. we agree exactly what that analysis. it is important to think about the benefits that missouri s attained from structuring it this way area this is not the first lawsuit that mo gila has been involved in. in prior suits, when they he been sued, the state has been entirely absent. state law makes clear that missouri cannot be on the hook for this liability.

it creates a wall of separation. >> soap mo gila being injured as a result, at least that is the letion, they have the ability to defend themselves. exactly, a separate legal person. there is nothing that stands in the waof mo gila asserting these interest, and no [indiscernible] allowing missouri to interfere with the federation. >> would we be breaking new ground if on this basis, we found standing? >> yes, i am not aware of any case that would support standing on this basis. we have never been presented as you admitted earlier, with the case. >> it is true, but i think the courtould be breaking new ground with respect to the general principle that it has inserted in third-party anding context. one of the critical fac the

court has highlighted is whether there is some impediment that would resent the party whose rights and interests are implicated from its own claim. there is nothing like that here. >> do you have any understanding about why they aren't here? >> the only evidence in the record is that it's involvement in the suit has been responding to sunshine log request. it is poible that loan servicers -- missouri served sunshine log requests in order to get information. i think it just reinforces the sense thathe was separation here between thetate and instrumentaly. if i had to speculate, i think that loan servicers have seen some of their service be reduced. it is possible that they are waiting for forbearance to lift.

they don't want to stand in the way of this forgivenessicy, because it is a critical ent. >> do you think there might be a dependent relationship between agencies like mo gila and the federal government? >> certainly there are contractual relationships, yes. >> there was a missouri case in 1979 at a medical center with an agency much like mo gila. and there, theyisuri supreme court said that enty s not the state. basically they organize themselves and structured themselves in any way they want. >> correct, yes. >> it would be odd for us to have the state say, we are creating a corporation, we are not going to be responsible for its debt, we won't be

responsible for any of its contract, we won'te responsible for anything it does financially. and the state itself says, this is not the state, it is an independent corporation and we will say that it is the state, correct? >> yes, i think it would be really anomalous to override the separation that missouri created it and mo gila in the context of this case. >> the state supreme court decision -- >> yes, that's correct. >> arkansas versus texas, arkansas owned the land of the unerty. it does seem tt ssouri has created th separateness to respect to the liabilities of mojito. its not really clear to me what happens to mo gila's assets . does your answer change even though missouri is not responsible for the liability?

>> i think it is clear under state law thamiouri doesn't have that kind of ownership interest in the asset of mo gila. i wou point to missouri revised statute 173 pnt 410. this is the provision that makes their that missouri cannot take the assets of mo gila and appropriate them. it makes clear those assets are under mo gila's exclusive control. we don't have anything like the arkansas case that you just referenced. the book side of thats the state law that says missouri will not be liable for any agreements or authorizatns or liability. if they go out there in the world and harm someone, the state is not oth hook for the damage. that is anotr distinction from the arkansas case. there, a suit against them was a suit against the state itself. >> would you have the same respect to federal cpotions? what about the fbi see?

could the united states sue to protect the federal government's interest if thcoorate identity was separate? >> i think our principles would apply to respect to her own instrumentalitie instrumentality enter io a contract on behalf of the united states in the name ofhenited states as its agent, and we had a contract we could enforce, or ere was another case that volve the tax contest to offset. and the unit stes could sue on that basis. we havner done what the states are dngere in the absence of any underlying con -- context. >> thank you i just have a question on the major questions doctrine. i justand a little bit of

background and want to get your views. you are arguing that the common oceeding was required before the action taken on the half trillion dollars of loans. because of your view, the president caac laterally and the no role for congress to play. ven your view of standing, there is no role us to a in this, either. we take very seriously the idea of separation of powers and that power should be divided to prevent it abuse. there are my ocedural niceties that have to be followed for theampurpose. the case reminds me of the one wead few years ago under a differt ministration where they tried acting in i own to cancel the dreamers program. we blocked that effort. i just wde given the posture

of t ce and our historic concn out the separation of wers, you would recognize tha this is a case that presents extraordinarily seou important issues about the role ofongress and about the role that we should exercis and denies. significant enough that the major questions doctrine ought to be considered implicated. >> let me tryo turn to the concerns. we are not suggesting that there is no role for the judiciary to pay, it is that these plaintiff are not proper plaintiffs in th ce. we think that loan servicers would have standing to challge this plan. the fact that loan service haven't yet challenged does not ovide a basis to overlook those fundamental requirement and distort the meani ohow they were previously articulated in a circumstance where the states can't otherwise denstrate the standings.

with respect to the role for congress is that of course we are recognizing that congress could take additional action, anwe introduced to offer the text of the heroes act, the secretary c't authorize loan discharge. th is one rule congress can pl. i think the courts focused on trying to ensure that congress is role is risk acted. that has argued in favor of readinth text in line with what the plainanage suggests. these e not words of limitation in the actual assertion of authority. e states want this court to say, congress really only meant toodify some of the provision, when those would have been obvious candidates for waiver modifiti in a discharge program. if the court overrides that, i think it could only for congress's intent and ensuring

that 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 qstns doctrine. the way we considered it is whher or not the issue that was before the work isomhing that had been seriously considered and debated and was a matter of local controversy. that certainly is the case here. >> that is right. >> not jusa litically significant action, but one that has e tention of congress. unr e major questions doctri, s considered the matter. support for the notion that maybe it should be one for congress. if you're talking about this in the abstract, most casual observers with day if you are going to give up that much amount of money, if you are going to affect the obligations of that ma ameca, they

would think that is something for congress to act on. if they haven't acted on it, maybe that is a good lesson. maybe that is not something they should undertake on their own. >> let me react to tha first is to emphasize that the enacted leslion that the states are pointing to did not mirror the particular plan. i n't think it would be right to say that congress has specifically focused onhi land. i would point against the fact thathe is legislative inaction on the others. i would think th t court would place more focus active legislation. during the pandemic, congress enactedhemerican rescue plan that specifically fought to facilitate a program of loan discharge. but it would not be subcto federal taxation. i think that congressional

action carries more weight in the analysis. >> anything further? goust briefly, there is some discussion in the briefs that going past this provision or that modification or waiver that this is a canclaon of a debt , that is really what we're talking about. as the cancellation of $400 billion in debt in a fact, this is a grant of $400 billion. it runs headlong into congresse appropriations authority. i would like to give you some time to respond to that. se. first, want to take on the argument that so many have aid in ts case about locating a probe rations authority. it doesn'reire that any money be drawn from th treasuryi n't think that it raises an appropations issue.

to the extent, that concern is abt the secretary taking action in a way that congress would't authorize. it just collapses back into the cera interpretive point in this case. with respect to theonrn we raise that the effect of loan forgiveness would result in cancellation of a measure of that for the effective borrowers, that is tru i don't think that is materially different than the kind of effects you can see from other types of authority that has been exercised unr e heroes act. this has been powerful relief for debtors. it has had permanent financial effects on the government, over $150 billion over the verse of that forbearance program. it has been absolutely critical relief. it has provided help to the student loan borrowers who han't had to make those interest pmes or any loans

well it habe in place. that can have the consequence of bolting in principle. the years that boows spent in forbearance count towards loan forgiveness programs. those borrowers in incomerin repayment for public service an forgivessill pay less on their loan overall. itilbe forgiven three years earlier. i don't think that calls into question the legitimacy and authorization behind the forbearance policy. >> i think that forbearan fs more comfortably in modify waiver language. its forbearing on collectg an underlying debt. you don't cancel the debt, that is what we are talking about here. certainly there is a cost to that. i still thi tt you haven't fully explained why, if you loedt ts,ou would not

argue that secretary could actually grant hundred billion dollars. go outside of the context of the heroes act? >> yes. >> that's right. you are relying on appropriations from congress for that. the argument is that you are in effect doing that without appropriations from congress. >> i don't see how you could distinguish th fm any other forms of relief under e roes act. all of theseor of relief because the government money. one of the forms of relf at the government hasffed is to pay the intestn the ln for them. i thinkou could probably make the sa argument of questioning does that cost the government money? does that transform the nature of the program because it takes

interest and mak ian interest free loan? th is exactly what congress intended is to make those changes in direct response and proportion to the situation that secretary confronts. >> returning to the standing question, e states basically sawe are going toose money in taxation one way or another. in the texas case, you argue that we should be looking at the cost and benefit. some over here say there will be a tremendous benefit to the state service cancellation because the extra money will reltn increased consumer spending a dreased housing and surity, less defaults on other loans, etc.. do you agree with the?

that the economic benefits outweigh any financial harm? >> as a factual matter,e not disagree. as a legal mte we haven't asked the court to rely on the. wehink that the location are so easily answered under this court's precedent i would point the court tth pennsylvania versus new jersey. we think you don't need to go down the road taking about some of theroer arguments about tax inju bause it is so dear that this work has already rejected the very injury the states are asserti. >> in pennsylvania, thawaa tax credit that was going to be removed. >> pennsylvania had issued its tax credit that they were opposed to and had extendeit to residents when they pay taxes in oth stes. new jersey turned its tax to a commer tax. the court said that is

self-inflicted because they told pennsyan to exte that tax credit. at applies equally here. it requires the steso tie their definition of gross inco to the federal tax and missouri doesn't do that and there is nothing that prevents them from chgi that if they d't want to honor the forgiveness from taxation that the federal vernment is now in -- under. >> i want to change the subject a bit. your friends on the stateside and the borrowers in the otr case have a number of that you torry argumt saying this wasn't necessary under the terms of thetatute, saying that it leaves borrowers better off, not worse off. pointing to statutory langge area saying that the borrowers are worse off because of the

pandemic. i am not sure that i uerstand really those arguments and statutory arguments as much as i understandhe as arbitrary. essentially, thearsaying that the secretary just did t say the right things, did not make the right findings, did not properly justify wha he did here. there is no sense inhi we read this meraum and come awayhinking oh, yes, these harms were caused by the pandemic and there is a basi for this action and a sufficient basis. i want tgive you a chance to talk about that. essentially the tie to the pandemic of the sort of harms that the secretary said may relief appropriate. >> let me say that i agree that those kinds of arguments are

much more natur. the reason for thats cause it is clear that congress torated over breath in the atute. it told the secretary that he can act on a classified basis and doesn't need to react to each individual borrower, instead, he should takacon to ensure that the borrowers are not left worse off, may n as strict necessary. a worldhe it is clear under the statut that the secretary n't violating the heroes act by providing relief and the effect of offering critical benefi t borrowersho wouldn't have needed them in the absee the relief. then the question boils down to, havehe secretary justified his line drawing in the scope of relief > that should focus under purchase review. states aumts lack merit when you look at the secretary's explanations for why this relief

was necessary. he dumted the substantial econicmpact of the covid enmic across the entire country. already necessitated under presidential -- unprecedented aid. the forbearance policynd the heroes act that the department had never put into place. he documented those financial effect. then he explained using data that he examined the huge swath of borrowers were going to be at hu rk for default and delinquency or inability to pay their loans onceorarance ends. at justifies the decision about how it affects the limits of the pgr. all the states arguments about how that wasn't strictly necearor that maybe it doesn't have a connection to the pandemic are answered in full by the secretary this year. >> i would like to follow up on justickan's question.

under state farm, one of the things the government must normally dos explain not just the benefits of its proposed cour oaction but ao grapple with the costr negative effects of programs that are proposed. your frids on the other site argue that is another deficiency in the memorandum. >> of course. i wanto say that my friends armiaken to sge the secretary didn't even consider cost. the department extensively models the ct and submitted the cost estimates. >> i don't just mean numbers, but generally, the negative effects to the economy, to people w d't have this opportunity for debt relf, the variety of facto tt under state farm that would be normally have to consider in yourriends on the others argue

those are not present. >> i think those wer certainly at the secretary's determination of how to tailor this that secretary recognize that the central purpose of the heroes act was implicated because there re going to be millions of borrowers who were at serious risk of default and who are in a rsposition because of the pandemic. he decided to tailor the plan to lookt ose risks and decid on the scope of relief and the costs associated with that e the flipside of providing heroes act relief under any circumstances. >> not just the stf the government, but i think what is missing is cost to other perns in terms of fairness. people who have paid their loans, ppl who have planned their lives around not seeking loans and people who are not eligible for loans in the first place.

half a trillion dollars is being verted to one group of persons over others. i think that is the nature of their argument, in addition to the ct. i didn't s athing in the memorandum that dealt with those kinds of questions. if there is something, i would be appreciative if you could point me to it. >> there is not. i think those kinds of arguments are inconsistent with the statutory scheme. congress already mada dgment that in the context of a national emergency, you should be abl to abide borrowers with th kind of relief. for the state to suggest it is cuent on the secretary to say, i am not going to do that. >> appreciate that. congress has given the executive branch a lot of emergency authority. it also requires the president

specify the provisions of law under which he proposes that he others will act. i am wondering, d tt happen here? >> it did. the covid-19 emergency, the specific provisions that he invoked were part of the social security act to target the spread of disease. >> did he indicate anything under the heroes act or the department of ucion? >> no. i think it is clear that the heroes act ia claration of the national emergcynot the other way around. >> finally, in the new york census case, the majority of this court held that hilliard to count the individual undercot at the senses would have effects to the state of new york in terms of the benefits it might

later receive sufficient to constitute standing in that case. i would like your outs on that. >> in that case, support w looking at a census count that was going to begin directly the amount of federal funding that the state would receive. in that terminology,hat was a direct effecth simply the action would determine federal funding for the state and operate directly on the state or determinitrights and interests. here it is not the same kind of direct effect. the court doesn't need to get into those issues. he a the downstream effects on tax revenues >> i would like to pick up on the chief justice's questions on

statutory tax. i think you said earlier what was congress in 2003 supposed to do? in termsf vance authorization. of course, they could have in 2003, referred to loan cancellation and loan forgiveness and those are not i the statutory text. that leaves us with the situation that i tnke have seen before, in the general language, congress specifically considering the present issue t not, as you acknowledge, passing legislation thatou authorize the specific action. in the wake of congress not authorizing the action, dng massive, new program. th seems problematic under, going back to the benzene case

so why ds is case not fit into that formula that we have seen before in pri ces? >> there was a lot packed in the and i want to respd each of the considerations. i thinkowthe line, this case is a farryromho higher situations. you mentioned t idea of taking an old statute and pressing it into service. i don't think that is a fair characterization of misuse of the ro act. the whole of this is to ensure that in the base of a national emergency that is causing fincl harm, the secretary cado something. he can alter that student an program. there is a mmah here of dusting off an old statute whe congress never have imagined it would ud before.

