Nos.

22-506 & 22-535

IN THE
Supreme Court of the United States
___________
JOSEPH R. BIDEN, JR.,
PRESIDENT OF THE UNITED STATES, et al.,
Petitioners,
v.
STATE OF NEBRASKA, et al.,
___________ Respondents.
U.S. DEPARTMENT OF EDUCATION, et al.,
Petitioners,
v.
MAYA BROWN, et al.,
___________ Respondents.
On Writs of Certiorari Before Judgment
to the United States Courts of Appeals
for the Eighth and Fifth Circuits
___________
BRIEF OF MICHAEL W. MCCONNELL,
WILLIAM P. BARR, JOHN COGAN,
MITCH DANIELS, CHRISTOPHER DEMUTH,
C. BOYDEN GRAY, JAMES C. MILLER III,
JOHN MICHAEL “MICK” MULVANEY,
MICHAEL B. MUKASEY, JOHN B. TAYLOR,
AND PETER J. WALLISON AS AMICI CURIAE
IN SUPPORT OF RESPONDENTS
___________
WILLIAM R. LEVI*
DANIEL J. HAY
PETER A. BRULAND
LAURA C. MULHERIN
JEREMY ROZANSKY†
MATTHEW H. SIMPSON†
SIDLEY AUSTIN LLP
1501 K Street, N.W.
Washington, D.C. 20005
(202) 736-8000
[email protected]
Counsel for Amici Curiae
February 3, 2023 *Counsel of Record
[Additional information on inside cover]
 † Messrs. Rozansky and Simpson are admitted only
in Illinois and Virginia, respectively, and are practic-
ing law in the District of Columbia pending admission
to the D.C. Bar and under the supervision of principals
of the firm who are members in good standing of the
D.C. Bar.
 i
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ................................ ii
INTEREST OF AMICI CURIAE ......................... 1
SUMMARY OF ARGUMENT ............................. 4
ARGUMENT ........................................................ 6
I. The Framers Designed the Power of the
Purse as a Check on Tyranny ....................... 6
A. The Common Law Evolution of the
Power of the Purse .................................. 7
B. Congress’s Exclusive Power of the
Purse ........................................................ 11
II. Executive Encroachment on the Power of the
Purse Threatens Constitutional Order ........ 13
A. Presidents Have Repeatedly Usurped
Congress’s Spending Authority .............. 13
B. Spending Statutes Must Be Strictly Con-
strued to Safeguard Separation of Pow-
ers ............................................................ 19
III. Congress Did Not Authorize the Student-
Loan Forgiveness Program ........................... 22
CONCLUSION .................................................... 29
 ii
TABLE OF AUTHORITIES
CASES Page
Arizona v. Mayorkas, 143 S. Ct. 478 (2022) 25
Dellmuth v. Muth, 491 U.S. 223 (1989) ....... 20
Fed. Mar. Comm’n v. Seatrain Lines, Inc.,
411 U.S. 726 (1973) ................................... 20
Gregory v. Ashcroft, 501 U.S. 452 (1991)..... 20
Harrison v. PPG Indus., Inc., 446 U.S. 578
(1980) ......................................................... 24
Johnson v. United States, 529 U.S. 694
(2000) ......................................................... 20
La. Pub. Serv. Comm’n. v. FCC, 476 U.S. 355
(1986) ......................................................... 19, 20
Metro. Wash. Airports Auth. v. Citizens for
the Abatement of Aircraft Noise, Inc., 501
U.S. 252 (1991) .......................................... 12
Morrison v. Nat’l Australian Bank Ltd., 561
U.S. 247 (2010) .......................................... 20
Sissel v. U.S. Dep’t of Health & Hum. Servs.,
799 F.3d 1035 (D.C. Cir. 2015) ................. 12
Train v. City of New York, 420 U.S. 35
(1975) ......................................................... 15
U.S. Dep’t of Navy v. FLRA, 665 F.3d 1339
(D.C. Cir. 2012) ......................................... 12
U.S. House of Representatives v. Burwell,
185 F. Supp. 3d 165 (D.D.C. 2016), vacated
in part sub nom. U.S. House of
Representatives v. Azar, 2018 WL 8576647
(D.D.C. May 18, 2018) ................................ 17

CONSTITUTION, STATUTES AND REGULATIONS

U.S. Constitution
art. I, § 8 .............................................. . 5, 7, 11
art. I, § 9, cl. 7 ...................................... . 5, 7, 11
art. II, § 1 ................................................ 19
 iii
TABLE OF AUTHORITIES – continued
Page
Act of Sept. 30, 1961, Pub. L. No. 87-329, 75
Stat 717 ..................................................... 15
Joint Consolidation Loan Separation Act,
Pub. L. No. 117-200, 136 Stat. 2219
(2022) ......................................................... 22
2 U.S.C. § 661c(d)(1) ..................................... 6
12 U.S.C. § 1150 .......................................... 29
§ 5202(5) ..................................... 16
§ 5211 .......................................... 16
20 U.S.C. § 1082(a)(6) ................................. 23
§ 1098aa(b)(6) ............................. 23
§ 1098bb(a) .................... 23, 24, 26, 27
§ 1098ee(2) ............................. 24, 25
31 U.S.C. § 1301(d) ..................................... 5, 20
§ 1324 .......................................... 17
42 U.S.C. § 5174(e) ...................................... 18
§ 5177 .......................................... 18
§ 18071 ........................................ 17
26 Fed. Reg. 1789 (Mar. 1, 1961) ................. 15
38 Fed. Reg. 19,582 (July 13, 1973) ............. 14
87 Fed. Reg. 61,512 (Oct. 12, 2022) ............. 24

