NRPLUS MEMBER ARTICLE J ustice Elena Kagan is the most respected of the current and recent liberals on the Supreme Court across the aisle. As is true of Chief Justice John Roberts, even Kagan’s fiercest critics acknowledge that she’s an elite legal talent, an incisive thinker, and a graceful writer. In spite of her thin résumé before the Court, most anyone would be happy to have her as their lawyer to make the best possible case for their position.

The chief conservative critique of Kagan is not that she lacks skill or brains but that she lacks principles: As is generally true of legal liberals and progressives, she has no overarching or constraining theory of the Constitution or statutory interpretation, but tends to just argue her way to whatever result she wants. Even her most famous departure from her own side, in voting to strike down the coercive provisions of Obamacare’s Medicaid expansion in NFIB v. Sebelius, can be explained as a strategic concession to Roberts to get him on board with upholding the core provisions of the statute.

So, when Kagan is visibly straining to make an argument stand up, it’s probably because the argument is really flimsy. That’s exactly what was on display in her dissent in Biden v. Nebraska, in which she applied a blinkered and tortured reading of the language of the 2003 HEROES Act to claim that Joe Biden’s Education Department had the power to unilaterally forgive $430 billion in student loans for 43 million borrowers nationwide. Behind the confident air of authority in Kagan’s dissent, the cracks are apparent. What remains is nothing but hollow sophistry.

What Congress Said, and Didn’t Say

Biden’s problem, and Kagan’s, was the language of the HEROES Act. Passed in 2003 mainly to deal with soldiers and victims of terrorist attacks, the statute empowers the Secretary of Education to

waive or modify any statutory or regulatory provision applicable to the student financial assistance programs under title IV of the [Higher Education Act] as the Secretary deems necessary in connection with a war or other military operation or national emergency [declared by the president]. [Emphasis added.]

The purpose of this act is supposed to be limited: It only empowers those waivers and modifications “as may be necessary to ensure” that any recipient of student financial assistance under title IV who “resides or is employed in an area that is declared a disaster area by any Federal, State, or local official in connection with a national emergency” or who “suffered direct economic hardship as a direct result of a war or other military operation or national emergency, as determined by the Secretary . . . are not placed in a worse position financially in relation to that financial assistance because of” such events. Congress did, however, make clear that “the Secretary is not required to exercise the waiver or modification authority under this section on a case-by-case basis” — a departure from typical practice under the Higher Education Act — but could instead publish new, revised rules governing all affected individuals.

It is clear from the very drafting of this language that Congress did not plan on a Secretary of Education deciding to place borrowers across the entire country in a better position than they occupied before a national emergency by wiping out debts they owed before the emergency started. That’s why the language says “waive or modify any [applicable] statutory or regulatory provision.” The statute could have said that the secretary in a national emergency has the power to discharge or compromise or release loans, or even to modify amounts owed or waive rights or claims to repayment, but it does not.

It did all of those things in other parts of the HEROES Act or the Higher Education Act.

For example, there are specific situations in which Congress, in the Higher Education Act, provided an explicit power to “discharge” loans for classes of borrowers meeting particular conditions:

The same section further provides, when such a discharge is made regarding a loan owed to someone other than the secretary of education, that the secretary must “pay to the holder of a loan . . . the amount of the unpaid balance of principal and interest owed on such loan,” and dictates terms for when that payment should be made.

Or consider how the Higher Education Act empowers the secretary, in certain circumstances, to release particular people from their loans, such as when settling lawsuits. For example:

It requires heroic efforts to pretend that “waive or modify any . . . statutory or regulatory provision” means exactly the same thing as the same statute’s considerably more specific powers to “discharge,” “compromise,” or “release” the debts themselves. Congress provided specific situations in which that can be done, used more specific language in saying what could be done, and provided procedural details for how to carry it out. The HEROES Act has none of this, and used narrower verbs (waive, modify) connected to narrower objects (statutory or regulatory provisions relating to loans, rather than the loans themselves).

What ‘Modify’ Means

I quoted above Congress’s explanation that it limited the secretary of education to waivers and modifications that would ensure that recipients not be placed in a worse position. That was, however, one of five instructions in the HEROES Act regarding what the secretary was directed to ensure. Two of these aimed at reductions of administrative and reporting burdens such as “due diligence requirements and reporting deadlines” in order to “avoid inadvertent, technical violations or defaults.” The other two used the term “modified” to reference changes to qualifying rules, or in one very specific situation, states that calculation “of the amount a student is required to return” under certain programs involving students who withdraw from college “may be modified so that no overpayment will be required to be returned or repaid.” Statutes are typically not read so that one item on a list is vastly different from the others.