you also suggested there would have been a caray for congress to formulate this language. i think that doesn't carry a lot of signicae in this context because congress didn't ameliorate any of the possible relief. the secretary can consider waiving or modifying all title iv prosions. certnlyou might be able to draw inferen fm that. he i think the opposite applies. insure or advance that the secretary has the tools to make sure the student loan borrowers weren't going to be left worse off. you mentioned the congressional inaction. that donstrates this is a policay significant issue. as i mentioned to the chief justice, w have inaction on both sides. congress has not amended the heroes act but enacted the

american rescue plan and facilitateitynsuring that those discharges would note subject to federal taxation. the other thing i would add, this is not a situation where the secretary is acting outse the heartland of his authority. you have concerns that th agency is acting outside the re of its dai the cdc inserting itself and the landlordndenant relationship. this is the student loan program. that falls within the wahoe of the secretary of education. these arferal loans between the federal government and student anorrowers. this is the situation where the cretary is acting in the core of his expertise and authority. >> something else youai was that wshldn't necessarily apply that line of acid and in this suaon because it is not a regulatory row graham but a

benefits program. i want to push back ltle on that and get your response which is, there are going to be winners and losers. that raises similar concerns about individual rights and invial liberty that are present in regulatory programs as well, and why wl't the same process that we have applied in aegatory context apply alson e benefits contact? >> i think at the very least, to e extent that there are those consideratio tt you referenced, they are not direct in the samwa that expansive regulatoryutrity is. wh y have got a government program that constitutes tragant regulatory authority, that takes an identifiable group and directly

imses burdens or cost on them. i think there is a distinction when it comes to how coness is likely to legislate and its general comfort level with empowering the executive to providbefits to americans. even if you didn't tnkhose benefits iregulation distinction should carry today, we should factor into the analysis when applying the principles here and looking at the cones jen before, youhi about what congress is supposed to do. coress in 2003 thinking, we can't predict the future we don't know when emergencies will happen. but we want to ensu that we are empowering the feder government to take care of student loanorwers and not leav them at substantial risk being worse off. the language that congress acd here is a perfect fit to

accomplish that goal. it is hard to see what they could've done differently. >> in thinking about emergencies,he history of this court with rescto executive courts, some of e ggest mistakes were deferring to assertions of executive emergency power. some of the finest moments in the courts history we shing back against presideia assertions. that continued not just in the korean war, but po 9/11 and some othcases there. given that history, there is a coern that i feel about how to halen emergency assertion. a professor says this is a case sty abuse of executive emergency powers. t ying i agree with that, saying thats the assertion how

should we think about our role in assertion of presintl emergency powers, given the courts history? >> in light of that history and l e conxt, it is aware of the distinction between regulation and benefits that really makes a difference. it actually tracks some of the concerns that have beeraed about standings and about who could tuly sue on this land. to the extent that there is a limited number of pple that would permit standing in a case ke this one. i think that shows that because when the government is ministering the benefits of graham, there are fewer reasons to be concerned that will have the kind of profound burdens or regulatory efftshat might prompt a note of caution in other contexts.

i think that the considerations on the others, we think about the emergency situation, it i logical for congress in the possibility to thinke nt to make sure that without delay, the executive branch can take ref americans and get them essentialenefits and language that has many upper limitations the heroes act limits th circumstances that contribute to authory, it says who you c help, how you can help them, and ameliorateerces that the aide has to serve. in all the ways that congress combines that authority, when he secretary has made findings that without this relief, we will have a wave of default across the country with all the negative consequences that has, think that is the type of context where the executive should be able to implement the emergency powers.

mfirst question is clarifying. i think i may have misunderstood. you said that the secretary modifies? i understand tt the secretary only relies on the modification. is it in the same -- did he also say wave? >> i understanyo confusion. at times, he spoke of modification. if you read known, he said these waivers will. i think he is treating the both as waivers of modification. he said i hereby issue waivers and modification of th relevant provio of title iv. i would look at that to unrsnd what the secretary was doing. >>o clearwaers -- when

i saw that, i thought he was using waiver as a synonym for cancellation, the obgaon to pay back the principal. waivern e statute refers to waivg statutory and regulatory provisions, not waiving the obligation to rey? >> that is correct. if you trace through, they are statutory d regulatory provisions and establish the terms of the proamand also deal with dischargan cancellation authority. he said heas issuing waivers and modifications of all thos provisions. he was waving the elements of the discharge provisions that are inapplicable in this program. then modifying the provisions to bring it in line with this program and student loan borrowers. >> if you think oft as canceling those deleting and then adding back in, then

putting his own refinements in? >> that is right. the heroes act directs him to do this. it specifillsays he has to publish the terms and conditions for e an programs in lieu of e ived and modified provisions. >> next question, the overlap between when we are thinking about are you acting as an arm of the goveren or purposes of [iisrnible] and bound by the first amendment? is mo part of the government? could my gila to nine loans to people on the basis of their race or religion you -- i don't think that the lebron test should be used for article

threetanding purposes. >> why would that be. but then not for purposes of standing? either they are or they are not. >> we are certainly not disputing that they could be, that they have governmental function. ats the kindf thing the court would engage in. one thing about this is that the courts, and trying to analyze, it would be inappropriate for states to be able to separately incorporate instrumentality and that evades thstructures of the constitution. ensure states can't unbind themselves with respect to fundamental rights and citizen all of the equitable considerations line up in the opsi direction. we have a situation where missouri has benefed

w low it to come in and say actual, u should treat i and a sarate corporation as one of the same, -- >> so two different buckets? another testorurposes of sovereign unity, and another test for purposes of standing? >>e n't think mo gila actually congregates. that is one of the critical factors. the financial separation is clear that there is a strict wall and that missouri is not gointoe responsible. we think that dethis court's precen mo gila wouldn't qualify. we think there is a different [indiscernible] in article the. >> i want to return to jusce kagan's questions. are these stuty arguments?

are you avg them worse off or better off? i nto focus on the causation. it seems to mthat the government's position must be that the heroes act permits causation, it doesn't require a oximate cause. secretary also refers to russia's invasion of ukraine and inflatn d other things. the invasion of ukraine has nothing to do with covid. the other things would have a more attenuated relationship. our of that is our posionwe think it should be for causation. these states haven't actually revived those arguments here. han't made that a central aspect of their argument. >> whether this is a statutory interpretation question for. the government took a position that 10 years from now, it could forgive loans based covid if effects were lingering.

>> t district completely misunderstood that. e government counsel said that the national emergency is ongoing, if we are still in the midst of a raging covi pandemic, he said it would be hard. we know that we are actually now working to recover from the pandemic. he said the heroes act authority would continue. we are not suggesting you could have that kind of temp or attenuation from a national emergent seeing d say that ending today, you could point back to covid and this time for basis of heroes act relief. we don't have anything like that. the secretary acted in recognition that it is time for the forbearance policy to end, that will leave huge numbers of borrowers unable to pay their loans. go i have two questions.

the concrete question comes from a statement that you make in yourep about mo gila standing and offsettin ease. offsetting fees from the discharge, we are not really sure what the net loss would be. can you spell out a little bit more about that? >> under the darents contract, mo gila recvefees for discharging. here, missri hasn't come forward with any allegatns that mo gila will actually suffer financial injury. this is allusin service of making the broader point that any financial effects are attenuated. we do't know really what the ultimate loss would be to mo gila even if we believe that mo gila is part of the state.

i also have a big picture question. you are arguing that standing here would be a reach if we were to find that mo gila somehow lost its count for the ppo of the state, based on establishing these principles. what awondering is whether the same concerns about the politicalignificance of this ca tt the chief pointed to could be a reason for us to hold e line in terms of thinking about our standing doctrine. i understood the standing bar as pld in a case like this wod allow the political breaches to hash this out without >> for us to hold the line in terms of our dtre and

whether we should expand it in this area. i detood that the standing bar as alied in a case like this wouldllow the political branches to have this out without interference fr a torrent of lawsuitbrght by states and entities d diduals who do not have a real psoltake in the outcome. in some ways, it is not unlike a case we heard last week where people were very concerned about lawsuits against tech companies and how they mightobed these companies if we allow them to go forwd. gus i have that same worry about the oration of the federal government. and its ability to govern. if we look at our standing doctrine in cases like this and we find that even the most minor state interest, a dormant fund th has not been used bthe

state in 15 years, if that can be the basis for standing, i guess i am concerned that we are gog to have a problem, in terms of the federal government's ability to operate. so my queiois is this a legitimate concern?ndhould we be thinking in cases le this about that type of concern as we ponder whether to expand our standing doctrines? >> it is a legitimate concern. the court has never sgested before that it should alter article threeriiples and allow plaintiffs to sue based on ncerns about the significance of the action. the court has said that the fact that no one might have standing to sue does not mean you should alter the article and allow issue. they do not rule on congresses enactments or thexecutives implementation, but it would be rticularly anomalous to accept

the states attenuated theories of standing because there is not even a situationhe there is no other identifiable plaintiff or possili to have the courts weighn these issues. the problem is that the stes are not the proper plaintiff to bring the suit. >> thank you. >> thank you general general campbell? gen. campbell: the secretary is tempting toypass congress on one of the days most debated policy questions, student loan forgiveness. after many failed efforts, the secrety seeks to write off nearly a half trli dollars in loans for 40 billion borrowers -- 40 million rrowers. no statute authorizes this sweeping action. on standing, missouri has the right to vindicate the harms. it is a public controlled instrument to that provides the function of providing fanal

aid to missouri students. the secrars program threatens to cut the opeti revenue by 40%. this will dectly undermine their ability to further critical public purposes and the state has standing tasrt those harms. on the merits this is a major questions case. nearly hay half a trillion dollar debt cancellation program is -- nearly a at half trillion llar debt cancellation program is a matter of political significance. it is unprecedented. never before has the heroeac been used to forgive a single loan. in addition,he secretary asserts a breathtang power to do anything that he thinks might reduceheisk of borrowers defaulting, even years after a national emergency. he needs congressional authorization buheoes not have it because the hoe 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 reitexisting provisions to create a new program that covers 95% of borrowers and applies to them regardless of how the pandemic afftethem. this cou suld declare this program unlawful and i welcome the courts questions. general, i think at the giing, you said comments on thretionship between mobile hila in the state of missouri. primarily, as you have heard, the effect of this forgiveness program and by eension on the state of missouri for establisng standing. >> to start with the effects on mohela, as of last fiscal year, 77% of its revenue came from

servicing loans. nearly half of all borrowers loans will be discharged under this program sot stands to reason that about half of mohela 's operating reven from direct loans will be cut and that amounts to 40% of its operating revenue. justice jackson asked the question about whether there are offsetting fees. it is very hard to believe and the vement does not 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 thoslos. >> i't that your burden? you are bringing this lawsuit d u have to establish standing. and so, to the extent thate are trying to assess ether mohela is gngo be injured, i don't think you can sw when the government has not said something about the fees. >> my point in bringing that

up, justice jackson is that the about the fee in responding tong what we have substantiated through the documents w in. we have put in documents indicating that this will amount to approximately a 40% loss of operating revenue for mohela and in respoe e government fenced offsetting costs, which they do not quantify a they do not show that that would significantly reducehenjury we are anticipating. >> mohela is not here, is that correct? itaseen set up as an independent corporate entity, thhe ability to bring suits ontswn. uslly we do not allow one rs to step into another's shoes and say i think that that rson suffered a harm, even if the harm is very great. we we we leave it to the person, him, her or themselves to make thatusce. thste has derived substantial benefits from setting up mohela as an

independent body with financial distance from the state and sue and be sued authority, so why isn't mohela responsibleor deciding whether to bring the suit? >> we do n dy that mohela could file a st ke that, but the states interests directly implicated, so it is allowed to assert the interest it has in mohela directly. >> there are certain parties all the timwhhave an interest in saying i wish that party over there would bring a suit, because i have some relationship withhat third party and i would like it very much of that third-party represented its own interests better in my view. but we do not do that. we do not allow that kind of interference with the decisio of the entity involved to decide whether thha is of the kind th they want to sue for. >> the government is different. this court has recognized that

in cases like cherry cto mills and ericsson where it has allod e federal government to assert the interests of federally created corporations. >> in those cases, e deral government had an independent interest. so the federal government was not saying we have an entlent to stand in the oes of the federal rporation. >> two responses. the first is i did not think that that is the best reading of cherry cotton mills. the urdiscussed a number of facts anathe end sd the reason why the government can assert the federal corporation's interest is because it is performing governmental purposes. that is exactly what is happening here. the state of missouri has declared everything mohe does is the performancef essential public function, so ats the first response. the second response is even if e state does need an test, the state has an interest here. identify at lst three. the first interest is that the state created mohela to provide financial aid for missour students and that is what it does. second interest isn e lewis

and clark discovery fund. the third is in the regular contributions that mohela makes to the state scholarship programs. there was some discussion earlier about the lewis and clark fund and some suggestion that it's a dormant fund that no longer exists. i think it is clear -- i think we need to clarify exactly what is the status. so yes, it is true that there has not been a contribution in the last 15 years, but that is because the state has negotiated wi mela for mohela in lieu of making the lewis and clark contributions tcoribute over $65 million directly to the state color ship program and in exchangeorhose agreements, the state has allowed the lewis and clardeline to be extended. so at this point, the question is what is going to happen at the next deadline? the next deadli icoming up next year and if the question before this court is whether cutting mohela 's revenue by 40% will increase the risk that either will not make the next contribution to the lewis and clark fund or it

will not make the next payment to the scholarship fund in lieu of the lewis and clark fund. >> that is what is most important to you now is the lewis and clark fund? >> no, it's not your honor. the state can speak directly to mohela, but i was speaking to the interest >> if mohela was really missouri, the loss of the servicing fees. my misunderstanding that? two different arguments, that argume a this one about the lewis and clark fund. >> i my first response to stice kagan i was trying to focus on the first area andhe second response where i got into the lewis and clark fund i was responding to the second. >> the first theory, it is hard to imagine how the statef missouri can claim an injury, includg e lewis and clark and scholarship issues -- putting the lewis and clark and scholarship issues aside, when it is not responsible for the deaths of -- the debts of mohela is not responsible for the contracts it enters into, it does not own the essence of that

corporation. there is on paper no financial obligation by the state or loss to the states by anything mohela es. or anything it gets. putting aside lewis and clark, it is just very hard for me to say that there is interest sufficient for the state to speak on behalf of the entity who has the righto sue. >> when this court ileon and when the missouri supreme court in cuay reciprocal exchangeonder whether an entity is a part of the vernment, it looks at a far re broad -- >> those are different issues. standing has to do with injury, it doesn't have to do with are you agreeing with the constitutionar you trying to delegate publifutions. 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 reli on injury in fact. i'puing lewis and clark aside, how can you have injury in facifou immunize -- you, the state, have immunize urself from any liability or any injury that mohela can experience? >> because the state speaks for mohela. the state represents mohela. >> they've decided to give this entity the right to sue and be sued. so it chose to say i'm not injured in fact. speakings t the same as injury. >> your honor the federally created corporations in cherry cotton mills and erickson had the right to sue and be sued but that did not stop the federal government, asserting their interest. in addition if we are focusing on the right to sue or be sued, the secretary has that right. that does not disable the department of justice from speaking. >> let's go back to lewisnd

clark a moment. the arrangement that mohela and thste engaged in it the pandemic, correct? started in 2009, 20? >> the lewis and clark fund? >> this is mohela' contributions. start in 2008. >> s't it a series of speculio that in004 absent this program, that the state will not continue that arrangement that it currently has and continue to defer obligations? mohela said -- they've already said publicly that it does not think contributions to the lewis and clark fund are within its wheelbarrow obligations. that was one of the reasons is arrangement has been made, correct? >> mohela recognizes that it owes $105 million to the lewis d clark fund. >> it is a fact.

i understandt not an obligation anymore. it does not carry it on its books anymore. your honor,f you look at page 20 through 21, the financial statement that we cite in o bef, mohela acknowledges it owes hundred $20 million to the fund. the scholarship program arend different sides of the same coin. the state has been constantly throughout the entire time from 2007 untilowas been constantly receiving payments from moheland those have taken the form sometimes of lewis and clark but more often recently, taken the form of scholarship contribuon >> have you expressed any plans to use the fund to pursue projects in the foreseeable futureanif so, what projects? >> at this point the projects have been put on pause. >> ic. so we're talking aut fund that has not been contributed into, because the state has waived the obligation to do so

for at least temporary and if the funds where to go into this particular fun --were to go into this particular fund, you do notave a set of plans to pursue them. >> all that requires his legislature and the vement to move forward. >> i understand but we are trying to figure out the degree to which the state is injured by the money not being there. son the one hand, 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 sayingo t worry. you don't have to put it i there. at seems to be a sort of stri against the state, saying we are so injured because the moy not there. then we have on top of that, your representation here that the state is not even actively seekingr terested in the money insofar ihas decided it igoing to engage in a project ate need the money

for. so i'm just wondering about the speculative attenuated nature of the harm that youre alleging on the basis of their t being -- or of the risk that we will not have exa ney put into this fund. >> i disagr tt the state hasaived it under the fund. in exchange for $6miion in payments to the scholarship fund, it has allowed the timeline to be extended. >> yes, i apologize. the state has not pressed mohela to put money into the fund. >> correct, but because it has be receiving money in another fund. >> i appreciate that, but i am trying to detand how you can look at that fund as the si for the injury that you are claiming with spt to this particular plan? >> your honor, because the next due date for the fund is a year

from now. >> and you cannot extended? >> it can be extended but that would be in exchange for them giving another contrutn to a scholarship fund whichs further showing that there are further naial contributions. >> the plan is not totally ridding them of any opportunity to make money, so they do have some other income, yes? >> mohela? mohela hasth -- yes. >> so he could believe that the incomehamohela gets fm other sources of revenue could be used to pay off in a year the amount that the state says it requires in order to put off the obligation yet ainright? >> here is the k pnt in response. what mohela says in the letter the government filed is that they take all available funds beyond expenses and reserves and vote them to student financial aid in missouri.