LEGISLATIVE HISTORY
H.R. 6708 (117th Cong. 2022) ...................... 22
H.R. 4797 (117th Cong. 2022) ...................... 22
149 Cong. Reg. H2522 (daily ed. Apr. 1,
2003) .......................................................... 26

HISTORICAL DOCUMENTS
Bill of Rights of 1689
1 W. M., sess. 2, c. 2, § 2, cl. 4 ................ 10
1 W. M., sess. 2, c. 2, § 1, cl. 4 ................ 10
William Blackstone, Commentaries on the
Laws of England (1765) ............................ 8, 9
 iv
TABLE OF AUTHORITIES – continued
Page
3 The Debates in the Several State
Conventions on the Adoption of the Federal
Constitution (Jonathan Elliot 2d ed.,
1891) .......................................................... 12
Thomas Jefferson, Third Annual Message
(Oct. 17, 1803), available at https://
www.presidency.ucsb.edu/documents/thir
d-annual-message ..................................... 14
The Federalist
No. 30 (Alexander Hamilton) ................. 11
No. 48 (James Madison) ......................... 12
No. 58 (James Madison) ......................... 7, 11
F.W. Maitland, The Constitutional History of
England (H.A.L. Fisher ed., 1908) ........... 8
Montesquieu, The Spirit of the Laws bk. XI,
ch. VI (1748) .............................................. 12
F.M. Nichols, On Feudal and Obligatory
Knighthood, 39 Archaeologia 189 (1863) . 9
3 Joseph Story, Commentaries on the Consti-
tution of the United States (1833) ............. 11, 13
Alexis de Tocqueville, Democracy in America
(Harvey Mansfield & Delba Winthrop eds.
& trans., 2002) .......................................... 12
St. George Tucker, View of the Constitution
of the United States (1803) (Clyde N. Wil-
son ed. 1999) .............................................. 13

SCHOLARLY AUTHORITIES
Christian I. Bale, Checking the Purse: The
President’s Limited Impoundment Power,
70 Duke L.J. 607 (2020) ............................ 14
 v
TABLE OF AUTHORITIES – continued
Page
Josh Chafetz, Congress’s Constitution:
Legislative Authority and the Separation
of Powers (2017) ............................ 8, 9, 10, 12
Josh Chafetz, Executive Branch Contempt of
Congress, 76 U. Chi. L. Rev. 1083 (2009) . 8
Neal E. Devins, Regulation of Government
Agencies Through Limitation Riders, 1987
Duke L.J. 456 ............................................ 21
Gerald A. Figurski, Presidential
Impoundment of Funds: A Constitutional
Crisis, 7 Akron L. Rev. 107 (1974) ........... 14
Louis Fisher, Presidential Spending
Discretion and Congressional Controls, 37
Law & Contemp. Probs. 135 (1972) ... ..... 13, 15
Pauline Gregg, King Charles I (1984) ......... 9
H.H. Leonard, Distraint of Knighthood: The
Last Phase, 1625-41, 63 History 23
(1978) ......................................................... 9
Michael W. McConnell, The President Who
Would Not Be King: Executive Power under
the Constitution (2020)............. ... 7, 8, 10, 11, 20
Gillian E. Metzger, Taking Appropriations
Seriously, 121 Colum. L. Rev. 1075
(2021) ......................................................... 7, 20
Wm. Bradford Middlekauff, Twisting the
President’s Arm: The Impoundment Con-
trol Act as a Tool for Enforcing the Princi-
ple of Appropriation Expenditure, 100 Yale
L.J. 209 (1990) ........................................... 14
Abner J. Mikva, Congress: The Purse, the
Purpose, and the Power, 21 Ga. L. Rev. 1
(1986) ......................................................... 7
 vi
TABLE OF AUTHORITIES – continued
Page
Douglass North & Barry Weingast,
Constitutions and Commitment: The
Evolution of Institutions Governing Public
Choice in in Seventeenth-Century
England, 49 J. Econ. Hist. (1989)............. 8
B.W. Quintrell, Oliver Cromwell and
Distraint of Knighthood, 57 Bull. of the
Inst. of Hist. Rsch. 224 (1984) .................. 19
Kate Stith, Congress’ Power of the Purse, 97
Yale L.J. 1343 (1988) ................................ 10
G.M. Trevelyan, The English Revolution,
1688-1689 (1965) ....................................... 9