Finally, the HEROES Act includes two reporting provisions, to “publish the waivers or modifications of statutory and regulatory provisions” and the new “terms and conditions . . . in lieu of” the prior “statutory and regulatory provisions,” ” and to report to Congress on their impact while including “recommendations for changes to the statutory or regulatory provisions that were the subject of such waiver or modification.”

If “statutory or regulatory provisions” means rules and regulations governing the administration of loans, this last provision makes sense: Congress wants a report on whether its own rules proved so onerous to apply during an emergency, or whether the program worked so well without them, that it should consider getting rid of the red tape. But if “statutory or regulatory provisions” means the student loans themselves are gone, what is the secretary’s report supposed to say? “Stop lending people money”?

What Congress Delegated

As Justice Amy Coney Barrett’s thoughtful concurring opinion noted, using a hypothetical example of parents leaving a credit card with a babysitter and asking to make sure the kids have fun, the essential nature of a statute of this kind is that it delegates authority. Specifically, with regard to the student-loan programs, Congress has appropriated funds to make loans, and delegated to the secretary of education certain powers over making individual loans and managing their collection.

How would we normally read this kind of language, directed to a debt collector? Picture a bank in the private sector: It hires a servicer to collect outstanding loan balances. It offers some specific contractual situations in which loans may be discharged, and others in which the servicer may compromise and release delinquent debts. Then, the contract says that in some emergency situations, the servicer can waive or modify the provisions, but has to report back on the new “terms and conditions” governing repayment. Would any banking lawyer expect a court to read that contract and say, “Yeah, in an emergency you can just wipe out all the loans?” That’s insane.

Moreover, emergency powers are, by their definition, assumed to be temporary. Congress authorized waivers and modifications of statutory provisions, required that these be made only to address harms as a “direct result” of wars and other disasters, and required that such waivers and modifications be limited to preventing people from being worse off as a result of the emergency. In doing so, Congress would reasonably have anticipated that its somewhat vague instructions would allow the secretary of education to clear red tape or let people buy time before their next repayment.

However, it is simply not a common-sense reading of the language to allow permanent, nationwide debt forgiveness for tens of millions of people — let alone to allow this to be done at the very end of a two-and-a-half-year nationwide state of emergency during which those same people were already relieved from making payments.

That’s consistent with how the statute was read until now; to pick one example, the HEROES Act was used to waive a rule that required uninterrupted public service in order to qualify for a public-service loan-forgiveness program, as an acknowledgement that a disaster may interrupt the borrower’s ability to qualify under that provision. So, that narrow aspect of that provision was waived, and a modified substitute was made available for affected individuals.

What Roberts Said

Much of the above was ably explained by Roberts in his opinion for the majority. Roberts looked specifically at the normal statutory meaning of the word “modify” and observed that the Court typically has not read it to mean “eliminate.” Quoting Justice Antonin Scalia, Roberts quipped that “the Secretary’s plan has ‘modified’ the cited provisions only in the same sense that the French Revolution ‘modified’ the status of the French nobility — it has abolished them and supplanted them with a new regime entirely.” In basic English, we wouldn’t say you modified the terms of a loan by wiping out the obligation to pay the money back.

“Waiver” is no better, Roberts concluded, because the Biden administration wasn’t waiving any provision; it was wiping out loans entirely.

Finally, Roberts noted that the HEROES Act’s reference to how the secretary has to publish the rules that were waived or modified, and the newly substituted “terms and conditions,” was “a humdrum reporting requirement” rather than an invitation to read “waive or modify” as an authorization to simply wipe the books clear of half a trillion dollars’ worth of loans.

What Kagan Needed to Say

Kagan’s central argument against Roberts’s analysis is her claim that, by using the term “waive or modify,” Congress has granted broader authority than if it had used either word by itself. Thus, she accused Roberts of “picking the statute apart, and addressing each segment of Congress’s authorization as if it had nothing to do with the others”:

Each aspect of the Secretary’s authority – waiver, modification, replacement – is kept sealed in a vacuum-packed container. . . . The majority fails to read the statutory authorization right because it fails to read it whole . . .

The majority’s cardinal error is reading “modify” as if it were the only word in the statutory delegation. Taken alone, this Court once stated, the word connotes “increment” and means “to change moderately or in minor fashion.” . . . [But] in the HEROES Act, the dominant piece of context is that “modify” does not stand alone. It is one part of a couplet: “waive or modify.” The first verb, as discussed above, means eliminate – usually the most substantial kind of change.