so if there are -- if their operating revenues are cut by 40%, we know what theyo th the excess money. they give it to students attending school in missouri. if their operating revenueso down, that's the first thing that's going to go. >> i would like to put aside e wis and clark fund and return to the direct injury gunt. justice sotomayor was pointing out statutorily, mohela has the right to sue and be sued. if the stateoenot have responsibility for liability' they have disclaimed a claim to the assets, is that corct >> i would disagree with the last point. i don't think the state has disclaimed interest. >> explained to me why. on the one hand you have in missouri stu 173.2, youave the last sentence says nothing in these sections should be construed to require the state and governmental subdivisions of their powers over assets or authorit inheext section, 425, it

says nast of the authority should be considered to be part of the revenue of the state. so which is it? it would be hard to see how a win for the state wouldenit mohela or a win for mohela would benefit e state if the assets are separate. do not get any moneyut of it, putting aside lewis and clark cause i'm not interested in that. >> to go to the second provision you read, 45, it says no ass othe authority shall be considered b part of the revenue of the state within the meaningf a specific state constitutional provision. so i would say that is only for a limited purpose. the prior provision that you read, where the state has prerd its authority over assets swshat any residual interest belongs to the state. we cited the reciprocal casualty case in our brief which shows

e legislature could abolish an entity like mohela and the money would come back to the state. the state has the ultimate interest in the property. >> if the state wanted money from mohela right now, if they want tpull assets because the atwas going to make a decision to fund the lewis and clark fund, does the state have the authority? >> acting through the legislature, it does. and i think the lew a clark fund is a great example. the lewis and clark fund s t created until 26 years after mohela began operations. at that point, the legislature saidouave tota giving this source of funding to the state. so the legislature can come in at any time and requesmoy. >> the want to address whth are not here? >> mohela is not here because the state isssting its interest. th dnot have to be here because e ate has the authority to speak. >> w can't the state just ma mela, then? it would be easier if they we

here, they would have standing. if they are a member of the state, white and you strong-arm them and say you have to pursue this? >> that is a question of state politics, but we believe as a matter of law that the state has the authoritto assert its interest. der the factors in lebron, under the supreme court recognized casualty reciprocal exchange, if it is a state-controlled and state created entity that performs government functions, the state can speak for it regardless -- >> t's true that you cannot ev g documents from mohela without filing the state equivalent of a foia request. >> your honor, that was the mem by which we went about acquiring the documents. >> thawathe mechanism. i think that if mohelaas willing to hand you over the documents you would not have filed a foia request. >> that further shows that they are a state entity, suecto public record laws, open meeting laws. they are an entity of the state.

>> when you see acting through the legislature in response to juice barrett, do you mean that sort of the structure of mohela would have to be revisited through the legislature? inther words, you have set it up. we have a law in missouri that structures this corporation in a certain way and it is separate. when you say acting through the legislature, do you mean that they 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 asse? >> it ulhave to be an act of the legislature, whether he tookheorm of amending statutes or whether it was a new stute, it would be an act of the legislature. >> on the merits, if i could dict you to the assistant general's argument, suggesting the major questis ctrine does not apply because this is a benefits program, despite our holding in at king versus burwl. d arguing that it does not implicate the appropriations clause of congress, can you

address that please? >> yes, your honor the whole point of the mar questions doctrine is to psee the separation of powers and it rests on the presumption that congress intends to address major questions. >> i understand, but this is a specific queio with respect to the benefits and the relationship between the appropriatns clause and king versus burwell >> the reason i reference the underlying doctrine and w exists is that those same reasonspply in this benefits context no less than they do in a different regulatory context. separations of powers is implicated because we are dealing with a congressionally created program. in addition ifing, i would say that there are more reasons to apply the major questions doctrine. what the agency is doing is exercising the pow othe purse by going into the federal banc sheets and crossing off nearlyal$1 trillion of loans payable to the government. ats a quintessential giative function, even more

reason that the doctrinehod apply. >> go ahead. >> i was just going to ask, that is the whole purpose of the heroes act? the whe rpose of the heroes act is to sa eitr for veterans are notor veterans, for people who are in military rvice or national emergency, we give you the authority to impose that on us. the forbearance of payment is a 5 billion a monthr something like that,n trageous sum. an yet, no one is disputing that the secretary has these powers. it's not the amount of money. the question is what is congress intent? and we know om the hca act that congrs recognized that there would be cancellation of debt for schools that close at least. why would you think that the

heroes act would permit cancons of debt for national emergency requirement? >> bau what congress said is tt the secretary has the power to waive or modify exting provisions. it did not give thseetary the right -- >> yes, it did. >> go ahead. >> general campbell, it says wae statue- modify any statutapicable to the financial assistance programs. and then it says the secretary can add it terms and conditions to be applied in lieu of such statutory and regulatory provisions. so it is reallyui clear here you could modifthold ones and then you can add new os lieu of the old ones. cgress could not have made this mucmo clear. congress did not say exactly the circumstances in whi it wanted the secretary to use this authority, of courseot.

this is a bill about what happens when you have an emergency. what congress said is what happens when you havan emergency is the secretary has the power to take care of emergencies. it has that power by way of waving and modifying any provision and adding othersn the loo of them. >> a couple responses. adding that language has tbe understood to mean adding along the neof a modification. it cannot be adding just anything the secretary wants. it has to be read in context with the tms >> or a waiver. it's not just modify, it is waived. modify, even if we take a kind of reading of modify, through mo major changes, all the way up to waive. and then, you can say what rm and conditions should be applied in liu of those provisions. congress does not get clear than that. we deal with ates that are

confusing, ts e is not. >> your honor, i disagree that what we are dealing wh is a waiver or modification. in terms of when we lookt e publication in the federal register, it says e secretary modifies the following provisions. so t sretary would purport to waive the loan discharge that s ted. second point that makes sense, because the secretary was not excusing compliance with a existing requirements. the secretary was ignorinthe requirements and creating brand new ones to put in place a brand-w ogram. the third point is again, we know there was not a waiver here because of affected individuals can continue to access all of those existing loan discharge programs. if someone qualifies for the public loan service program, they are able toccs it right now, so there was no waiver. l have is an attempt to modify, but this goes far beyond

modification, because it is the creati o a brand-new program that goes far bendhat congress intended. in fact, if congress -- >> do you think there is an ability to modify provisions reecng discharge? so, you owis there any ability? cause there are these particular discharge provisions, right? it has to do with death and when your school closesndo forth. so suppose the secretary says that is not enough, i want to do some more. >> your honor,he is a good example where the secretary has done it in the past that was acceab. in 2003 the secretary use the power in the heroes act to modify and existing reirent to access student loans and it was under one o those profession-based proamwhere you can work for a teacher for a certain amount of years. you can get into the program. >> suppose there is an earthquake. we wl e an earthquake instead of a pandemic. in the secretary says this is not enough, people are really

being hurt by this. so we have a provision about the borrower dying. the secretary says i am going to alert dischargers where the primary earner anthborrower household dies. can the secretary do that? >> your honor, i do not believe so because it does not sound like a modification of an isng program. it sounds like the creation of a new one. >> just from the borrower dying the crary is allowed to do that but the secretary in the face of this earthquake is not allowed to say -- or not just the boow, but t primary earner anthborrowers family. >> the question would come down to whether that is a modification. it sounds to me like it might go too far because it's crating a new progra >> very broad language. go modify or waive any statutory oregatory provision and come up with new ones and you'reot even going to allow me that? >> your honor, i was going to say even if that would be

sufficient here, it is nothing like this program. this is a program that includes 95% of borrowers, regardless of how they were affected by the pandemic. >> theectary says there were these or borthwick's and ts of houses were destroyed so i am going to discharge the ans of people whose houses were destroyed in this terrible earthquake. >> your honor itous to me like creating a new program. i do not think that would be ok under the heroes act. now what i wlday -- >> you know, this is an emergency provision. 's an earthquake. you don't think congress wanted to give -- and not just wanted. it's not what congress thought, it is what congress said, to gi the secretary power to say op have had their homes wiped out. we are going to discharge their student loans. >> your no when it comes to taking that stepo scharging loans, congress wanted to preserve that for itself.

congress acts in the pandemic. >> where do you see thatn e statute? >> the provision says any regulatory provision applicable to the student loa program, you can wave and add another to deal with an emergey. this inoa massive delegation to the secretary of education. it is designed to deal with erncy conditions. youave a lot of power in emergencies. when those people's homes are styed, you have the power to discharge their loans. >> but congress has a voi i emergencies and we see that through the react. >> congress used its voice, congress used i vce in enacting this piece of legislation. l of this business about executive power, we worry about executive power when congre has not authorized the use of executive powe here congress has authorized the use of executive power ian emergency situation, wherein that sphere -- you know, all

thoson? they are in that spherehere the executive is acting witcoressional authorization. >> your honor, i disagree that this is congressional authorization because it is not a modification. it goes way beyond that, it creates a landing program and that is not with the euros act allows if the heroes act did allow the wholesale rewriting of statutes whenever an emergency arose, that wouldree an issue, a constitutional issue under clinton versus the city of new york. you essentially would b allowing the executive branch to go in and reit statues after the fact and the exeti branch does not have that power. >> thank you, counsel. picking up on the destruction- discussion we been having on the statute issue here, how does it compare to the statutes that were an issue in our major russians dtre -- major questions doctrine? e breadth of those would by their terms cover the authority that the agency exercised. given the nature of the

authority and its consequences, that was not carnough. >> your honor, i think it fits within those cases and i would point the court specifically to realtors.ma association of in that case, the statute authorized the federal official to engage in actions that i thought in his actions were necessary or in his judgment may be necessary. yet this court looked at that language a sd it was not broad enough to authorize the action at issue the. thedc eviction moratorium and it did so because of the questions doctrine. justice alito? justice sotomayor? >> this is ssttially different because the secretary is authorized to cancel loans under hda, so this is not an ti as a moratorium on eviction, which had never occurred previously before or was not in the wheelhouse of the agency. at least thaishat the court said. i had a diffen of opinion. putting that asideth is not

an action that could come as a rprise because it i expressly permitted under the hea act and nothing in the heroes act says that the secretary cannot do something that is in the normal course of its business in circumstances that juifit like a school shooting -- closing or like a location. the are exceptions that are permitted under ha to cancel a debt. why would i have a view that congress did not understand at in a proper emergency, that cancellation would be right? >> i wouldo ck to my prior answer, which is there is a difference between modifying an existingoaforgiveness program in light of the national emergency, which is appropriate. an example of that is to tak the existing loan at discharge program for teachers -- and it has to be consecutive service,

say the reason why that teacher would fall out of the nsutive service requirement is because of the national emergency. it is ok to waive that or modify that. >> hat's changing the program. i mn, it is semantics. clearly a waiver is not extinguishing. whether you are rewriting it to say a national emergencwi pause your service years, the statute says you have to serve consecutively. and the secretary is saying you do not have to. you are rewriting the statute. you just want to say that this is a bigger rewrite than i like, but it is not rewriting the statute, it's just saying this application was terminated. this obligation to serve coinusly is terminated for thiserd of time. >> t is a bigger rewrite than

the words waive or modify. >> that really has us is the third branch of governme, changing congress's words, because dnot think wli what is happening. >> your hon - >> tre's 50 million students who are -- will benefit from this today. they will struggle. many of them do not have asss sufficient to bail them out after the pandemic. they do not have ies or families or others who can help them make the yments. the evidence is clear that many of them will have toeflt. their financial siatn will be even worse because once you default the hash on you is exponentially greater. you cann g credit, you are going to pay higher prices for things. they are gng to continue to suffer from this pandemic in a way that the general population does not.

and what you are saying is now what we are going to give judges the right to dece w much aid to give them. instead of the person with the expertise and the experience, the secretary of education, who has been deang with educational issues and the problems surrounding student loans. if we are going to ta iapart ourselves instead of leaving that decision in the hands of the person who has experiee with question. >> there are additional statutory clues showing congress did not intend the creation of loan discharge programs. i point to section a2d. there congress identified a instance where they can excuse the return ofunding. that was grant overpayment. >> that was an emergency or a situation that was so generous.

that is what emergencies are. a few genousituations that the secretary can address in a rticular 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 loan discharge programs. >> justice kagan. ste gorsuch? >> i understood the office of gal counsel's memorand t suggest that the secretary under the statute had authority to put student borrowers in the same condition that they were in prior to the emergency and the nature of your arguments that test is not met. you agree with the position and understanding of the statute and how you argue that it succeeded that authority? >> your hori disagree with

most everything in the opinion but i agree with thapa. i think it is right that that is what the phrase no worse position means. it means congrs s telling the secretary that he had the thity to keep ourors near the status quo. but what we have here is a program th for 20 million boows will leave them without a single outstanding lo. that goes well beyond putting them back in the status o. and for the other approxite 20 million borrowers that stand to benefit from this, their average debt is going to go from $29,000 to $13,000. again, far beyond returning to the status quo. >> i understand the secretary has considerable expertise when itom to educational affairs. but in terms of macroeconomic policy, we normally assume that ever secretary cabinet member as learned as they are has that kind of knowledge. >> no, we do not. when we are dealing with a

nearly half trillion dollar loan canclaon program, this is squarely in the camp of congress. congress has the power and expertise to weight the balancing competing physical implications, particularly at that scale. is is something outside of the secretary's expertise. >> justice kavanaugh? >> when we are talking about emergency powers, that focuses, buthat does not mean that the executive cannot takacon. it all turns on the -- ihi the language of the statute at issue in the kind of action taken, a good argument on modifying, what do you do with the wo waive? that is an extremely broad word. in 23 ngress was very aware of potential emergency aions in the wake of september 11 and war, possible terrorist attacks. yet, it puts that extremely broad word waive into the

statute. why not just read tha as written? >> yr honor, i believe we are reading it as written. waive means to excuse compliance with an existing obligation and what t sretary is purporting to do here is to change existi loan at discharge programs. the secretary is t waiving anything in those provisns so we think i plane earlier that the word waiver does not apply. to the extent that the court looks at the term and finds that that is cause to read the phrase waive or modify a tt more broadly, it does not reach this program. the secretary is not dealing with any of these existing provisions that he purports to site. he is not changing anything within them. he is frankly ignoring what is there and creating a brand-new program and that is not within the language of the ate. >> you do not thinth fits within waiver? >> i do not thk does, no. waiver is te something away

and the secretary is not taking anythingwafrom the cited loan at discharge provisions. >> hen on the body of precedent we have veped within the pandemic on emergency powers and major ecuve actions, we have the eviction of moratorium case. we have t national mandate case and on the other hand we have theealth care case. one of the distinctions was that wa more in the wheelhouse of the agency in question. i think the sicor general has argued theesnse on it this is right in the wheelhouse. justiceotayor is saying that is right in the wheelhouse of what the secretary of education would noal be expected to do unlike cdc going in with an eviction moratorium. i know you have addressed this a little bit, but to get your response on that. >> i don't think it's ith wheelhouse because it's crating new progra

the only eity that has created new loanisarge programs is congress. there are 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 ac as i mentioned, the heroes act has never been used to forgive a single loan in the past. that is telling because one of the things of the court looks at in its major question of jurisprudence is if it is unprecedented. we certainly havan unprecedented use of the statute here. >> thank you. >> justice barrett? >> first question on merits. do you aeehat this administration a privatizations had authorization under the heroes act to us loan repayment obligations? >> your honor, we are not challenging it in this case. >> i know, but the question is do you think it whin it. this kind of goes to the scope of waive or di, right? >> yes. i think that -- so, if i can g

to the timeline to explain, the first seven days on march 20, 2020, secretary devos waved but did not indicate whateg authority she was using. i have no way to assshat, because i just do not know what authory e was using. then congress came iseven days later and enacted the cares act. it put a payment pause in place for six months. at the end of that six months, the secretary extended it for three months. i think arguably, that was a legitimate usef e heroes act, because taking a congressionallyreed six-month program and extending it for three months seems like mht be a modification. but now that we are two years down the road, we are beyond the modification and not only that, the connection to e tional emergency has become even more tenuous. >> your argument is that even assuming the secretary initially had the authority to -- you are kind of just riffing on the question about before the cares acwa passed we are talking about after the cares act, you

had authority underhe heroes act to extend the pause but then at some point as the time drive don post the cares act when the administration came in it exceeded the authority to waive or modify? >> yr nor it could have been the secretary and the two extensions. i don't get hinges on who the administration was it goes beyond modification and the connection to the national emergency became too tenuous to maintain. >> so it is t that a pause is different your mind then caelg the obligation to repay theriipal, or it is a combination it's the temporal. >> the pae intains the status quo ia pause keeps indebtedness from rising.