OTHER AUTHORITIES
Joe Biden, Joe Biden Outlines New Steps to
Ease Economic Burden on Working People,
Medium (Apr. 9, 2020), https://me-
dium.com/@JoeBiden/joe-biden-outlines-
new-steps-to-ease-economic-burden-on-
working-people-e3e121037322 ................. 22
The Biden-Harris Administration’s Student
Debt Relief Plan Explained, Federal Stu-
dent Aid, https://studentaid.gov/debt-re-
lief-announcement (last visited Jan. 20,
2023) .......................................................... 24
Brennan Center, A Guide to Emergency
Powers and Their Use (updated June 9,
2022), https://www.brennancenter.org/
our-work/research-reports/guide-
emergency-powers-and-their-use ............. 28
 vii
TABLE OF AUTHORITIES – continued
Page
Brennan Center, Declared National
Emergencies Under the National
Emergencies Act (updated Dec. 12, 2022),
https://www.brennancenter.org/our-work/
research-reports/declared-national-
emergencies-under-national-emergencies-
act .............................................................. 28
Career Outlook, Education Pays, 2020, U.S.
Bureau of Labor Statistics (June 2021),
https://www.bls.gov/careeroutlook/2021/
data-on-display/education-pays.htm ........ 27
CBO, Costs of Suspending Student Loan
Payments and Cancelling Debt (Sept. 26,
2022), https://www.cbo.gov/system/files/
2022-09/58494-Student-Loans.pdf ........... 6
Erwin Chemerinsky, Trump Just Made An-
other Huge and Illegal Power Grab. Be
Very Alarmed, L.A. Times (Aug. 10, 2020),
https://www.latimes.com/opinion/story/
2020-08-10/president-trump-executive-or-
der-unconstitutional ................................. 18
Curtis W. Copeland, Cong. Rsch. Serv.,
RL34354 Congressional Influence on Rule-
making and Regulation Through Appro-
priations Restrictions (updated Aug. 5,
2008), https://www.everycrsreport.com/
files/20080805_RL34354_5e68cc6bc4a813
c248faeef1506e2f04f3b61000.pdf............... 21
Council on Foreign Relations, Demographics
of the U.S. Military (updated July 13,
2020), https://www.cfr.org/backgrounder/
demographics-us-military ......................... 25
 viii

TABLE OF AUTHORITIES – continued

Page
Federal Student Loan Debt Relief in the Con-
text of Covid-19, Cong. Rsch. Serv., R46314
(updated Oct. 12, 2022), https://crsre-
ports.congress.gov/product/pdf/R/R46314 27
Sharon LaFraniere & Noah Weiland, U.S.
Plans to End Public Health Emergency for
Covid in May, N.Y. Times (Jan. 30,
2023) .......................................................... 25
Adam S. Minsky, Pelosi: President Biden
Does Not Have Power To Cancel Student
Loan Debt—What It Means For
Borrowers, Forbes (July 28, 2021), https://
www.forbes.com/sites/adamminsky/2021/
07/28/pelosi-president-biden-does-not-
have-power-to-cancel-student-loan-
debt/?sh=6c9ef9e75504 ............................. 23
Monthly Labor Review, Covid-19, Educa-
tional Attainment, and the Impact on
American Workers, U.S. Bureau of Labor
Statistics (Sept. 2020), https://
www.bls.gov/opub/mlr/2020/beyond-bls/
covid-19-educational-attainment-and-the-
impact-on-american-workers.htm ............ 27
Nat’l Ass’n of Student Fin. Aid Adm’rs,
Legislative Tracker: Loan & Repayments
(Jan. 5, 2023), https://www.nasfaa.org/leg-
islative_tracker_loans_repayment ........... 22
Richard Nixon, The President’s News
Conference (Jan. 31, 1973), https://
www.presidency.ucsb.edu/documents/the-
presidents-news-conference-86 ................. 14
 ix
TABLE OF AUTHORITIES – continued
Page
Barack Obama, Remarks by the President
and First Lady at the College Opportunity
Summit (Jan. 16, 2014), https://
obamawhitehouse.archives.gov/the-press-
office/2014/01/16/remarks-president-and-
first-lady-college-opportunity-summit ..... 17
OMB, Analysis Perspectives: Fiscal Year
2023, https://www.govinfo.gov/content/
pkg/BUDGET-2023-PER/pdf/BUDGET-
2023-PER.pdf (last accessed Jan. 31,
2023) .......................................................... 28, 29
Alicia Parlapiano et al., Where $5 Trillion in
Pandemic Stimulus Money Went, N.Y.
Times (Mar. 11, 2022), https://www.ny-
times.com/interactive/2022/03/11/us/how-
covid-stimulus-money-was-spent.html .... 27
Henry M. Paulson, Jr., Determination, Dep’t
of the Treasury (Dec. 19, 2008), https://
ypfsresourcelibrary.blob.core.win-
dows.net/fcic/YPFS/2008-12-19%20Paul-
son%20determination%20to%20Con-
gress.pdf .................................................... 16
Scott Pelley, President Joe Biden: The 2022
60 Minutes Interview (Sept. 18, 2022),
https://www.cbsnews.com/news/president-
joe-biden-60-minutes-interview-tran-
script-2022-09-18/ ..................................... 25
Remarks on the American Auto Industry, 44
Weekly Comp. Pres. Doc. 1568 (Dec. 19,
2008) .......................................................... 16
 x
TABLE OF AUTHORITIES – continued
Page
Jake Sherman & John Bresnahan, White
House Eyes Executive Orders to Upend Vi-
rus Negotiations, Politico (Aug. 4, 2020),
https://www.politico.com/news/2020/08/
04/trump-executive-order-coronavirus-
391305 ....................................................... 18
Jim Tankersley, Trump Won’t Order a Cap-
ital Gains Tax Cut, for Now, N.Y. Times
(Sept. 11, 2019), https://www.ny-
times.com/2019/09/11/business/trump-
capital-gains.html ..................................... 21
Donald J. Trump, Memorandum on Author-
izing the Other Needs Assistance Program
for Major Disaster Declarations Related to
Coronavirus Disease 2019 (Aug. 8, 2020),
https://trumpwhitehouse.archives.gov/
presidential-actions/memorandum-au-
thorizing-needs-assistance-program-ma-
jor-disaster-declarations-related-corona-
virus-disease-2019/ ................................... 18
Sen. Elizabeth Warren, Press Release, War-
ren, Schumer, Pressley, Colleagues: Presi-
dent Biden Can and Should Use Executive
Action to Cancel up to $50,000 in Federal
Student Loan Debt Immediately (Feb. 4,
2021), https://www.warren.senate.gov/
newsroom/press-releases/warren-
schumer-pressley-colleagues-president-
biden-can-and-should-use-executive-ac-
tion-to-cancel-up-to-50000-in-federal-stu-
dent-loan-debt-immediately ..................... 23
 INTEREST OF AMICI CURIAE1
Amici curiae are academics and former government
officials who possess, collectively, centuries of experi-
ence in the constitutional and statutory strictures of
U.S. budgetary policy. Amici understand Congress’s
power of the purse has served as an enduring bulwark
against the expansion of executive power, and are con-
cerned that recent actions by American Presidents—
most recently, President Biden’s student loan for-
giveness program—erode this crucial element of our
constitutional structure.
Michael W. McConnell is the Richard and Frances
Mallery Professor of Law, Director of the Constitu-
tional Law Center at Stanford University, and Senior
Fellow at the Hoover Institution. He previously served
as a judge on the United States Court of Appeals for
the Tenth Circuit. From 1981-1983, he served as As-
sistant General Counsel of the Office of Management
and Budget (“OMB”), where he dealt frequently with
issues of spending and appropriations. Professor
McConnell has published widely in the field of execu-
tive power, including The President Who Would Not Be
King: Executive Power under the Constitution (2020).
William P. Barr is a Distinguished Fellow at Hud-
son Institute. He served as Attorney General of the
United States in 1991-1993 and again in 2019-2020.
He was Deputy Attorney General in 1990-1991 and As-
sistant Attorney General for the Office of Legal Coun-
sel in 1989-1990. He has also worked at the Central
Intelligence Agency (1971-1977) and on the White
House domestic policy staff (1982-1983). He has

