Department of Education v. Brown

ARTICLE III STANDING

Petitioners Department of Education and Miguel Cardona (collectively “Department of Education”) contend that Respondents Myra Brown and Alexander Tayler (collectively “Brown”) lack standing. Brief for Petitioners, Department of Education et al. at 31. The Department of Education argues that Brown’s injury allegation does not meet the Article III requirement, namely, that the claimant’s alleged injury must be redressable. Id. at 23. The Department of Education points out that Myra Brown’s position would not change even if the Plan were vacated, and Alexander Taylor’s financial position would be worse off. Id. at 31–32. In addition, the Department of Education adds that Brown lacks standing with regard to the APA procedural claim. Id. at 32. The Department of Education emphasizes that Brown recognizes that waivers and modifications under the HEROES Act are exempt from notice-and-comment procedures, but nonetheless argues that exemption is inapplicable in this case because the Department of Education lacks substantive authority to implement the Plan. Id. The Department of Education notes that, if this argument is accepted, no borrowers would be able to have their loan forgiven, and therefore the injury is by nature unredressable. Id. Further, this theory would preclude the Secretary from reconsidering the Plan under the HEROES Act, indicating that Brown’s argument is not an “actual desire” to receive a remedy but rather a desire to enforce “[her] view of the law.” Id. at 32–33.

Brown counters that the standing requirement should be less stringent in this case because a procedural right to protect concrete interests was violated. Brief for Respondents, Myra Brown et al. at 22. Brown explains that “some possibility” that the Plan will be reconsidered is the proper standard. Id. at 22, 25. Brown maintains that all three requirements of standing are satisfied. Id. at 27. First, Brown argues that the lack of legal entitlement does not negate concrete interests, just like applicants for a license can sue to enforce a procedural requirement even though they have no legal entitlement to the license. Id. at 27. Second, Brown states that the injuries are traceable to the Plan because the eligibility requirements prevented Brown from receiving loan relief. Id. at 28. Third, Brown argues that the injuries are redressable because there is “some possibility” that the court may vacate the Plan. Id. at 28–29. Brown states that whether the government could provide student loan relief under the HEROES Act is not the issue. Id. at 29. Rather, Brown explains that the injuries are redressable because the Secretary could reconsider the eligibility requirement and extend relief to Brown. Id.

INTERPRETATION OF THE HEROES ACT

The Department of Education argues that the Plan is authorized under the HEROES Act. Brief for Petitioners at 34. In particular, the Department of Education points out that the COVID-19 pandemic is a national emergency, the Plan covers the affected disaster area, and the borrowers eligible for debt forgiveness are the affected individuals. Id. at 35, 42. The Department of Education also highlights that the evidence and analysis support that debt forgiveness for low-income households is necessary because they are at a higher risk of default and delinquency. Id. 35, 43. The Department of Education argues that there is no need to prove that the emergency directly caused economic hardship. Id. at 45. Additionally, the Department of Education contends that, under Title IV of the Act, the provisions governing debt forgiveness apply to student financial assistance programs. Id. at 36. The Department of Education also emphasizes that the HEROES Act gives the Secretary substantial discretion to determine appropriate relief by authorizing the Secretary to do what the Secretary “deems” necessary rather than what is in fact necessary. Id. at 36–37.

Brown emphasizes that, but for the HEROES Act, the HEA and the APA require negotiated rulemaking and notice-and-comment procedures before adopting the Plan. Brief for Respondents at 34–35. Brown claims that the HEROES Act does not excuse the Department of Education from such procedures. Id. at 35–36. Brown specifies that the negotiated-rulemaking requirements apply because the Plan is a “regulation” under the HEA. Id. at 36–37. Brown further points out that an agency must show an express carve-out exception to avoid notice-and-comment requirements. Id. at 37. Brown argues that such an exception under the HEROES Act only applies to authorized modifications, and the Secretary has no discretion to determine what a modification is. Id. at 37–39. Brown emphasizes that the Department of Education’s interpretation of the HEROES Act gives the Secretary too much authority. Id. at 39. Brown further contends that the Secretary cannot avoid the procedural requirement by relabeling it as a modification under the HEROES Act. Id. at 39.

APPLICABILITY OF THE MAJOR QUESTIONS DOCTRINE

The Department of Education claims that the major questions doctrine, which holds that courts should not defer to an agency’s statutory interpretation on questions involving great economic, policy, or political significance, does not apply in this case. Brief for Petitioners at 46. The Department of Education explains that this Court typically applies the usual rules of statutory interpretation rather than the major questions doctrine to review economically and politically important executive actions. Id. at 46–47. According to the Department of Education, the major questions doctrine only applies in extraordinary circumstances where an agency claims expansive authority based on “modest words” or “vague terms,” which is not the case here. Id. at 47–48. Rather, the Department of Education points out that the HEROES Act grants the Secretary direct and concrete authority to provide student loan relief in national emergencies. Id. at 50. Furthermore, the Department of Education explains that every case where the Court applied the major questions doctrine involved regulatory power, but this case only involves a government-benefit program. Id. at 48–49. The Department of Education further posits that the cost of a government program alone does not mean that plain statutory meaning can be ignored. Id. at 47.

The Department of Education further highlights that the Secretary’s authority only applies to limited circumstances, for a limited class, and for limited objectives with specific measures. Brief for Petitioners at 50. The Department of Education further maintains that even if the Court applies the major questions doctrine, the Plan is constitutional. Id. at 53. The Department of Education argues that the HEROES Act unambiguously authorizes the Secretary to “waive or modify any statutory or regulatory provision,” which complies with the doctrine’s requirement. Id. at 55. The Department of Education asserts that the Secretary has the authority to determine the scope of borrowers and the relief of the amount that is necessary to achieve the purpose of the HEROES Act, which are not fundamental questions that the major questions doctrine safeguards. Id. at 56.

Brown counters that the major questions doctrine applies in this case. Brief for Respondents at 41. Brown argues that because the Plan proposes to cancel debts of 40 million borrowers amounting to $400 billion, it has significant economic and political impact and thus satisfies one of the requirements of the major questions doctrine. Id. at 41–42. Brown also points out that, while loan forgiveness is highly controversial, the HEROES Act was never controversial because Congress intended to limit the scope of the Act to active-duty military. Id. at 42–43. In addition, Brown asserts that Congress did not give the Secretary authority to approve the Plan because Congress never explicitly authorized it. Id. at 44. Brown points out that the scale and the impact of the action are unprecedented. Id. at 45. In opposition to the Department of Education’s argument that the Secretary has the authority to determine the scope of borrowers and the amount of the forgivable debt, Brown argues that this authority is too broad. Id. at 46. Brown also argues that neither the HEROES Act’s text nor its legislative history authorizes the Secretary to cancel student-loan debts. Id. at 47.

In addition, Brown posits that the Plan cannot be justified under the waiver authority, as the Secretary never waived any provision to approve the Plan. Id. at 48. Brown asserts that the Plan makes fundamental changes in the statutory scheme by modifying provisions, which the Secretary is without power to do. Id. at 48-49. Additionally, Brown asserts that the Plan exceeds statutory authority because the HEROES Act only allows waivers to protect borrowers from being placed in a worse position, and the proposed Plan places borrowers in “a far better position.” Id. at 51. Brown also maintains that the pandemic is not the cause of the borrowers’ difficulties, and they need loan forgiveness regardless of the national emergency. Id. at 53. Brown criticizes the Plan for being grossly over-inclusive; for example, it even includes nine million individuals living abroad during the pandemic who are not residing in a “disaster area.” Id. at 54­-55.