in addition you pause in place, there is a difference between that and a national emergency. the secretary having time to contemplate -- the connection to the national emergency is too tenuous. >> t second question is on standing. >> mohela is a state-controlled entity the leadersh o missouri is not selected by the government or the state, eyre selected at the local level. >> justice jackson? >> so c iust understand uriew on waiver or modification with respect to the

inial applications of this authority. we are in a certain species of it now that i understood from the sg and the briefs that originally were talking about wartime and si'm just trying to understand, are y saying that those were not legitimate waivers or modifications under this kind of power. >> your honor, we do not question any uses of the heroes act prior to 2020. >> writes, b wt is your view again -rit, but what is your view again? i'm trying to clarify your exchange with justice kanaugh on what waiver means. you're saying the seety would've had to change something about the regulations, but not about their application with respect to the obligations that they require of peoe? >> your hor, if i can try to ilstte with an example, i ink this might get to it. there is an existing loan at

discharge program fopeanent disability 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 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 one of the existing requirementsnd that is not what the secretary is doing. >> i understand. but i guess my queio is do u spute that under the prior circumstances, people owed it rtain amoun a what the secretary did was modify t amount that they would owe as a relt of this ln? >> your honor, i think that i exactly what he was trying to do and i think that highlights why

there is a problem he. let me direct to the court t the statute that we site on pages 46 a 47 of our brief. congress knows h to authorize the seety to waive or modify the amount owed. we say provisions in the higher education act that specifically say the secretary shall wave the amwed. here, the secretary was not that language. if the secretary instead was given the power to waive or modify provisions. so that is why the analysis here -- >> why isn't it all reduced to thsame thing and this is why go back to the original so we have wartime people who are away and you say you have no problem thhe secretary modifying the regulations in so far as it would help them. but doesn't it reduced to just them not having to pay as much? don't really understand weather is a distinction between the regulations and the way that you are reading this. and wanghe amount a person

owes under a regulation that relates to a loan. >> your honor, there has never been a past ushe heroes act that would eliminate the amount that someone owes. i do not think there is a prior comparison to look to. >> ok, let me ask y one final question on my big picture concer i was listening carefuy your opening statement and he started by indicating that this is one of today's most debated policy questions. and you ended by saying that we, the courts, should essly answer it by invalidating this program. and wt concerns me is that to th extent you are talking about separation opors in nature questions, the judiciary is part of the same constitutional separation of powers dynamic. thatomls 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 polic fray unless we are prompted to do so by a lawsuit bug by someone

who has an actual interes so this is why i am pressing onhe standing point. do youiste that the standing would be a plaintiff cannot establish standing by asserting the interests of an independent actor or by saying an independent actor before the court will respond to the defendants actions in a rtn way. isn't the ordinary rule one that really does not cover you a what you are asking for is an extension of our standing principles, to allow for the state to proceed with this action? >> i do not believe so. whate are asking for is the same treatment of the federal government gotn cherry cotton mills and erickson. we are askinfothe ability to assert the interests of the public corporaonhat the state of missouri cread,hat it cat -- controls and that it icharged with performing nothing but essential factors.

>> if we go back and find that the government at a separate interest that it was asserting, do you lose -- is that your only se that is going to make ibe the case that we can find standing for you? >> >> those cases are certain he helpful. i uld direct the court if the court wants lk under either federal law, to see what takes to be a part of the government, i would direct the court tleon and the department of transportation that we cite. dyou reject the distctn that that the sg pointed toith respect to what those pieces were about? those were not standing cases. we have different doctrines that appl we were looking at diert issues and the issue of whether or not youre injured by an inju tanother entity, an indepeencorporation, seems to me to be a separate thing. do you have a case that would help us to understand whether an entity like mohela, that has

totally ensolated through state law fromiality in the consumer fortsf etc. you have a ce where we've said that same kind of entity, you can suez a states because you are injured for standg purposes. >> the closest cese have the ones i reference before, cherry cotton mills and erickson. part of the inquiry has to look to state law to see if missouri is charged with speaking, has ablyo eak on behalf of mohela and on that front i would point the court to dohings grade one is missouri statute 27.06. -- .060, which gives the attorney general the right to determine wheth tlitigate in the name of the state, to ott any interest of the state. and because mohela is a part of the state, and the second point of that i would direct the court to is the casualty reciprocal exchange case, that is the case

that specifically identied what it means to be a public corporation under missoi ate law and then identifies the same factors level braun looked to. weather is created, ctrled and performing essential purposes for the governmen >> thank you. >> thank you counsel. rebuttal, general? >> thank you . ief justice. i will focus on the mohela related argument. justice barrett, you asked abo the prohibited -- the provision. this is missouri reserving rights over assets of mohela. in context it is a savings clause. making clear that e other provisions we pointed to light 173.425, point 410. these create the strict separation and missouri is seing its rights under sources olaw like eminent domain or search and seizu and it is not actually limiting its abilittobtain assets in that way.

i understand my friend who have conceded, but actually missouri would have to changetsaw and the structure if it wanted to have any direct access to mohel 's assets and that makes sense because these other provisions are very clear. there is ablu financial separation between the state and mohela. yoasked about control over mohelahich my friends emphiz, this is one of the relevant questions under the arm of the state doctrine, whether good direct authority in any way. i point to justice kavanaugh's decision in the d.c.irit of the puerto rico port authority ca. it is gnicant that you can direct the authority to sue and that ilacking here and the state has not attempted to do that. my friend at several times ought up the cherry cotton mill and erickson cases. in cherry cotton mill, there was an expressed stury right of the united states to tax offts and the court was interpreting that lgue and determined that the united states had its owinrest in the statutory ght and further emphasize that with rescto that public

corporation and reading from the language of the court's opinion, that for the pli corporation, its profits, if any, go to the government. its losses the government must be. there was not financial separation in that case that exists here and there wa a statutory right on behalf of the uned states. erickson is further afield. it was not a casabt standing and the united states had a contract right in the inch mentality had entered into as an agent of the federal government -- it was self-appointed and there was no article three issue in the case. finally i will focus on the contributions to the lewis and clk discovery fund. this is the secondary argument as it relates to mohela. there are factual diciencies in trying to premise standing on that basis. as we have a cim, they have not been able to bring forward allegations that would substantiate the asserted financial impact from he and certainly have not established that that will be the likely cause of any default to

a fund in the last 15 years. but there is a fundamental legal problem with their theor it has no logical stopping point. there is nothing for example that would prevent anye ed a debt to say that they hav standing to challenge a regulation that does n affect them in any way, becae it might affect the debtor who then would be unablto make good on that lbity. and tre is no precedent in this courts article three doctrine to support that kind of broaexnsion of article three standing here. turning to the merits i want to pick up on the callhamy friend was having about the ang of the term ivor modify and if i understand because he is putting on that language, i don't think there would be a rm to grant heroes act relief. he said there is no waiver or modification, but there was. the secretaryoothe provisions that deal with discharge and cceation and waived the existing igibility quements and modify those provisionso add an additional basis for relief. this is how secretaries across

administraonhave a moment to thheroes act. for example, with defermentth secretary and prior uses of the heroes act to provisions that exisfo deferment and wve the existing eligibility requirements and granted additional defermentn-line with a national emergency. that fits with the language of the statute and to suggest that that creates a brand-new program would leave little room forhe heroes act to operate at all. my friend igetting it exactly backwas. the fact that there are statutory provisions for things li derment and forbearance and discharge demonstrates that congress could foresee that all of those are ways that you grant financial relief to student loan

complete mismatch for t relief they seek. they claim to want greater loan forgiveness than the pla provides, but they ask this court to hold that the heroes act does not authorize loan forgiveness at all a win on that theory would mean that no one n t any heroes act relief, not brown, who would get nothing for herself; not taorwho would lose $10,000, and not any of the millions of borrowers who need this ital relief. respondents lack stainto seek that result. parties cann gto court to make themselves and everyone else worse off. to get around that problem, brown and taylor gesture at the id that if the secretary cannot act under the heroeac he might consider making an entirely differentecion to grant debt relief under the education act. but on the merits, respondents are broadly attacking the idea of providing loan forgiveness

under any executive action. they never explain why they think the secretary could providbrder relief to even more borrowers under the education act. in any event, thisou has never endorsed that circuitous route to stain a plaintiff who was not injured by ancaction cannot establish action by speculating that invalidating that action ghprompt the agency to take an entiry fferent action under a different statute. if the court reachesheerits, it should reject the spdent's claim. they argue the plan is unlawl because the secretary did not use certain rulemaking procedures. but congress specifically exempted the secretary from following those ocures when he issues waivers and modificaonunder the heroes act. respdent's procedural claim fails in light of that clear statutory exemption. i welcome the court's questions. justice thomas: are there any instances in which you would have procedural standing? . elogar: i think that if

they wanted to argue that th secretary should have reconsidered his decision under the heroes act to granbrder relief, then it'possible that they could've raised both a procedural claim and a substantive claim because at th point, their injury would be redressable. they would be saying that the secretary drew arbitrary lines, that the plan should be expanded to include them and to provide reef to them. and that would be a very straightforward route to making the arguments if what ey really want is loan forgiveness. but instead, the wle argument here is that the secretary can't give them, or anyone else li under the heroes act. and when you look at that way, there iso se that we've been able to find, and we've really trd boil the oceans here, that could plausibly support that theory of procedural ju. it would blow open the doors to asserting article three injury when you are not decy affected by an agency action, and by your own lights, you cannot stand to benefit from any ruling on that agency action merelyecse you think that if you can block it, the agency ghreach out and look for some other source of authority to regulate and make a new

action. justice sotomayor: this action has nothing to do with their right if they thought it was permissible to seek relief under e education act, correct? ms. prelogar: that'coect. it is a totally different source of authori. if they want relief and the education act, there a rief where they can find relief right now. and it's t if these are mutually exclusive sources of authory,ut the education act is not directed to national emgeies. that's an independentoue of authority here. and it's the t ey're challenging that specifically focused on this agency, this national emergency situation. i understand your argumentand i know that this is not on point, but this is sort of like the equal proteconases, where discrimination between men and women on the level of pensions andheomen, the widows get more, and the challenges brought, and the arme was, well, if you went,

we are going to take the excess away from the widows. and so you'reotoing to get anything. so you don't have stain why is that case, i appreciate the way in which it is different, buthys that mom at leh eyan rely? ms. prelogar: tnk that the equal protection cases are fundamentally diert, because there, you injury is your complaint of an equal treatment. and so, whetr u level up or level down, your injury is being re-dressed. you are no longer be subject to unual treatment, instead, everyone is being subject to the same treatment. in this case stands in aer different posture, because, hear their argument i o injuries are not getting loan forgiveness. and the reef that they are seeking, which is a declario that the heroes act does not authorize loan forgiveness in the first place, ds t redress that injury one bit. they carved into stone.

justice roberts: right, but without looking after the case, yes yocod lower it or raise, it but that is an uncertainty that we decided that that did noafct the right to bring the action, because it may b change in a particular way. and i suppose thr gument would be that they are injured, for not being participinin the program, the program is struck down and its current form, it maybe cngin a particular way that would help them. ms. prelogar: so i think that there is though a complete disconnect between the claim of injury and it is true that an uaprotection contest, you don't know what the remedys going to be. buthe court has determined that that does not prote standing, because of the, way no matter what remedy occurs, based on equal protection ju, it is going to fix the nature of the harm of providing an equal treatment. and here, the only certainty is that if they prevail on their clai, is going to make it harder to provide them or anyone else with that relief. their suggestion here, the secretary wholly lacks this authority under the heroes act, and their assertion of argument to support that claim that

brattacked this whole concept of loan forgiveness i think demonstrates that we are far from the equal protection case law. >> can i just ask, you i' understood them to be complaining about the procedures. am i comety off base here. are you suggesting that they' complaining about not getting ou loan forgiveness or something. maybe hed you. but i thought that they were ying to bring a procedural claim and that the reason y this was problematic was because the procedures that they are saying are lacking are auay under the other source of authority. but if we looked at the source of authority tt e secretary used in this scenario, it does t arantee them those procedures. and so you can't reallyomain about knocking procedures and another statute that was not invoked in this situation. am i wrong about this? ms. prelogar: no and, i understand the confusion, because the eo here is a little convoluted. let me tryo pack it. they are asserting a procedural injury. but what they are saying is that we want an opportunity to coenon loan forgiveness that will include us as well.

our underlying injury isha without having a chance to comment on the secretary's use of authority underheares act, we did not get a chance to advocate for us to be included in the plan. the obm with that procedural theory of harm is that by thei own arguments in the case, the secretary could not make a different decision. he could not go back to the drawing board and thk out it and decide, yes i am going to expand the plan under the cares heroes act to provide these borrowers with relief to. and so they are not leo assert that kind of address ability for certain procedural injury under t hoes act. justice brown jackson: that's because there are not negotiated predes and appear as? ms. prelogar: right, e statutory tax is very clr. so even if we were to get to on the merits, they haven't actually been depredf any procedural rights. the heroes act scies that weavers of modicions issued under the heroes act are exempt from comment. but i think because of the fundamenl aw with your theory of injury, and the fact

that it couldn't be redress by theiowarguments in this case, they have now brought up this education act idea. they have not been depriveof any procedural rights under the education act. procedural rights derived from agency conditions under agency authority. and so it's not as though they have any procedural right in the ether to just comment on the concept of loan forgiveness writ large, but ite, under the heroes act, as we have just discussed, there is not a notice and comment procedural, right unr the education, act no decision has been made. and so they have not been deprived of any prede associated with that decision-making. justice brown jackson: so what they wou nd, i would suppose, that if we notify the authority of the secretary to do y of the secretary to do what it did in the heroes act, that they would necessarily be the alone rgeness program under the aga.