1 No counsel for any party authored this brief in whole or in

part, and no person or entity aside from amici and their counsel
funded its preparation or submission.
 2
written and spoken widely on the President’s constitu-
tional powers.
John F. Cogan is the Leonard and Shirley Ely Sen-
ior Fellow at the Hoover Institution. His government
service includes Assistant Secretary for Policy in the
U.S. Department of Labor (1981-1983), Associate Di-
rector of the OMB from 1983-1985, and Deputy Direc-
tor of OMB (1988-1989). He has also served on numer-
ous U.S. government commissions. He has written ex-
tensively on congressional appropriations, federal en-
titlement programs, fiscal policy, and the federal
budget process. His book, The High Cost of Good Inten-
tions: A History of Federal Entitlement Programs, is
the 2018 winner of the Hayek Prize.
Mitch Daniels served as Director of the OMB
(2001-2003) following an extensive career in business.
He was then elected to two terms as Governor of Indi-
ana (2005-2013) and was President of the Purdue Uni-
versity System (2013-2022). Throughout his ten years
at Purdue, he froze tuition, reduced charges for room
and board, and introduced several major improve-
ments in the terms and transparency of student loans.
He is co-chair of the Committee for a Responsible Fed-
eral Budget.
Christopher DeMuth is a Distinguished Fellow at
Hudson Institute and was President of the American
Enterprise Institute for Public Policy Research from
1986 to 2008. He served as Administrator of the Office
of Information and Regulatory Affairs (“OIRA”) (1981-
1984) and Executive Director of the Presidential Task
Force on Regulatory Relief (1981-1983), where he dealt
regularly with issues of congressional appropriations,
appropriation riders, and delegation of regulatory au-
thorities. His publications include Agency Finance in
 3
the Age of Executive Government, 24 Geo. Mason L.
Rev. 555 (2017) (with Michael S. Greve).
C. Boyden Gray is founding partner of Boyden
Gray & Associates LLP and a senior fellow of the C.
Boyden Gray Center for the Study of the Administra-
tive State. He served as White House Counsel (1989-
1993), U.S. Ambassador to the European Union (2006-
2007), Legal Counsel to Vice President George H.W.
Bush (1981-1989), and Law Clerk to Supreme Court
Chief Justice Earl Warren (1968). He has written
widely on issues of administrative law.
James C. Miller III served as Director of the OMB
(1985-1988), Chairman of the Federal Trade Commis-
sion (1985-1988), and Administrator of OIRA and Ex-
ecutive Director of the Presidential Task Force on Reg-
ulatory Relief (1981). He has been a fellow of the Amer-
ican Enterprise Institute; the Hoover Institution,
Stanford University; and the Center for the Study of
Public Choice, George Mason University.
Michael B. Mukasey served as Attorney General of
the United States (2007-2009); Judge of the United
States District Court for the Southern District of New
York (1988-2006, Chief Judge, 2000-2006); and Assis-
tant United States Attorney for the Southern District
of New York (1972-1976). Among his many honors is
the Federal Bar Council’s Learned Hand Medal for Ex-
cellence in Federal Jurisprudence (2004).
John Michael (“Mick”) Mulvaney served as di-
rector of the OMB (2017-2020). He also served as act-
ing director of the Consumer Financial Protection Bu-
reau (2017-2018), White House Chief of Staff (2019-
2020), and U.S. Special Envoy for Northern Ireland
(2020-2021). Prior to his service in the executive
branch, Mr. Mulvaney represented South Carolina’s
Fifth District in the U.S. House of Representatives
 4
(2011-2017) and served on the Budget and Joint Eco-
nomic Committees.
John B. Taylor is the George P. Shultz Senior Fel-
low in Economics at the Hoover Institution and the
Mary and Robert Raymond Professor of Economics at
Stanford University. He chairs the Economic Policy
Working Group, co-chairs the Technology, Economics
and Governance Working Group, and is director of
Stanford’s Introductory Economics Center. He served
as Senior Economist and later Member of the Council
of Economic Advisers and Undersecretary of the
Treasury. He received the Hoagland Prize and the
Rhodes Prize for excellence in undergraduate teach-
ing. He is a fellow of the American Academy of Arts
and Sciences and the Econometric Society and served
as Vice President of the American Economic Associa-
tion and President of the Mont Pelerin Society.
Peter J. Wallison is a senior fellow emeritus at the
American Enterprise Institute, where he studies con-
stitutional law and the growth of the administrative
state. Mr. Wallison previously served as White House
Counsel and General Counsel of the Department of the
Treasury under President Ronald Reagan. His most
recent book, Judicial Fortitude: The Last Chance to
Rein in the Administrative State (2018), argues that
the judiciary must curb the growth of the administra-
tive state by enforcing constitutional separation of
powers.