If you sit and think about the wording for a moment, you can spot the logical fallacies here. The statute doesn’t say “waive and modify,” it says “waive or modify.” The two things are presented as alternatives, which is why Roberts took each of them separately.

Moreover, Kagan is the one who simply blew by the entire rest of the statutory structure. Eliminate what? She never addresses the point that waiving or modifying provisions is not the same thing as waiving or modifying the underlying indebtedness. She also argued that the subsequent requirement to report the revised rules suggested a congressional intent to allow the secretary to simply rewrite the entire statute. She appeared to claim that the secretary can expand existing and carefully crafted loan-forgiveness programs to cover new borrowers, rather than simply being authorized to alter provisions governing those borrowers’ loans at the time of the emergency.

For all of her talk about reading statutes whole, Kagan paid no attention to any of the other statutory provisions I quoted above: not the distinct language used elsewhere in the Higher Education Act to grant broader powers to discharge or compromise loans, not the other uses of the term “modified,” and not the rest of the reporting requirement.

Having excerpted two sentences of the HEROES Act out of the rest of the statute and wholly ignored the language and structure of the Higher Education Act, Kagan proceeded to sound the alarm about the consequences of the majority’s reading — in terms that show that she also ignored the entire context of our constitutional structure. She argued that the HEROES Act aimed to ensure that “the Secretary should have the power to offer relief without waiting for another, incident-specific round of legislation. Emergencies, after all, are emergencies, where speed is of the essence.” But the point of delegating emergency powers to the executive is precisely so the executive can make those decisions that can’t wait for Congress — not permanent changes that take Congress’s zealously guarded power of the purse out of its hands for good.

In this case, Congress legislated repeatedly during this emergency to provide over a trillion dollars in aid to all manner of Americans, including some specific provisions dealing with student loans. It had more than adequate time to do student-loan relief, was under significant political pressure from some quarters to do so, and declined.

Thus, Kagan’s hypothetical about whether the secretary would have power to forgive loans to people in a city irradiated by a dirty bomb misses the point. Could the secretary, in that situation, find a variety of procedural ways to delay repayment obligations until Congress has the opportunity to reconvene and consider long-term relief? Yes. But the language of the statute, giving discretion over “provisions” governing the details of repayment, is quite sensibly read to leave with Congress the power it would normally expect to keep: to decide for itself what permanent aid to provide to the affected area.

Kagan, instead, blindly insisted that if the secretary could not provide a massive loan amnesty, he could do nothing even for the shortest period of time. That ignores political reality and the actual context of the case, in which the secretary ordered this relief two and a half years into the “national emergency,” after the president had publicly stated that the emergency was over.

Kagan also ignored bedrock principles of American property and contract law. The HEROES Act requires the secretary to report back later with recommended changes so that Congress can consider whether to make his temporary expedients permanent. But by forgiving the principal of outstanding loans, the secretary has taken the power of permanent decision away from the ultimate lawmaker. If the secretary pauses repayments and Congress later disagrees, it can mandate a more rapid post-emergency repayment schedule to make the government whole. If the secretary waives the accrual of interest, and Congress later disagrees, it can impose a higher prospective interest rate to make the government whole. These are not unlimited powers, but Congress would be acting well within its constitutional powers to reimpose terms that make the borrower liable up to the originally contracted long-term value of the loan.

When the secretary eliminates some or all of the principal balance, however, the borrowers have a much stronger claim that the government has created vested property rights that Congress may not take if it then tries to collect on the forgiven loans. Politically as well as legally, Congress has much more limited recourse once the secretary of education presents it with a fait accompli of loans forgiven. Kagan knows this legal and political backdrop, but pretended not to; instead, she ranted at length about how the majority’s reading of the statute would preclude even temporary forms of relief from loan repayment. That is blind literalism and the extraction of statutory language from context at its worst.

By contrast, Kagan’s view of the statute — in which the secretary can rewrite the entire statutory scheme to make permanent changes to the outstanding obligations held by the government, and can use emergencies to bulldoze narrow and careful statutory limits to programs to discharge and forgive loans — has no limiting principle whatsoever. Kagan emphasized that her view of the secretary’s discretion is cabined by the statutory requirement of narrowly tailoring relief such that it only places recipients in no worse position than they were before the pandemic. But this is a mirage, given that Kagan simultaneously argued that nobody had standing to challenge the secretary’s decision at all. She also argued that, even if asked to review the secretary’s decision, the Court was not capable of subjecting it to judicial review:

The majority gives no reason for concluding that the pause would work just as well to ensure that borrowers are not placed in a worse position financially in relation to their loans because of the COVID emergency. . . . How could it possibly know?

This is Calvinball: a game with no rules except that Joe Biden wins.