ms. prelogar: yes, and they can't make anything like that showing here. it is total speculation on their part to suggest that if the secretary is blocked from taking this action, maybe he will look for a different source of authority and issue an entirely different program under that source of authority. and i think that shows that thr eory is utterly speculative here. think it is important to recognize as well as whyhe are pressing this claim and the upshot of this theory. the reason they are ki the court to go down this road is so that they can effectively raise a substantive chlee to the heroes act. that was actually thon claim on which they prevailed below. the distri crt 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 idhat it was an awful under the heroes act. but they have now entirely abandons that bas r prevailing below. they say that the district court is wrong to considerthat they are not defending that ruling, it makes good sense, because they obviously like standing to o intain a substantive stand-alone challenge tohe heroes acts that would not do anything to address their harm,

but instead, just su that they're not going to get any debt relief. by raising this procedural argument thoug ty are effectively asking for an opportunity to raise the very same ssttive claim that they lacked standing to pursue rough the guise of a procedural challenge to the act. there is no apparent reason r the court to allow that kind of gambit and to take what is actually a substanvehallenge based on a generalized grievance with how the executive is administering the law. and alter the ordinary or article three standards to allow plntfs to revisit that conclusion through a procedural mechanism. >> general, i appreciate your standing arguments, and i think they've been laid out very clearly here. an interesting feature of this particular case is, as you well know, that the court enter a universal degree. decree. we have chatted about this in prior cases. . elogar: whave indeed,

justice gorsuch: i just wanted to give you another chance to talk about universal vacature with somofy friends here. if you want it! and if you don't, that is fine. ms. prelogar: i will always take at opportunity. we did argue below thath district court did not have authority to enter -- and this case, and the language the courts had relied upon and thinking that this is a permissible remedy under the apa -- justice gorsuch: for handful of plntfs. ms. prelogar: for two individual rrowers, the set aside language, and that languag comes from section 706 of the epa, if you lo bk and trace through, what congress was doing when an act of t a, it was not meant to be the remedial provision of t a. instead, that comes from section seven of three, which looks at a special statorreview provision of one exists, and sometimes erare special statutory review provisions th say that you can operate directly on the agencyctn. and it's the traditional equitable mees that predated the apa, and there's nothing like the remedied them that we take you far beyond party specifically.

justice gorsuch: talk about a wa in which courses -- courts can interfere with the pross of government through two individuals and one ste o don't like the program to seek and obtain universal relief barring it from anybody anywhere. ms. prelogar: that's gh for millions of americans they've been able on the basis of this plan to hold up that critical relief. >> and if they had standing, they can bring such a claim, and i guess your position, which is not in this case, because they d't have a position about universal vacatur, but your position is that, what the crt es not 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? ms. prelogar: to be clear, we are not suggting that injunctions would be off of the table, but those two would have

to be rged to party specific relief. >> justi bwn jackson: how would it be targeted ia an such as this? ms. prelogar: for example, if in fact they had standing to pursue a procedural, right the secretary would be enjoying to pride them the process that is due. we do kento account that the views in determining to expand eligibility under the program. anthe thing about that, justice jackson, it cod yway conte question whether other ople should -- justice brown jackson: understand, but ulyou have the same we action to universal vacatur if the claimn e table was about their particular entitlemt getting let's say more money under this plan. would we be in a world if you e ght, about universal vacatur, in which every single borrower in the country would ha to bring a lawsuit in order to vindicate a right that e court would say these two people have. ms. prelogar: i think in a situation, it denda little bit on what court you are talking about. this courtashe authority to resolve issues like that for the entire nation. if a question makes its way to this court, then it would not be necessary to have the ll on suits. in the absence o tt we -- are argument is that you should

provide paiepacific relief. that the traditional concepts of remealuthority under article three were limited in that way, and that to instead allow ng district courts throughout the nation to claim thpor to put a critical policy on hold, it is out of accord. >> the last time that we do, thry mber -- >> this is go take a while! we can go into this, but [laughter] >> so i am just going to change the subject. [crosstalk] >> i would like to hear about the merits oth case. i want to come back to some of the claims that both sets of respondes re have in common to deal with what we call the arbitrary ancaicious aspects of the case. d st i understand, it the memorandum really talks abou two things. it talked about forbearance and

talks about economic sla cid conditions. forbearance, as a pate thing, the pplhave been granted forbearance from long periods te, are more likely too to default or become delinquent and their payments. and i guess i wonder, isha about covid, or is that just about something th hpens when you excuse loan payments for a long period of time. and how is it that that gets to be converted into emergency covid rationale. justice kagan: and then, on the economic consideraon and i think it was justice barrett who talked about this a lileit seems a real mtu of covid and non cod lated things. of coue,his is how the economy works. covid interacts with other features of the economy to produce certain economic conditions, but again, i am wondering whether there was more of an obligation on the part of the secrarto isolate how

covid was affecting these boows. ms. prelogar: of cours a i will take each of those considerations in turn. i will start with yo qstions about forbearance. i want to be really clear, because i thinmyriends have confuse the issue about this a little bit. but the crary was not fining that forbearance itself had cause the economic harm to borrowers or that it was the root cause owhthey needed additional relief. instead, the secretary analyze the historical data regarding forbeanc as a data point and understanding that forbearance is not a complete solution to e derlying economic harm caused by the national emergency. so, here there's dbt the forbearance has provided very powerful and critil pport 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, beusof covid.

the forbearance policy as not fix the underlying economic harm of the pandemic and the emergency. and to the effect that there is a ottrapping concern, here i just want to push back forcefully on the. i inthe secretaries defeated -- memorandum makes clear th sometimes additional relief is necessary, not because of forbearance, but in spitof forbearance. to turn your question about the various caesr influences that cameron here, it is of course true that i cannot make a representation that the harms atorrowers were facing are solely due to covid-19. and i think it would be an impossible burden to place on thsecretary to suggest that he needs to isolate and identy just one economic factor or force that is causing a kind of distress for borrowers our economy is very complex, and they're often multiple factors and forces at play, t e secretary here found, and don't think anyone could reasonably dispute, that r vid, borrowers would not be in the situation facing severe

financial rmand the very real risk that they have to go into default or delinquency when th srt repaying the student loans. and so i think to the extent th there is concern here about how the stated cooperate, t very least, the secretary me the requisite findings that these are financial harms that -- as a result of the covid pandemic. >> counsel, i'm sure you misreading the graphs, and i'm looking 247, 248, but d't half of the borrower say that they would not have any trouble paying their loans without regard to the forgiveness program? ms. prelogar: it varies based on income bracket and, yes it is true that in certain income brackets, the data i think reflected that 51% of borrowe eected that they would be unable to pay their student loans. that wasn't the only data that the secretary consulted though. in the same studies u reference, there was a general data about levels of financial insecurity and orwlming majorities of borrowers expresd ge financial in

security concerns about their ability to make ends meet going tose in the future. i think one of the importa things to recognize again as i had mentioned in the last argument is that it'not necessary for the secretary to make a finding that each and every borrower who receives lief under this plan would have necessarily gone into default or delinquency without it. >> no, of course not, but it does kind of factor into the consideration to have a situation where you don'have noti cment in proceedings, that maybe again that is something that a broader prentation of national interest in congress would tak into account rather than what thsecretary in the particular case he was winning a lot options and considerations as well will take intacunt. i mean if rehan half of the people say they don't need this relief, extending relief to that breadth certainly raises queson ms. prelogar: so let me be clear, but i think there is an avenue to address those kinds of questions with over brea. i do not think that it's a function of stator

interpretation though. that would be applications of the statuttoarticular fact patterns, and whether the secretary could justify the lineth he drew in the level rief that he decided was necessary. here secretary cardona explained that huge numbers of borrowers we're goi tgo to default delinquency and it's not as though that they could say that he was 50%, i know it will happen, percent were won't. if youanake a kind of determination, it might have a basis to determine that he shldave drawn different lines. but we don't have anythinli that here and we just want to get to the forbearance pic that is applied across the board and every single sde loan borrower with a federally held loan for the lt ree years. but i think that both secretarieacd entirely within the domain of the cares dd ass relief was necessary to the particular agenc this emergency. >> since we're dealing in a case with individual borrowers or

would be borrowers, i think it's appropriate to consider some o the fairness arguments.

you know, you have two situations, both to kids come out ofigschool, they can't afford college, one takes alone, the other says, well, i'm going t my hand at setting up a lawn care service. and he takes out a bank loan for that. at the end of four years, we know statistically thath person with the college degree is going to do significantly financially bett or the course of life than the person without. and then alo ces the government and tells that pers, u don't have to pay your loan. nobody iteing the person who is trying to set up the lawn service business that he does not veo pay his loan. he still does, even though his tax dollars are going to support thfoiveness of the loan, for the college graduate who is no 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 viewsn e fairness of that and mind don't count. we would like to usually leave situatio othat sort, when you're talking about spending the government's money, which is the taayers money, so the people in charge of the money, which is congress. now, why isn't that a factor that should enter into our consideration on our major questions -- where we look at things a little moretrtly than we might otherwise, when talking oustatutory grants of authority to make sure that this is something that congress would've contemplated?

ms. prelogar: so, my reaction to that, mr. chief justice, is that congress did take those kinds of considerations into account and ecifically providing this authority to the secretary i think that the same kinds of arguments -- justice roberts: it's just circular. it sort of begs the question to say that first, i don't see any evidence that they took the personhos trying to start the lawn service because he can't afford college. di't see evidence of the took him into account. ms. prelogar: but if that's what congress would need to take into account and show, then it can't legislate, it capride the executive with pre-authorization to take action into an emergency. congress cannot look ahead to the future and say, okay, in the year 2020, when an unprecedented glob pdemic hits, we've decided that the long care professional should, you know, t nefit from this program. justice roberts: you areelng on an interpretation of the statutory authority, to sath that's implementing congress's intent to do that in pdemic that they couldn't have foreseen. we do think, no, they would have foreseen the idea when they said, di your way that that would mean waving the whole liability r million americans at the cost of half one trillion dollars, that they foresath enough to allow the secretary to act without any express congressional authority. y re express congressional authority than the authority underlying.

ms. prelogar: let me break it apart into two different components becse think there's a first order question of whether congress could have foreseenheossibility of debt discharge at all. and i think the answer to that has b yes. that was a well-established form of relief that you can provide toorrowers in hardship tuations, as i previously mentioned. it's one of the core provisions in the title four, and congress, and specifically enacting a statute th's aimed at this problem of not leaving borrowers worse f reaction to a national emergency, clearly understood that using -- justice roberts: i'not -- i'm not fainyou for repeating rats or, since i think i've probably repeated my question. but you are just saying, it's the same argument about what modify and wave means. ms. prelogar: it means that the atutory matter on the chemical argument about discharge now, you've asked me several questions about the scope of this program, and let t to be responsive to that. i recognize that this is a big program, but tt's in direct reaction to the covid-19 pandem, ich, itself, was a really big problem.

the s not been a national emergency like this in the tim that the heroes act has been on the books, since it's affected this many borrowers. so, i think it's not surprising to see in response to this once in a century pandemic the kind of relief athe secretaries of offered here, the forbearance policy that has itself cost 150 billion dollars and now this loan forgiveness program. to the extent that you have coerns about the scope and size of the program, thoug i would say that if i can't get ca, and maybe i c't on this point that the categorical that discharge argument does not work as a staturyatter, then i think that the right ways to look to house those concerns is anrbrary capricious review. we think here that the secreta drew reasonable lines in crafting the scope of relief. but if you disagree or y tnk he should have taken different interests into account, that be a basis to reverse him on capricious grounds, not to distort the claim meaning of the es act. justice roberts: thank you.

justice alito? justice alito:el the secretary did what he did, so presumably, he had and has a view abo t fairness question that the chief justice posed to you, do, what is that view? ms. prelogar: so, the secrety understood the statutory thority and mandate here, to focus on whether this tial emergency was going to leave borrowers words off because of the pandemic. this is congress deciding that the vement should be in a position tpride benefits solely with of the context of the -- program and i don't think there's any pa othe statutory analysis, this is congress's judgment tha borrowers should be able to get li if the secretary makes these determinations. but no suggestion that the relief should turn on or off based on the possible imcton 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 might have otherwise impacts outside the program. wanted to make sure the secretary could provide relief

to borrowers. justice alito: was the secretary legally obligated to do what h did? ms. prelogar: no, not required to provide relief. justice alito: so dided to do what he did and must have had reasons for doing . and some of them are on the record, some may not be. but the secrar if you are right, then the secretary presumably could do more. and therefore, i think it's a fair question to say, what is your client's view authe fairness question that some people have posed? and that was reiterated for you by the chief justice ms. prelogar: the view of the dertment is that this is warranted. justice alito: why is it fair? if you didn't have to it, why isn't the answer to say that it was wanted? maybe it was wanted, but why? i guess you don't want to answer ms. prelogar: it was fair because in the absence of this reliefi's undisputed that there are going to be millions of student loan borrowers who arnot going to be able to pay their student loans.

they will default in delinquency, and theers act was specifically designed for the 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 heesct is operating right within his domain. justice alito: all right, i will try one more time. why was it fair t people who didn't get arguably comparable relief? not maybe atheir interests were outweighed by the interests those who were benefited or they were somehow less deserving of solicitude. but what's your answer to that question? ms. prelogar: my answer to that question is congress has already made the judgment that when there aational emergency that affects borrowers in this way, the secretary can provide li, and you can make this critique of every prior exercise of heroes act authority. there to, you could say, well, that only benefi t specific

enumerated affected individuals, but it's congress who defined those individuals and the secretary acted properly here in ng them relief. >> justice sotomayor? justice sotomayor: i think your bottom line answer to be, everybody suffered in the pandemic. but different people got different benefits because they qualified under different programscoect? ms. prelogar: that's righ there's been enormous relief. juice sotomayor: there is a parent on fairssn society because we're not the society of limited resources. every law has people who encompass it or people outside of it, correct? ms. prelogar: that is correct. justice sotomayor: and that's not an issue of fairness, it's an issue of what the law protects. ms. prelogar: yes. >> justice kagan? justice kagan: i mean, congress passed a statu tt dealt with -- payment for colleges, and it didn't pass a statute that dealt with a loan reymt for loan businesses. and so, congress made a choice, and thatayave been the right choice or it may have been the wrong choice. but ats congress's choice.