SUMMARY OF ARGUMENT
The power of the purse is the central and most im-
portant constitutional power reserved exclusively to
the legislative branch, enabling it to oversee and con-
trol virtually every activity of the federal government.
So important is congressional control over spending
that the Framers made the point in two different
 5
provisions of the Constitution—the only “double pro-
tected” power in the document. Article I, Section 8,
Clause 1 gives Congress (not the President) the power
to use tax revenues for “the common Defence and gen-
eral Welfare of the United States,” and Article I, Sec-
tion 9, Clause 7 provides that “No Money shall be
drawn from the Treasury, but in Consequence of Ap-
propriations made by Law.” But these safeguards are
for naught if the executive branch can spend money
contrary to the manifest intentions of Congress based
on improvised, out-of-context interpretations of spend-
ing statutes.
In recent decades, Presidents of both parties have in-
creasingly resorted to loose constructions of congres-
sional appropriations laws to justify spending without
congressional action—even when Congress has explic-
itly rejected the very spending in question. This has
gotten to the point that the fundamental principle of
the congressional power of the purse is in peril.
This case involves a unilateral decision by the Pres-
ident to forgive over $400 billion in student loan debt
owed by 43 million borrowers who financed a college
education with the benefit of taxpayer-funded loans.
This represents one of the largest expenditures in the
nation’s history, carried out in the face of clear con-
gressional opposition and supported by no accepted
principles of statutory interpretation—let alone the
“specific[] statement” that is necessary before the ex-
ecutive branch can spend Treasury funds. 31 U.S.C.
§ 1301(d).
That the expenditure here is in the form of waiving
payments owed to the Treasury, instead of affirma-
tively expending funds, is of no legal significance. Con-
gress has made clear that “modify[ing] outstanding di-
rect loans (or direct loan obligations) or loan guaran-
tees (or loan guarantee commitments) shall constitute
 6
new budget authority.” 2 U.S.C. § 661c(d)(1). For that
reason, the CBO scored the “cost of debt cancellation
[as] the present value of the borrowers’ projected re-
payments of student debt before accounting for the
cancellation minus the present value of repayments af-
ter doing so.” CBO, Costs of Suspending Student Loan
Payments and Cancelling Debt 2 (Sept. 26, 2022). The
CBO further notes that “the costs of payment suspen-
sion and of debt cancellation will be recorded by the
Office of Management and Budget in the federal
budget as an increase in the deficit during the fiscal
year in which the terms of the loans are modified.”
CBO, supra, at 2. Forgiving a loan and making a gift
or grant are functionally, legally, and economically in-
distinguishable—and both come under Congress’s ex-
clusive spending power.
This case gives the Court an opportunity to uphold
the structural disciplines on executive power. If the
Court reaches the merits,2 it should make clear that
spending statutes must be interpreted in accordance
with Congress’s instructions. If this Court turns a
blind eye, the executive will have virtually unlimited
power to spend. That might befit the Stuart King
Charles I, but not a President of the United States.

ARGUMENT
I. The Framers Designed the Power of the
Purse as a Check on Tyranny
Drawing from a tumultuous and ultimately bloody
chapter of British history, the Framers assigned the
“power of the purse”—the power to raise revenue and
direct its spending—solely to the legislative branch. In
doing so, they armed Congress with “the most com-
plete and effectual weapon with which any

2 Amici take no position on the standing question.

 7
constitution can arm the immediate representatives of
the people, for obtaining a redress of every grievance,
and for carrying into effect every just and salutary
measure.” The Federalist No. 58 (James Madison).
In the first clause of Article I, Section 8, the Consti-
tution’s list of congressional powers, the authority to
use tax revenues for “the common Defence and general
Welfare” is given to Congress, not to the President.
Making doubly sure that this allocation of power could
not be mistaken, the Framers added Section 9, Clause
7, which states emphatically that “No Money shall be
drawn from the Treasury, but in Consequence of Ap-
propriations made by Law”—no matter what the
sources of funds might be. In other words: Congress
alone may appropriate funds, and the President may
not spend without specific statutory authorization.
That structural design is “the foundation stone of all
separation-of-powers law.” Michael W. McConnell, The
President Who Would Not Be King: Executive Power
under the Constitution 100 (2020). By giving Con-
gress—not the executive—that “most far-reaching and
effectual of all governmental powers,” the Framers en-
sured that the people’s representatives “would act as
the first branch of government.” Abner J. Mikva, Con-
gress: The Purse, the Purpose, and the Power, 21 Ga. L.
Rev. 1, 1 (1986). It follows that the courts should “nar-
rowly construe[]” grants of spending authority, as a
means of “reinforcing Congress’s constitutional power
of the purse.” Gillian E. Metzger, Taking Appropria-
tions Seriously, 121 Colum. L. Rev. 1075, 1161 (2021).
A. The Common Law Evolution of the
Power of the Purse
Until the seventeenth century, Parliament lacked
the power of the purse. While the Crown needed Par-
liament’s consent to levy taxes, the “ordinary expenses
 8
of state” were long met with revenue from Crown
lands, feudal payments, customs duties, personal
loans, and the like. McConnell, supra, at 101; see also
1 William Blackstone, Commentaries on the Laws of
England *272-96 (1765) (describing eighteen sources
of “ordinary revenue”); Douglass North & Barry
Weingast, Constitutions and Commitment: The Evolu-
tion of Institutions Governing Public Choice in Seven-
teenth-Century England, 49 J. Econ. Hist. 803 (1989)
(describing fiscal change after the Glorious Revolu-
tion). That revenue was “in a very true sense the king’s
revenue, and parliament had but seldom attempted to
give him orders as to what he should do with it.” F.W.
Maitland, The Constitutional History of England 309
(H.A.L. Fisher ed., 1908). “Only in the event of extraor-
dinary expenditures—usually for a war—did the
Crown need to go hat in hand” to Parliament seeking
an appropriation. McConnell, supra, at 101. As a re-
sult, “kings could sometimes go for years and even dec-
ades without the botheration of a legislative branch.”
Id.
1. The most consequential example of this took
place under Charles I, who “began his reign with a se-
ries of expensive and unnecessary foreign policy ad-
ventures, each of which ended poorly.” Josh Chafetz,
Congress’s Constitution: Legislative Authority and the
Separation of Powers 47 (2017). Those defeats left the
Crown in “desperate need of new funds,” but Parlia-
ment demanded concessions in return. See Josh
Chafetz, Executive Branch Contempt of Congress, 76
U. Chi. L. Rev. 1083, 1102 (2009). Unwilling to budge,
Charles instead dissolved Parliament in 1629 and gov-
erned without it until 1640—a period that historians
call “Personal Rule” or the “Eleven Years’ Tyranny.”
But that freedom came at a cost to the King. No Par-
liament meant no new tax revenue, and by the Stuart
 9
Era “the king’s ordinary revenues were no longer even
remotely sufficient to cover the normal costs of royal
governance.” Chafetz, Congress’s Constitution, supra,
at 47. So Charles and his ministers set out to raise
money, beginning where monarchs usually did: in-
creasing rents and selling Crown lands. Pauline
Gregg, King Charles I, at 227-28 (1984). And when
those ordinary coffers ran bare, Charles got more cre-
ative, redrawing the borders of royal forests and fining
those who now found themselves trespassers. Id. at
225.
Even more inventive was Charles’s invocation and
manipulative reinterpretation of ancient statutes. The
most notorious was his resuscitation of the 1307 Statu-
tum de Militibus, putting the statute to a use utterly
unrelated to its original purpose of compelling military
service by the king’s knights, and converting it to a
means of collecting revenue without going to Parlia-
ment. See 2 William Blackstone, Commentaries, su-
pra, at *69; H.H. Leonard, Distraint of Knighthood:
The Last Phase, 1625-41, 63 History 23, 23 (1978);
Gregg, supra, at 228. Within five years, the Crown had
extorted more than £170,000 through knighthood
fines—the “largest single source of extraordinary rev-
enue apart from the sale of crown lands.” Leonard, su-
pra, at 35. With this money in hand, Charles was able
to avoid calling a Parliament for a decade.
That infuriated Parliament. When Charles finally
reconvened Parliament, lawmakers denounced the
king for raising funds “upon pretext of an ancient cus-
tom.” F.M. Nichols, On Feudal and Obligatory Knight-
hood, 39 Archaeologia 189, 243 (1863). In the end, the
stratagem proved a “staging post” on the road to war
and Charles’s beheading in 1649. Leonard, supra, at
36; see also B.W. Quintrell, Oliver Cromwell and
 10
Distraint of Knighthood, 57 Bull. of the Inst. of Hist.
Rsch. 224, 230 (1984).
2. After the Civil War and the Glorious Revolu-
tion, Parliament gradually wrested the power of the
purse from the Crown.
That shift began with revenue. To “ensure that mon-
archs would no longer feel free to rule without Parlia-
ment,” lawmakers “took away almost all of the rem-
nants of the Crown’s ordinary revenue,” leaving Wil-
liam and Mary dependent on “annual appropriations.”
Chafetz, Congress’s Constitution, supra, at 51. Then,
the 1689 Bill of Rights outlawed “levying Money for
and to the Use of the Crowne … for other time and in
other manner than the same was granted by Par-
lyament.” 1 W. & M., sess. 2, c. 2, § 1, cl. 4; id. § 2, cl. 4
(1689). Finally, in 1702, Parliament “prohibited the
Crown from alienating crown property” beyond the
monarch’s lifetime—“end[ing] the practice of borrow-
ing on royal credit.” McConnell, supra, at 102. As a re-
sult, the king “had to come, cap in hand, to the House
of Commons,” which “more often than not … drove a
hard bargain.” G.M. Trevelyan, The English Revolu-
tion, 1688-1689, at 96 (1965).
From there, it was “but a small step” to Parliamen-
tary control over spending. Id. 100. After the Glorious
Revolution, “it became common practice … for Parlia-
ment to specifically appropriate the funds that it
raised for the Crown.” Chafetz, Congress’s Constitu-
tion, supra, at 51. And with the new system came new
oversight: a budget, audits, and “severe punishments”