and you are saying that the secretary implemented his powers decongress's choice, which gave him authority over loang ov. definitely did n ge him authority over loans for long care. ms. prelogar: that is correct. the secretary would have no authority to act outside the udent loan program. the heroes act is specifal designed only to empower the secretary with respect to that portfolio. justice kagan: maybe as 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. t correct? ms. prelogar: yes. >> justice gorsuch? justice gorsuch: i just wanted me sure i understood your position with respect to some of the gnarly language in this statute, wchs waiver modify. affected individuals to ensure they're not placed in the worse posioninancially because of the covid crisis. yowould agree that doesn't authorize the secretary tola persons in a better position than they were, because of the

covid crisis? ms. prelogar: so, i agree that the purpe to ensure that they're not worse off, but i would disagree in so far as it's clear that he can provide classified relief. so, if it turns out that the end of the day that some individuals argetting relief that turned that wouldn't have ndeit, congress tolerated that and, in fact, encourage the craries -- justice gorsuch: you think the statute is not just authorizing the secretary to place people in the same position that they were prior to an emergency but to alw e secretary to place persons in a better position than they were prior than they were? ms. prelogar: no, i'm sorry, let me try to clarify. the purpose has to ensure that they're not left worse off. justice gouc but the effect can be? ms. prog: some individuals in the class receive relief who wouldn't otherwise needed, that doesn't mean that his plan is invalid. but if i can rpo to your question about better off, worse f. justice gorsuch: i'm rr let me pose a different queson so, some persons can be better off is your position. i guess how many is my next questi, ght? let's say to people in missouri,

okay, all right, they're better off, fine. but wh iit's 90% of the class, just hypothetically? could the secretary do tha under the statute? ms. prelogar: so, i thinthe right way to analyze that would be arbitrary and capricious review becauses've just explained within the statute tolerate se er breath, and so at that point, we have to look at the secretary's justificiofor his action. it sounds to me like that could be ueanable, that maybe he wouldn't be able to justify that particular line drawing choice because it's so extensive relief that isn'actually necessary. one of the things we want to look at is whether there was a way to tailor it, whether there is a way to segregate the people who actually need the relief or not. just in case you thinkhiplan does that, justice gorsuch, it does not. justice gorsuch:'m asking a hypotheticalnd understand the point you direct this arbitrary and capricious review. with rpe to the fairness question that the chief justice posed, would you direct us as llo maybe state farm, for example, where the secretaryas to weigh not just the benefits

to the person's actingo vor, but also the cost to others? ms. prelogar: i think that's a more natural way to analyze those issues. i should emphasi bause we're in this case these individual borrowers didn't raise the state farm argument. so, they're not making these fairness allegations. justice gorsuch: i hear you, but you would agree that that would aelevant consideration at some stage in the courts analysis of the secretaries action? ms. prelogar: i don't think that the secrety uld be faulted for not considering the interest of monsoon loan borrowers, becausi n't think that's one of the relevant interest that congress expected him to take in account under this authority. as we' been discussing all the time -- justice gorsuch:o , it's just irrelevant? ms. prelogar: yes, i think that his charge under the heroes act is to determine whether student loan borrowers need this really. juicgorsuch: i appreciate, it thank you for clarifying. >> justice kavanaugh? justice kavanaugh: picking up on

the chief justices and justice alito's questions, if 're thinking about how to interpret the statute, and we're trying to think about the contt the statute, in interpreting it, the word wave and isolation, one thing. but it doesn't use cancellations, so that cuts the other way. i take your response to that. then you're thinking about contextual h it all works. it fits together, the fact that there will be winners and losersbiwinners and big losers, relatively speaking, if the executive branch has this ki of authority. people who didn't go to college, as the chief justice said, or people who had just paid off their loans, who say what they did to pay off their loans and they're getting no relief because of the timing t situation, and if congress were doing this, congress could, and would, no dot,ry to hear about all of that and a factor all thatn,n a way that the secretary could not, especially wiounotice and comment. should any of that factor into how we think about wheero give a broad reading a wave or a

narrow tweeting a wave, given the context? ms. prelarno, i don't think that that should factor into how to interpret the statute. thk instead, as this court usually does, it needs to consider that text on its own rms. i don't see any way rd the provision to waive or modify any title for provision, but only do it a lite t, only in response to minor emergencies. it would actually be perverse to suggest that when there is a big emergency, that might necessatbroader relief, the secretaries moreisled from acting. instead, that's thlauage in the statute that is meant to empower thseetary, and to ensure that he has whatever tools are necessary to fulfill his statutory purpose, to ensure e rrowers are not left words of. -- worse off. with respect to these concerns about whetr ere is room to take into account other interests beyond student loan borrows,here are avenues to go to congress for additional relief, to implement other prra. there's been unprecedented levels of covid pandemic aid, as

mentioned. and i think to suggest tt e secretary here should have told borrowers who may have determined where msive risk at default and delinquency at record numbers that he wasn't going to useheuthority under the heroes act, that's tailor made to prevent that result, would veeen and any have been ang to do. ain, i think this really comes down to congresses judgment that there should be authority to provide the benefit within the context of this program. obviousl tre are additional authorities and benefits that can be provided under other progms >> separate question. the student loan issue is a major public policy issue, without regard to covid,o begin with. obviously, and how to deal with that burns imposg ople after they get out of college who have massive student loans to pay back. obviously, a huge public policy issue. that wasei considered before covid. should that factornthow we think about this? inth words, this is something that was on the tae being discussed, being debated, anthen all of a sudden, it's this public policy idea is

attached, atas being proposed and pursued before the pandemic's attached to pandemic legislation. matter at all? ms. prelogar: i think it's rely hard to think about how that should work, as a matter of statutory inrptation and specifically what kind of burden this court would be putting on congssif it goes down that road. if you put yourself back in the oeof the 2003 congress, it couldn't necessarily ancite exactly what would be the subjects of political discussion and debate at the timehathe covid national emergency pandemic hit. and so, going downheoad of suggesting the meaning of the statute could change or should be interpret ian anti 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 force- ssive student loan default.

justice vaugh: last question. can't resist on justice gorsuch's earlier questions. [laughter] if it were party specific relief at went up to the court of appeals and the court -- you had sought an emergency injunction on the court of appeals, the court of appeals ruled against the government on that, what do you then follow that in that circuit orot ms. elar: i think as a practical matter, we generally do follow that in the circuit. wa to be careful here because i -- justice kavanaugh: you might not in the future? ms. prelogar: w'll, you know? justice kavanaugh: can admitted. ms. prelogar: our general practices, yes, wein-- it within the relevant circuit. but again, the concern here is th aually, it's imposing on us an obligation to follow i throughout the nation. justice kavanaugh: and if you came up to this court in an emergency application, we said you did not have a likelihood of success. i think said earlier, you would follow tha why would you follow that? ms. prelogar: we recognize th

this court has authority to resolve these issues for the tion. justice kavanaugh: even though there are only two parties in the case, you would say, we are going to follow it for everyone else and not force every other affected individl come to court? you think every future administration would want that same approac ms. prog: well, i think that they would likewise understand that even if the relief didn't formally extend beyond parties in the case, obviously t presidential course of this course decision in a given area rule for the nation. justice kavanaugh: thank you. >>ustice barrett? justiccoy barrett: i just want to ask you one thing about thstutory language on waiver modify that i wonder whether it's an indication of the scope of waiver modify. so, the secretary'auority to waver modify to ensure that affected individuals are not placed in a woe sition financially, in relation to that financial assistance. so, in ratn to their debt. so, you agree, right, that we're notaing about it financial

-- a worse finanalosition, generally. we are just talking about in relationsh tthe debt? ms. prelogar: that is correct. the two often collapse, obviously, because if you're distreed financially, might be that you're having troubl paying your mortgage or paying her rent, buy your groceries and painted at. heroes act focuses on yourhe position with respt your ability to repay or student loans. justice coney barrett: so, it seems to me that language, in relation t financial assistance, suggests that the relationship would continue. but the iv modification here severed the relationship to the debt, so that it no longer exts so, why would that be nsistent? i mean, doesn't the statutory nguage in relation to that financial assistance presuos an ongoing relationship that might be modified, but not completely ended? ms. prelogar: no, i think that that would be reading in limitations thata't be gleaned from the text. what we understand the statute toe cusing on, and specifically looking at the su paragraph here, that justified this act, making sure that student loan borrowersreot worse off with respect to their

loans. that functions as maer of the probability of being able to actually make their payments. and this actllrelease 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 hahe fares entirely in order, she had a 0% chance of defaulting on that debt. but then covid hit, her life has been disrupted, her job was disrupted, inflaons at record levels, she's having trouble making ends meet, and now she haa ch higher likelihood of not being able to pay heso loans. -- student loans. in that situation, heroes act relief, if it were to operate even to completely elina her debt so she doesn't have an ongoing relationship with it, it would just resto h to her pre-pandemic relation, in so far as her risk to default and delinquenc 0% before and now she will be 0% after. so, it ds't inherently make her better off within the meaning of the statute.

justice coney barrett: tha >> justice jackson? justice brown jackson: i wanted touickly circle back to the fairness point. i guess i'm wondering whether or not e me furnace issue would arise with respect to any federal benefit program. so,'m thinking about the fact that as a result of covid, we had massive infusions of money ven to various companies or organizations, clearly authorized because congress said, do it. i'm wondering whhethat would be unfair to people who didn't own a company or somebody who didn't have, you know, a nonprofit d sn't getting that money. i ston't know how far we can go with this notion of, to the exnt that the government is providing much-needed asstce to people in an emgey. it's going to be unfair to those who don't get the same benefit. ms. prog: yes, that's exactly right. at would say is that's inherently an aspect of what congress authorized in the heroes act as well. it specifically thought abou is situation, what to do about student loan borrowers w a impacted by a national emergency, who mightheend up

in a worse position with respect to their ability to repay. and congress made the judgment, you cagi them relief. and with any benefits program, e're going to be others outside the context of that particular program who are not getting the benefit. but i don't see w at could possibly provide a basis to just say that you'rearalyzed in doing what congress intended, to ensure that the class they were focused on gets the relief they need. >> thank you, general. mr. connally? mrcoally: mr. chief justice, may i please the court? this case turns on the same ise as nebraska versus biden. whether the heroes act authorizes the debt forgiveness program. it does not, as this cou h already heard. i would like to focus here on three issues specific to this case. first, the heroes t the secretaries only excuse for not adopting the program and

negotiated reming, and notice and comment. if that act is not applied, there'no dispute that the program is procedurally improper. second, on standing. thgovernment makes one argument that if respondents prevail, the secretary won't provide debt forgiveness to them under the heroes act. but that's not the proper inquiry. respondents ednly show that ere's some possibility that the relief they seek wilprpt the secretary to forgive their debts. on that question, there's no debate, that forvess is a top priority of this administrati. the parties agree that the secretary cafoive debts under the higher education act, and the secretary has never deni tt he may follow the proper procedures and forgive reonnts that's after his current program is declared on wf. finally, on the merits. congress did not authorize the secretary to create of 400 billion dollar that rgeness program behind csedoors, with no public involvement. the whole point of negotiated rulemaking and noticing comment is that the individuals most

fected by student loan regulations, like the respondents, must have a meaningful voice in e regulatory process. but here, threondents were deprived of their procedural rights and their finances suffered. brown got nothing, taylor received only $10,000. even though high income invials making more than five times as much got $20,000. the law requires that the secrargive respondents an opportunity to be heard. the judgment below should be rmed. >> mr. connolly, has this court ever held th t notice and comment revisions of the apa can establish are not for standing, a case like this? mr. connolly: i would point to summers, and summers, this court held in an environmentaornization had

standing to challenge the four services approval of the burnt ridge projt. and because before service approve that without going thugnotice and comment. and that environmental ornization had standing because there was some possibility that if they went through the proper process, that the for servicwod change its mind and would not approve the burnt brgeroject. i think it's the same thing here. if the secretary goes through e oper process, there's some, and negotiated rulemaking, notice and comment, there's some possibility that he wi cnge his mind and forgive our debts. justice thas we are the procedures in summers applied in summs? mrcoolly: where they implied? justice thomas: no, applied. mr. connolly: oh, applied. in that case, yes, the cou said, the court found it was drawina stinction between why they would've had standing innelace and wouldn't of in another. and the reason that the group ultimately did n he standing is because they had settd .

but the court said that if bernie ridge had still been on the table, that they wld have had standing. justice brown jackson: doesn't your theory of injury rely on the sumption that if the heroes act isn't there or if there'a problem with the heroes act, the administration uld necessarily have done the same thing, undethhea? mr. connolly: no, i don't think so. in fact, i think the program wi lk quite different once it does go through negotiation rulemaking and notice and comment. justice brown jackso iuess i'm asking you, you seem to be asmi that if you get the relief of invalidation of the action under the heroes act, that the administration would necessarily veorward, because you said it was a top priority this administration, that they ulnecessarily do the same thing or a similar thing, meaning provide debt reliefo ople under the other legal avenue. and i mean, i can imagine a rld, if you think of a hypothetical, in which t secretary believes that the department only has auory

under the heroes act. here we arinhe midst of a pandemic, the intention of the department is to provide this reefn the context of the emergency. anthat if we don't have an emergency, and that if we'reot 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 athe administration would have provid t sort of debt relief under the authority you point to that you say has t pcedures that were not provided. mr. connolly two responses. i think the best evidence for this is thnare of the program. the program applies to 95% of all rrers. it's not remotely tailored to individuals who are suffering fr t pandemic. and the reason is because this is a program that's just sied to help people who are in need of debt relief. on the authority point, the parties are in agreement that they have the power to do this, under the age va.

-- hea and the crary had never come up here and denied that they want to go through the exact same process, which they should've done in the first place, once this program is declared lawful. justice sotomayor: except my biggest problem isy've shown me nothing to suggest that if they'd have to or will go under hea, that they're going to pre you of the process. they're going to let u heard, what justice jackson was getting to is, you cou b heard and not accepted. i mean, your position could be rejected. then we've had to look at that program and decide if that program fits the hea reirements. and the arbitrary standard. but there is no injury that u're suffering, unless you get a speculative new plan tt es into effect. you have no oothat if a speculative new plan does arise

under the hea, that y're going to be deprived of notice and comment. and you certainly can't say, if they rule ait that interest, and you've had notice and oppouny to be heard, that it was arbitrary and capricious. so, i'm at a loss thow you have standing. because there is no notice and procedure requirednd the heroes act. the only way you can win is if you strike down isrogram completely, and that means that you don't get an opportunity to be heard, nobody else does mr. connolly: the secretary created a 400 billion dollar debt forgiveness program. justice sotomayor: you are arguing with the state is arguing. i'm asking you about the deal. y. you, as a student, once the heroes act, your 10,000 dollar student. is going to get nothing. he's not going to get 20,000.

you strike it down, gs nothing. neither does the person who wants somethg. this is totally illogical to me, that your coming into court to say, i want more. i want to file a suit to get more, but i know i'm going to get nothing. mr. connolly: so, the secretary cread massive debt forgiveness program, and he says that he's doing o time at one time only. he said this in his briefing, hidearations, on his website. and the reply brief he said he ok cost into account. so, if we miss the shot, we will never have another opportunity to get -- justice sotomayor: no, -- [crosstalk} >> i don't know if that hurts you or helps you. it seems to hurt you to ggt that. i thought your argument was, if we strike down ts ogram, then we know the secretary is going to try again under the age

-- hea and that's the relief that we are seeking. the procedures tt ist under that program. so, if he's done, if we strike it down, it'in just a sort of my or right, that you're in a much worse position? by briinthis lawsuit. mrcoolly: if he completes the program, but we're asking, we' trying to stop this program so that it can through the proper process, so that we have an opptuty to comment and urged secretary to forget our debts. right now, miss owhas $70,000 in student loan debts, and she's not getting a dime of debt forgine. and if this had gone through the proper process, there's some possibitthat we would've had our debts forgiven. and in lujan, what lujan talks abt is this is my procedural rights are special. because the agency can always come in and say, you know what? we would've done the exact same thing even if we would've had that process. your injuries are not real adjustable. but that's y procedural rights are special. >> do you rely on, to what exte do you rely on the fact that your clients include existing student loan borrower? and that you have a little different than one tt's not.

in other words, it's not speculivthe question of how would that person be remedied. but it is another -- you're asngor a notice of comment and during that period. it's granted, that would entitle you to raise, yokn, the limit, whatever the credit limit is that should be changed. i meani ink your challenge is to make that sufficiently particular rise and non-speculative? i know that thprlem withstanding jurisprudence for something that looks for somethg ncrete and particular eyes, it's also ver academic, you know? oinjury and you are in. hundreds of millions that they can't trace directly to the agency action, and you a n. so, what is it that makes the interests of your clntho has, what, 17,000 dollar loan. how is that suicntly concretendarticular eyes in

-- particularized in theonxt of something that the government would address, if it can't do what it's doinno mr. connolly: re. so, i think it is critical that we are here representing boows. she has student loan debt, and it'not being repaid. concrete interests at stake, so iss not someone off the street whose upset that hior her taxes are going to go up. there's no question that would be a generalized grievce but here, if you look at the scope and the puosof the program, it's to help student loan borrowers. but instead of doing this through negotiated rulemaking and noti a comment, they carved up the line, they did it all in secret. point the court to page 31 of the government's rey ief. on that page, the vement said that it had extensive discussionwi banks, and ultimately decided not to forgive ffel loans. that's the type of thing that should be happening on the --