for royal officials who disregarded Parliament’s appro-
priation. Id. at 51-52. By 1782, when “the king lost his
prerogative to determine how the [domestic budget]
would be spent,” the purse strings were fully in Parlia-
ment’s grasp. McConnell, supra, at 102. “From that
 11
point forward, the Crown could not spend without ap-
propriation by Parliament.” Id.
B. Congress’s Exclusive Power of the Purse
With this history fresh in mind, the Framers “en-
trenched each of these settlements in the Constitu-
tion.” McConnell, supra, at 102. Evoking the English
Bill of Rights and the restrictions on alienating Crown
property, the first two clauses of Article I, Section 8
give Congress alone the power to tax and borrow. And
mirroring Parliament’s control of spending, the Appro-
priations Clause provides that “[n]o money shall be
drawn from the Treasury, but in Consequence of Ap-
propriations made by Law.” U.S. Const. art. I, § 9, cl.
7. Together, these clauses give Congress control of not
only “how much revenue to raise and how, but what to
spend it on, and under what conditions.” McConnell,
supra, at 103.
That structural choice is “the foundation stone of all
separation-of-powers law.” McConnell, supra, at 100.
As experience under Charles I had shown, the execu-
tive who could raise money by himself could also gov-
ern by himself. And the executive with “unbounded
power” to spend could “apply all its monied resources
at his pleasure.” 3 Joseph Story, Commentaries on the
Constitution of the United States § 1342 (1833); see
The Federalist No. 30 (Alexander Hamilton) (calling
money the “vital principle of the body politic”). And the
flip side was also true, as Madison observed in Feder-
alist 58. With the “powerful instrument” of the purse,
Parliament had “gradually enlarg[ed] the sphere of its
activity and importance,” allowing it to “obtain[] a re-
dress of every grievance” and “carry[] into effect every
just and salutary measure.” The Federalist No. 58
(James Madison). In short: the power to set national
policy comes with the power of the purse. See
McConnell, supra, at 100-01.
 12
These “structural details” are “not simply matters of
etiquette or architecture.” Sissel v. U.S. Dep’t of Health
& Hum. Servs., 799 F.3d 1035, 1052 (D.C. Cir. 2015)
(Kavanaugh, J., dissenting from denial of reh’g en
banc). Instead, their “ultimate purpose” is “to protect
the liberty and security of the governed.” Metro. Wash.
Airports Auth. v. Citizens for the Abatement of Aircraft
Noise, Inc., 501 U.S. 252, 272 (1991). To that end, the
Constitution guarantees that “the legislative depart-
ment alone has access to the pockets of the people.”
The Federalist No. 48 (James Madison).
To the Framers, the power of the purse was a “bul-
wark” against tyranny. U.S. Dep’t of Navy v. FLRA,
665 F.3d 1339, 1347 (D.C. Cir. 2012) (Kavanaugh, J.);
see Montesquieu, The Spirit of the Laws bk. XI, ch. VI
(1748) (“Were the executive power to determine the
raising of public money … liberty would be at an
end.”). In fact, the “separation of purse and sword” be-
came “the Federalists’ strongest rejoinder to Anti-Fed-
eralist fears of a tyrannical president.” Chafetz, Con-
gress’s Constitution, supra, at 57; see Alexis de Tocque-
ville, Democracy in America 114 (Harvey Mansfield &
Delba Winthrop eds. & trans., 2002) (“[T]he struggle
between the president and the legislature can only be
unequal, since the latter, if it perseveres in its designs,
can always master the resistance opposed to it ….”). So
when Patrick Henry warned that a President of “am-
bition, and abilities” could “easily become king,” Mad-
ison responded that the “purse is in the hands of the
representatives of the people” who “have the appropri-
ation of all moneys.” 3 The Debates in the Several State
Conventions on the Adoption of the Federal Constitu-
tion 58-59, 393 (Jonathan Elliot 2d ed., 1891).
In short, the founding generation saw Congress’s
power of the purse as a “salutary check, not only upon
the extravagance, and profusion, in which the
 13
executive department might otherwise indulge it-
self … but also against any misappropriation, which a
rapacious, ambitious, or otherwise unfaithful execu-
tive might be disposed to make.” St. George Tucker,
View of the Constitution of the United States 298 (1803)
(Clyde N. Wilson ed. 1999); see Story, supra, § 1342
(“[The] power to control, and direct appropriations,
constitutes a most useful and salutary check … upon
corrupt influence and public peculation.”).
II. Executive Encroachment on the Power of
the Purse Threatens Constitutional Order
A. Presidents Have Repeatedly Usurped
Congress’s Spending Authority
While the President does not have the ability to liq-
uidate Crown lands or fine absent knights, the Ameri-
can Executive has shown no less creativity in pressing
the limits of its spending authority than did its monar-
chical forbears.
1. Presidents and Congresses have been tussling
over the scope of appropriations and the timing of ex-
penditures since the beginning of the Republic. E.g.,
Louis Fisher, Presidential Spending Discretion and
Congressional Controls, 37 Law & Contemp. Probs.
135 (1972). President Jefferson famously agreed to
purchase the Louisiana Territory from France for $15
million even though Congress had appropriated only
$2 million for the purchase of New Orleans and the
Floridas. Fisher, supra, at 165 & n.149. But Jefferson
did not attempt to make the expenditure until after
Congress appropriated the rest of the money, a few
weeks after it ratified the treaty. Id.
On the other side of the coin, Presidents have re-
fused to expend funds that Congress directed to be
spent. This practice of impoundment traces back to
1803, when President Jefferson reported to Congress
 14
that “[t]he sum of $50K appropriated by Congress for
providing gun boats remains unexpended” due to his
determination that intervening developments “ren-
dered an immediate execution of that law unneces-
sary.” Thomas Jefferson, Third Annual Message (Oct.
17, 1803). Jefferson’s approach to impoundment,
which would prevail through at least the presidency of
Franklin Delano Roosevelt, was characterized by “an
attitude of economy and efficiency” with the salutary
goal of “not spending on a program no longer needed.”
Gerald A. Figurski, Presidential Impoundment of
Funds: A Constitutional Crisis, 7 Akron L. Rev. 107,
108-09 (1973).3
This practice became controversial in 1973 when
President Nixon “changed the unwritten rules of the
impoundment battle.” Wm. Bradford Middlekauff,
Twisting the President’s Arm: The Impoundment Con-
trol Act as a Tool for Enforcing the Principle of Appro-
priation Expenditure, 100 Yale L.J. 209, 212 (1990).
During a press conference, President Nixon declared
he “w[ould] not spend money if the Congress over-
spends” or implement “programs that will raise the
taxes and put a bigger burden on the already overbur-
dened American taxpayer. See Richard Nixon, The
President’s News Conference (Jan. 31, 1973). Following
through on this promise, President Nixon “slashed bil-
lions of dollars in domestic areas such as federal hous-
ing, highway safety, and environmental protection.”
Bale, supra, at 618; see OMB, Report Under Federal
Impoundment and Information Act, 38 Fed. Reg.
19,582, 19,584 (July 13, 1973) (reporting the President