>> mr. connolly, aren't you really fighting congress on this one? the heroes act specifically says, no notice and comment, no negotiedulemaking. specifically says, there's gog to be an emergency. sowere waving those procedural requirements. so, you know, you might think atongress made a wrong call there, but that's congres's call. mr. connolly: cause one 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 andodication, and skip through negotiated rulemaking and notice and comment. right there, subsection be, it's as a negotiated rulemaking requirements shall not apply to the waivers and modifications thorize or required by the act. it does t y anything that the secretary labels a waiver and modification is authorized by or required by the act. and so, we recognize 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. connoy,ne of the limits of a three? could someone who finished paying their loans off, you know, right last yeasu because they were disappointed that they weren't included for reimbursemen no, i n't think so because there's no mechanism by which thdertment of education can write those a check. so, their injuries are not addressable here. there is a mechanism, under which the seety can forgive miss brown's that's, forve miss taylor stats. and that is a difference. at about the chief justice's long care person who doesn't go to college, starts a long care business, but as thehi said, this person has some fairness concerns and feels like this shouldn't ha hpened, and kind of level up or level down, what's to level down? >> sure. agn, the secretary of education has no power to give

any money to that individual or athing like that. so, even if he could come up with a concrete interest, it couldn't be redress-able. >> could've persuaded him not to do it? i take it with the fairness concern and hypothetical the chief had posed you. i thk would've been to say, well, this isn't fair. yoarnot doing this for me, so you shouldn't have done it for anyone. but you are not taking the position that that would be -- no, he would not because you ha thave concrete interest, there has to be particular es, can't be abstract. d so, -- >> so it's not just getting shut out of noticcomment? >> correct. these individuals have concrete interest. there was a 400 billion dollar

debt forgiveness program that was created and the spdents have that's, and they're not being forgiven, and if it had gone through t pper process, negotiated rulemaking and notice and comment, we could've argued that your btshould be forgiven to. >> or maybe if congress were inlv in this expenditure of 500 billion dollars, that that might be something that they could consider. mr. connolly: right and i would also point to negotiated rule making statute. this is a unique statute that congress said spifally that it wanted all of the individuals who are affected by the title for loan prossstudent loan borrowers, universities, everyone. it wan tm to be involved in the process. and it strengthens those quements in 1998. and so, the idea i think tha right after doing that, it ally strengthened the negotiated rulemaking th congress said, yeah, you can create a 400 billion dollar program on your own,n cret, without any public involvement, it just doesn't seem possible. >> what is the limiting principle?

i mean, there are many, many programs out there that people say, well, i ohto be covered by that, and i wasn't. and we certainly don't allow everyone to men and say, just because i would have a right to comment, if this w were struck down, i therefore have a right to bring the suit. i mean, how does this? i understand maybe you have the one clie tt has a student loan and when it doesn't, right? well, there's a clear difference betwn ose two situations, isn't there? >> sorry, they both have student loan debts right now. brown has 17,000 and taylor has 35,000. >> okay, well what principle should we look at to try to limit thunerse of people? otherwise you get people who are interested -- i have something to sayhathe secretary might find of interest and notice and comment, so i should be able to sethblackouts there now. >> i think you have to look at

the scopanthe purpose of the agency action. was the individuals concrete inres at stake? if they're doing somethingha has no relation to what you're colaining about, your concrete interest, then it's congut of left field. that person is not going to have standing. or if there's no possibility that the secretary is going to give you relief, becsee're dealing with topic a, and you're coming in here on topic b, then that person i't going to have standing. but here, we have, there is no dispute e cretary is trying that person isn't going to have standing. here there is no dispute, the secretary is tin to give relief to stenloan borrowers. th is the nature and the scope of theurse of this act. instead of figuring out, among this universe of student loan borrowers, who wilge what, inead of doing that, they did it in secret. >> for ps of standing as distinct as who can comment, for standing purposes, it has to be someone who is in the class of

people who would have been afforded relief. >> i think that is a fair way to put it. you have to have concrete interest. that is what we have here. >> if i understand, it is once you stre down this program, then the sretary just uses authority under the hda. is that the nature which would include negotiated rulemaking? >> the hda -- i tnkhat is focusing -- you look at the agen action, you look at the facts on the ground -- >> you are striking down this program. this program is not right, you have to straight down this program to get any possibility of notice and comment under another statute, gh

>> right. >> so you have to stken this program, then you go under another statute? where you do get notice and comments, that's the theory? >> that is correct. the hea gives us a right. they have to go through negotiated rulemaking. >> i mean, usually when we give standing for procedural viations, we are talking about procedural violations within a particular program, right? not talking about, you know, if you have a probl wh the procedures relating to one program, you can just come in, strike down the program so that you're in another statute entirely. oh >> well, i don't think it's rit look into focus on the statute that they are using as an excuse. that's a statue they acted under. the statute that says, you don't have to use notice and comment. >> tnk we focus on the agency action atss, so in lujan, the lujan footnote seventh, the agency is prong a. in summer's, the agency is

tearing wn forest. here, the agency is doing that forgiveness. i think you look at the actions -- >> suppose there were no hea, suorit was the statute or nothing, would you then say it still has standing? beuse once you strike down this program, you know, the secretary would go back to congress and get a new statute. >> no, i don't think so. that there would be a possibility that he would go back and give -- >> yes, theris possibility. it goes back to congressnd says, this is terrible. nobody can get loafoiveness. so, i will go back and get a new statute. >> that relief would be coming from congress. the way you look at the redress ability wther there is some possibility that the agency will renser its decision. and here, the decision was the debt forgiveness progr. >> keep going, sorry. >>ou look at the agency action, the otr ne of cases i would point to is the structural separation of powers case.

in those cases, you focus on the agcyction. you don't look to see whetr e actions, or the acts restrictions on mol are injuring the individual. you look at whether the agenc's actions are injuring the individual. i think it's the same thing here. >> what's your best-case, if you have, for your answers to justice kagan's question what abt you going under a different statute, are youwa of such a case? >> i guess a few responses. first, i would go backo e ones i just mentioned in lujan in summers. none of those cases focused on the statute and issue. they look at the action. jafootnote seven, the dam example. and individual who'ling next to a dam, when they approve that dam without going through the proper process, that individual has 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

ac and i think what that footnote ows, and what that example shows, is that the statute really doesn't matter. what matters is the agency action. et me ask you about the evidence. what evidence do you need, as the plaintiffs coming in claiming standing, that the agency would have proceeded under this othertate? 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 h a. they would have to actually elect to operate in that oth world. and so, this goes back to my ve fst question to you, which was about, aren't yo relying on the assumption that if the heroes act falls, this agency, where this administration, would pursue the same course of action under this other statute? >> sure. a few reons. first, if you look at the nature of the action, it's applying to 95% of all borrowers. inot remotely tailored -- >> do you have evidence that

they've said, even pursuant to this litigation, forxale, that if the supreme court strikes the sound, we're going to pursue the same relief unde hea? i'm king about the, like, is it enough for you just to identify another path? don't you have tateast have some evidence that the administration is gointoove in that direction? >> so, yeah, again, i would point to the nature of the rule. it's broadbased, not tied to the pandemic. the second thing i would point to is that there is all sorts of evidence. when, during the campaign, they were talking about doing broad-based debt rief. it wasn't related to t pandemic, senator warren and he passed resolutions urging the secretary to use the higher edatn act, to pass that forgiveness. scholars have written about this. >> and yet the secretary chose th ph, so i guess i'm just trying to say, do we have somethinfr the secretary saying that, you know, we're definitely doing this under all circumstances, and we ck the h e a, if the heroes act falls?

>> i think that would aery high burden for us to meet. if you lk,gain, that footnote seven of lujan, one is talking about why procedural rights are special, what it's saying is that ithburden is on the plaintiffs to come back and say, y kw, my comments are going to be amazing, they're gog do this, they're going to change their mind, procedur ghts are going to be useless. they can always come back and say, we would've done the same. >> that's changing of mind in the context of a particular program. this is justice kagan's point. i an, yes, redress ability gets relaxed in the world it was procedural rights would otherwise existed and you don't have to, as a pinff show , that they would have made a different ultimate determination, if they'd heard your comments. we understanth. what you're suggesting is that same principle of redrs ability applies to whether or not theyou shift to an entirely different legal base of authority, to pursue ts program.

and i've never seen that before. and again, i think this exact, this program, they could've cited section ten 82 of the 88 to go under it. -- hea to go under it. they believe they can do, it they've set it in the brief that they could do . the reason, my guess is the reonhy they didn't do that is because it would've had to go der negotiated rulemaking, and notice and comment. if you look at the breadth of th pgram, it's not about helping people who are uniquely suffering from the pandemic. 's helping 95% of all borrowers, except for the respondents here. and so, i think when you look at the nature of the program at issue, plus the campaign statements, plus the fact that they'veever gotten up here and denied it, you put all that tother, and i think we have a strong, at a minimum, some possily that they're going to get, when this programs declared unlawful, and they go back to the drawing boar i don't think they're going to fold up shop.

i think they'reoing to say, how about the hea? >> what's your theory, if any, maybe i should be ki the other side this, but your three for wt they didn't want notice and comment? >> i think because it, the negotiated rulemaking process and the notice and comment process, i mea 's a long process. and agencies probably would, most agencies would prefer not to have that. >> this is an emergency. an emergency statutes typically do not have noticed and comments, do they? >> if this were authorized by the heroes act, than they could've gone under it. but it is not. >> they could've done the good cause. >> they could've tried to, but they did not, and probably because i's not an actual emergency to have to forego notice and comment negotiated rulemaking. >> thank you, counsel. oh, wait. i'm sorry. i cut you off ckly, i'm sorry. justice thomas, do you have anything? justice al

justice kavanaugh? justrrett? [laughter] thank you. thank you very much. general prelogar? >>hank 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 th theory he's advancing here. in every case wherthe is been an assertive procedural injury, the plaintiff was asng for the agency to reconsider its decision und t very statutory thity and issue. h's not been able to identify any precedent where, instead, plaintiff is able to say, i acknowledge i cannot give you y relief under the particular agency action at issue. instead, i'm hoping for some kind of bank shot whe i can hold up the agency in this one area, maybe it' take a different action under a different statute that will, down the road, provide me some kind of benefit. that would be an extraordina

expansion of article three injury in the context procedural injuries in particular. he was asked wheere had limiting principle, and he suggested,el you have to have a general interest or stake inheubject matter of the dispute. but i don't see how that limits it at all. go back to the cases he cid, which involved environmental plaintiffs. imagine the scenario wreou have an environmental plaintiffs who's interestedn llution. the agency has decided to regulate water polti, and that plaintiffs doesn't actually have a stake in water pollution, isn't harm bit. but the plaintive thinks thaif it can hold out the agency from regulating water pollution, maybe the next priority or goal would be to go after air pollution. i think that if the plaintiff came to court and press that kind of clai iwould be clear that it's far too attenuated and can'possibly supply a basis to allow isniverse of aiiffs to newly-assert these kinds of procedural injuries, substantive injuries, with respect to agency decionthat have not been made. he said that they have a concrete interest in trying to

have their dtsorgiven. if that further interest, there were several straightforward chanisms to try to vindicated -- vindicate it here. they could've challenged this plan as being arbitrary and capricious on substaiv grounds, to say, you should expand the plan to include us, or if, for some reason, they really want to have this under the education act, they could've gone to the secretary and filed a petiti f rulemaking and said, give us relief under the education act. but instead, their argument here is that the secretary can't ovide debt relief. that's really an anomalous way to try to vindicate and interest that they claim they have a loan forgiveness. i'veeethinking of it effectively as this room staff -- ruth goldberg theory of standing, where instead of taking the most direct route, we've set up isomplicated route to try to get what you want, all in service obeg able to smuggle in a substantive challenge toheeroes act, for borrowers who are not hurt one bit by the secretary's decision to grantelf under that act. nay, i want to respond to his suggestion that instead,he secretary should have proceeded under the higher education act

here. i would think that at the very least, if theyergoing to ask this court to recognize a -- article three injury on that bas,t would be incumbent on them to explain their holy exained position of why they think the secretary could do this, under the higher education act. my friend has adjusted that that's what this program was actually designed to d but this is a pandemic related program. it's specifically focuses on the national emeen circumstances that have had profound financial effects on student loan borrower anthsecretary acted to try to mitigate those financial harms from covid. th's what the heroes act was made for. it's a perfect fit for this kind of circumstance and explains why the secretary chose to provide this relief to tho w were harmed by covid. just as the foeance policy was put into place, at the start of the pandemic, similarly on its covid concerns. and then finally, i know that we've had hours today on the lel 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 ts untry who have had devastating financial impacts, based on this unprecedented pandemic. over the past three years, they've benefited from the critical relief of the forbearance policy, that's an unprecedented form oreef, but it was very much needed in this circumstance to ensure that we did not see a delusion of default and delinquency on student loan debt. and it's undisputed, by friends of n dputed that when that forbearance policy ends, and it can't continue indefinitely, once it ends, there are gointo be millions of borrowers who are in a worse position because of covid, with respect to their ability to repay their loans. 90% of the borrowers covered by this plan make less than $75,000 a year. and the secretary documented the extremimcts of covid had had on their financial affairs. already, 26 billion people have applied for this relief and 60 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 student loan borrowers who don't even have standing, those claims fail on th

this is about 45.

>> thank you, guys. we are going to hear from u.s. secretary of education and distinguished career as a school teacher, principal, administrator and connecticut education commissioner. i say thank to our guests who are here and grateful for everyone who is tuning in from across the country.

right now, there is a child in a classroom in rural america -- [indiscernible] >> beginning of the year both agreed. there is a high school student who is receiving mentorship to become a teacher. and young person connecting with her school counselor to become the first in her family to attend college. he raises the bar for these students. you will hear about the u.s. department of education's focus which builds on the secretary's priorities outlined last year and academic excellence to boldly improve conditions for learning and prepare our nation for global competitiveness. i'm linda lopez and senior adviser here at the department of education and i will be your host. i would like to direct your attention to a short video why

the work to raise the bar in education is our urgent snmentd indiscernible chatter] [indiscernible]

[indiscernible] [applause] >> thank you for watching and to inspire us further, it is my

honor to introduce our educator-in-chief, secretary car zona -- cardona. >> thank you to everyone here. and thanks for joining us on an important conversation on what it takes to raise the bar in education and lead the world in academic excellence and boldly improving learning and preparing our students for global priorities. this is a broader journey we can take to improve our education system. it was made possible by president biden and vice president harris' leadership to make education a top priority and deliver the system. historic $130 billion in supporting our schools and

reopen swiftly and safely and invest in the academic recovery. without that leadership, we would be talking about a very different situation today. we can't rest there or be satisfied. we must do more. we need to raise the bar. that means putting the era of system neglect firmly in the rear view mirror and collective will to address student underperformance in the decades of underinvestment in education. people ask me, what's the hardest part of the job? it's a simple answer, toughest part of the job for those at the department is time away from family. the need to this, the best title i take most pride is the title poppy.

[applause] >> i started a routine with my 16-year-old daughter who had a thing called saturday shennigans. we get in the car and just go anywhere. we usually start off with a coffee and end up like a beach, park or hike and sometimes it turns into a driving lesson for her. and after two years of doing this every saturday morning and getting in the car and watching my daughter grow in front of my eyes i realize that sometimes as a father the journey is a destination. it means it is not a specific event or one specific place but improving over time and growth and strong relationships. the journey is the destiny.

today i'm here to tell you education, too, the journey is the destination. hear about initiatives today but you will invite you to go on a journey and raising the bar on education. i know education opens doors because my wife and i are proof of it because i see firsthand the way it transforms lives. as a student, as a teacher, as a school principal and as a parent. when we talk about the future of education, i couldn't believe more strongly we have to get it right and center our work on what we know really matters. engaging students, quality teaching and quality content are what was referred to as the instructional core. over the course of my career and

i'm sure to many of you here, we say education policies don't improve the educational core. they are promising to fix education. they see big initiatives with clever names that promise everything that only fade away after the sense of urgency is over. this administration is about substance, not -- about real solutions to complex issues with an unrelenting focus on the instructional core. in my experience and in conversations with dedicated educators, local, elected education leaders, parents and students, our children cannot's forward a round of policies that are not grounded in our kids. they don't want politics or cultural wars in education. what we do need is a collective will to fight come plansensy

with the same urgency and passion. uniony and passion and we look past red and blue and we tap into our collective humanity, our courage in the american spirit. i call on my colleagues on both sides of the aisle in congress to local elected leadership and leaders leading our system to join us inputting our shared goals in education. today, we raise the bar in education. the same isn't good enough anymore. if we do what we have done, we are going to get what we've gotten. our children deserve better than that. the first area we must raise the bar is academic excellence. as much as it is about recovery, it's about setting higher standards in success in reading

and math. it is unacceptable that in the most recent test and our students scored 36th place out of 79 countries in math. that is unacceptable. we must do better. we must act like our national security depends on it. what does it look like to raise the bar in academic achievement? how does it connect to the field? we need to follow the science of literacy and they have skills while embracing a passion for reading. we should provide students access to financial literacy and prepare them for college and stem careers. it means taking a close look at the instructional materials to ensure high standards so that an a in school actually means something. it means that we pursue a well

rounded education that includes the arts and reject those that are narrowly tested. we need to recognize that standardized tests work best that reflects on our work and not as hammers to drive the outcomes from the top down and pointing fingers to those with greater needs and also means recognizing that a strong start in education is a huge difference. let's get behind president biden's call for early universal early childhood education and enhancing kindergarten as a student bridge. [applause] raising the bar means improving learning conditions and means transformational shift and how

we invest in and provide mental health support to go from a reactive to proactive model and focus on students' well-being. the community safe act raises the bar and safe and supportive. we increased support for full service community schools $30 million to $150 million this provides critical services to students in their local community. without these types of services we can't be shocked in the results in disciplinary practices in plaque and brown students-f we believe that students' mental health impacts learning let's ensure they get the support they need to be their best. i visited close to 40 states and

i have seen counselors to student ratios from 500 students to one counselor to 250 counselors to one student. i see the impacts for all educators. we seen districts using dollars to create contracts with hospitals and other health care to give students and families what they need to succeed. last i saw last week in kentucky. look, i know is not intended for us but it should be used. it is intended to accelerate reopening and recovery. and funding. now as leaders, it is time for us to stand up for students and accept more in education.

lessee not forget how schools closed because they didn't have enough teachers. let's learn from that experience. let's make the case for improved funding. investing in our children is no different. they protect our tomorrow. we must raise the do so respecting the teaching profession. wages for college graduates have gone up by 28% while weekly wages for teachers have gone up 2%. that is an increase of $29 for a week and $400 increase for others. also, we sat idle while normalizing the fact that in many states mid-career teachers

qualify for state welfare programs. and we as a country minimize the profession and driving uppers and getting second or third jobs? i'm not ok with that. in my experience as a teacher and as a father, i know the teaching profession changes lives, it's a profession that makes all of the professions possible. children discover their own gifts and get confidence. it is the best profession and we at the department of education will do all we can to ensure they are valued and this includes competitive salary. i had a meeting with the administrator of education and how much we agreed. respecting our profession is the student achieving. we are providing $2.6 billion to

prepare, support and retain high quality educators. this administration has seen the biggest increase crease in title 1. fighting to double title 1 funding that will result in better student-to-teacher ratio and ensuring grow your own programs that they are developed to bring the talent into the profession. we know programs work and putting money and support behind it. i expect that our students achieve better than every other country but that starts with respecting the profession. and providing competitive salaries. no teacher should make less than the average people of similar degrees in their state and discharging debt for our teachers who are public servants. under this administration over $24 billion in loans have been

for given for over two million public servants. [applause] >> we are working at the department of education to increase transparency on the teacher salary and called on states and districts to raise the salaries to a competitive level. raising the bar such asthmas tear teacher status, preadvanced education for those who qualify and he deserve it. and respecting the voice and input to teachers. not just asking teachers to co-sign. true authentic engagement requires ownership. who knows the students best? [cheers and applause] >> raising the bar re-imagining

college and career paths. our prekindergarten to 12 are still disconnected. the gap between the systems are too big. the skills of a high paying jobs that will be made available in the chips and science act and the climate provisions of the inflation reduction act will be better infused in our k-12 especially in stem education courses so students graduate with success. that means that dual enrollment classes will start at the 11th grade and they can graduate with an associates degree or credential without paying a penny. [applause] already, we've secured over $1 billion in funding for career and technical education through the perkins grant program and $25 million for career-connected

high schools. now is the time to build on that. to help get there, in november we launched a new pathways initiative called raise the bar: unlocking career success. today with the first lady and secretaries of labor and commerce, as we roll out this initiative, it will include very specific plans on how our high schools should evolve and meet the college pathways for today and tomorrow. look out for our plan. better yet, use it. it also means that career pathways in high schools can lead to microcredentials for the jobs of today and tomorrow. we have the students. we have to better align our systems and clear the path for our students. we must challenge our myopic view that emphasizing the pathways is -- whether it's four-year college or bust. advancing career pathways in high school is about more options for students, not less. what it does is prepare them for

the careers of today with options and in some cases their employer will pay for their future education. if we do this well, our graduates will be able to compete on a global stage. and it's my intention to raise the bar so we can lead the world in advanced career and technical education. and speaking of global competitiveness -- speaking of global competitiveness, if we are to prepare our students for a global market, let's raise the bar to provide better opportunities for our students in america to be multi-lingual. [applause] thank you. recently at a minute steerial meeting in france with 38 other countries, i was surprised that we were one of a few countries that was primarily monolingual. learning in our or other multiple languages should be

anchored for global engagements and increased opportunities for success. [speaking spanish] what does it look like to increase multilingualism? first off, it means improving our languages. we'll provide support and assistance to the 50 states who are working to improve their language development programs and multilingual language programs. don't forget every year there are 760 million dollars in title 3 funding from the department of education that can help support english learners. let's look at our students in bilingual programs and gifted with assets that we want other students to have. i've always said being bilingual and bicultural is a superpower. [applause] look, let's place a high value on having graduates being multilingual, recognition for that such as earning a biliteracy which i know many

states do. let's face it, you'll have more options in life being biling rale. let's improve multilingual education so our students can grow in global markets where multilingualism is embraced in value. at the department of education, we'll prioritize these focus areas and expand opportunities for technical assistance and use of federal funding. in the coming months, you'll hear more details about each of these categories. our actions at the department must support a relief and we will intend to do it. but it will also require states and districts to step up and match the urgency that the president and congress demonstrates through the american rescue plan. and we'll continue to demonstrate through our annual budget proposal. now the question is -- will we step up and seize this opportunity to raise the bar in education for years to come?

how will we answer that question will determine whether we can maximize the potential of our students, of our schools. yes, of our country. so today, my challenge to state governors, legislators, local mayors, superintendents, principals, policymakers and alike, let's do what needs to get done. let's fight for sustainable, long-term state and local funding streams that will make good on the promise of the american rescue plan as a down payment for transformative change. let's raise the bar. almost 25 years ago i walked into room 106 at israel putnam elementary school in maryland, connecticut. my first classroom, i can still remember the excitement of teaching my first class of fourth graders. and the effort i put in as a first classroom pull tin -- bulletin board to welcome them,

on it i put a picture of a rocket ship going up with the words, let the journey begin. my journey as an educator started that day. and it's been a joy to embark on that journey ever since, to learn from the amazing educators i met along the way, the promise of education, to open doors they didn't even know existed. that journey became my life's purpose. that journey became my destination. today, i invite you to join me on that journey. if you believe that every child in this nation deserves a shot, join me in that journey. if you believe that it's worth taking a if you lumps every once in a while as we protect the pretektors of the status quo, join me on this journey. if you believe that we have the will and capacity it takes to step up and lead the world, join me on this journey. if we embrace that journey together, i know that our

students and our families will be prepared for the careers of the future and that they will be able to engage in and prosper on the world stage. if you believe we can do this, if you believe now is the time to raise the bar in education, i say let the journey begin. thank you. [applause] thank you. thank you. >> thank you, secretary cardona. secretary cardona: thank you. >> thank you so much. your clear call to action and your inspiring call to action is why we are here today. and it's also clear that to raise the bar we need to work together. so with that in mind, we're now going to get into discussion with secretary cardona and with nathan, the executive director of the national parent-teacher association, the united states's largest and oldest education

organization. this work is a continuation of his lifelong belief that education creates opportunity for equity and the voices -- elevating the voices. nathan and -- are the proud parents of keira, a high school senior, and gonzalo, a community college student. so nathan, please come up and join us on the stage. [applause] nathan: you want to have some opening communities about our -- comments about our community and school shootings? secretary cardona: i do want to acknowledge the senseless shootings in california and in iowa and the community we share with all of you here in listening on making sure that our schools are safe places, that our communities are safe places. our prayers go out to the families. nathan: sobering moments for all

of us, isn't it? thank you for sharing your vision and we know it's built on your deep experience as an education professional. i think we all love that fourth grade picture. that was pretty wonderful. it's important for us to have a secretary that's been on the ground and knows what it likes. it also comes from your lived experiences as a father. you and i are both proud papas. so let's start with an easy but very important question. how are the children? secretary cardona: how are the children, that's a great way to start it. that's how we should always be thinking, how are the children? i have a high schooler and one in his first year of college. i'm living this experience like millions of parents across the country. they're doing well. we have children the same age. so you know what it's like about the hustle and bustle of high school and college. very blessed. thank you. nathan: we're glad to hear that. please give them our warm regards. when you were talking to us, you said the administration and the

department in this particular, you're about substance, not sensationalism. that's an interesting choice of a phrase. tell me why you said it that way and what it means to you? secretary cardona: look. there's a lot of sensationalism in the country these days. you know, this administration is about getting things done. i can tell you, i mentioned the bipartisan infrastructure plan, the inflation reduction act. the climate provisions there. the chips and science act. those are amazing opportunities for us in education to make sure our students have the skills to move forward. when i talk about substance, not sensationalism, we're not just talking about making sure college is more affordable, we're actually putting things in place. you know, $48 billion total in debt relief, $24 billion for public service loan forgiveness. we're making sure that college is providing a good return on

our investments. those are things that happened already. the president put forth in congress $130 billion in his first career several months to make sure our schools are safe reopening and they reopened quickly. and that funding was there for support for our students. so those are actual things that happened. those -- that's substance. we continue to look for ways to put our students and families first. that's what i mean by substance. and when i talk about raising bar in academics and providing better conditions for students and educators and making sure our pathways are clear, that's substance. that needs to happen at the ground level. it's nothing shiny orphansy that will go -- or fancy that will go away when i go away. we need to work on the core. nathan: continuity is important. you talked about our teaching profession and policymakers and education leaders have been working for many years on how we can elevate the teaching profession as a whole. you talked about the teacher

tax. you talked about creating competitive salaries that match other careers that have the same education requirements. you talked about investing in their long-term professional development. we should have done all that by now, right? and so we have to ask ourselves the question -- what's different in the united states? why don't we respect and honor and elevate the teaching professions like so many other countries seem to readily do? secretary cardona: you know, it is the best profession. when i talk to the youth today -- and it's interesting because in my visits across different states, people are going into the profession after working corporate america or doing something because they seed that it's closer to who they are as a person. they want to help but that doesn't mean they should have to give up a competitive salary. in 36 states, teachers make 20% less than people with similar college degrees. 36 states. you know, the teacher shortage that we talked about at the

beginning of the school year, that to me is a teacher respect issue. we can't talk about catching our students up in literacy let alone leading the world if we're not valuing what it means to have a high-qualified teacher in front of a classroom. research shows that's the most influential factor of student success. so what we're doing today is we're acknowledging -- and we're going to work with our partners in the state. we're in this together. but we're also going to bring transparency to the issue what we call teacher penalty, what i refer to in the speech as a teacher tax. the fact that in some states teachers are making low 30's and they're starting at low 30's. you can't move on with life making a salary that low. our teachers deserve more. most of them have masters degrees. we need to respect the profession. if we're serious about getting our students to lead the world.

nathan: as parents we're so reliant on the teachers in the classroom. and despite their best efforts, after the pandemic, we've seen students who come into the classroom who are disengaged from the way that we teach, from what we're teaching. they don't feel like it's relevant to their lives. what will i do with this topic when i'm 30 years old? my kids say that. i'm sure your kids say that. some of our students are dangerously disengaged and diseffective in what we teach. if we want to be leaders in the global world, we have to pull them in. and they won't reach their full potential unless we work with them individually to re-engage them. do you have any thoughts how we address that? secretary cardona: that's why i brought up the instructional core. at the end of the day it's about engaging students about quality content and rigorous content, high standards. and quality teaching. and investing in quality teaching.

i think -- i'm excited about where we can go with this. i talk about involving high schools and make sure students are getting internship experiences. you know, we experienced -- i experienced as a father -- i am not sure you did. my kids went to school in a hybrid format a couple years ago. they got credit. why do we take those days they are not in school, put them out in an internship or apprenticeship? let's connect with our partners, whether it's a hospital or an industry in the field so they can learn those skills and apply them? that's what students want. how is this going to matter when i graduate? well, you can answer that question by creating courses that are connected to the fields that work. i was in kentucky last week in a rural community. i talked to students in a course and they were learning how to use virtual reality to gain skills so that the jobs of their future don't -- doesn't mean

they have to leave kentucky. they can do it virtually. let's engage in that. i talk about career and technical education evolving our schools to make sure instruction is engaging. students have to see themselves in the curriculum. we don't prescribe curriculum here. we don't really work with curriculum. students should feel from day one and be diverse as the beautiful population of this country. nathan: that's great. yeah, we need that. you also talked about multilingualism. and you know, you're multilingual, secretary, right? half of the world is bilingual. here in the united states only about 20% of us are able to write, speak, listen another language. and that definitely puts us at a competitive disadvantage globally. i'm not really sure how we get there. can you give us ideas how we can increase the -- increase the

multilingualism? secretary cardona: the research has been out there in the 1970's and 1980's when i did our advanced course work on bilingual education it was glaring back then. how the research -- if we get students to learn a second language early, they're more likely to keep it, right? but instead, we have models across the country that have students erase their native language only to then offer it as an elective in high school. you know, there are dual language programs that work. there are research out there. crash and cummings. the research has been there. we have to make sure our implementation takes into account the research on second language involvement. we tend to not only talk about it but support our states, look to our colleagues, look for best practices to ensure there are quality programs. we need to acknowledge programs that acknowledge students like the seal of biliteracy. it's an asset when he walk out

of high school with a seal of biliteracy. that means you have much more market act. look, i'm excited about that work. i think it's about time. and as i said before when i visited that summit, knowing that we were one of a few countries that is primarily monolingual, that has to change. we are going to change it. nathan: i love what that does not only because it values our students who sometimes feel other -- it also creates an environment where their families will feel more welcomed as well. there are some side benefits there. secretary cardona: absolutely. nathan: you and i had many conversations about the valuable partnerships between parents and teachers and the educational success of their children. so i know your commitment is there. but can you talk to us where the department is right now as far as how you're engaging parents and the design, the delivery, the implementation of education strategies? secretary cardona: sure. and i want to thank you for your partnership