3 Not every use of impoundment during this period was as pub-

lic minded. See, e.g., Christian I. Bale, Checking the Purse: The
President’s Limited Impoundment Power, 70 Duke L.J. 607, 616
(2020) (“President Buchanan impounded funds appropriated for
Illinois post offices to punish the representatives of the state.”).
 15
was impounding $7.7 billion appropriated to more
than twenty different agencies and components).
Over 160 district courts held various acts of im-
poundment illegal, and this Court did the same in
Train v. City of New York, 420 U.S. 35 (1975), where
President Nixon had partially impounded funds spe-
cifically appropriated over his veto. These cases were
decided on grounds of statutory construction, but had
a clear constitutional dimension—as does the execu-
tive action at issue in this case and the antecedent ac-
tions discussed below.
2. In recent years, Presidents of both political par-
ties have employed far-fetched interpretations of stat-
utory texts to spend money on controversial projects
that Congress had never authorized—and, in many in-
stances, had specifically rejected. President Biden’s
student loan forgiveness program is the latest and
most dramatic instance of what is, in practical effect,
a claim to unilateral executive spending power.
One of the first modern instances of this phenome-
non was a President standing up an entire new federal
agency and only later seeking Congress’s assent. In
1961, less than two months after taking office, Presi-
dent Kennedy established the Peace Corps by Execu-
tive Order. Exec. Order No. 10,924, 26 Fed. Reg. 1789
(Mar. 1, 1961). Congress, though, had never passed
any legislation on the subject, and would not appropri-
ate funds to support the Peace Corps for seven more
months. See Act of Sept. 30, 1961, Pub. L. No. 87-329,
tit. V, 75 Stat 717, 721. To fund the agency in the in-
terim, President Kennedy diverted more than $1 mil-
lion in contingency funds allocated under the Mutual
Security Act. Fisher, supra, at 138.
More recent Presidents have read into congressional
enactments the power to implement policies that,
 16
unlike the Peace Corps, were clearly going nowhere at
the opposite end of Pennsylvania Avenue. To take just
the three most recent former Presidents as examples:
President Bush, in the waning months of his presi-
dency, urged Congress to pass a $14 billion bailout
package for American automakers. When that legisla-
tion failed, President Bush candidly determined “the
only way to avoid a collapse of the U.S. auto industry
is for the executive branch to step in.” Remarks on the
American Auto Industry, 44 Weekly Comp. Pres. Doc.
1568, 1569 (Dec. 19, 2008). He thus “announc[ed] that
the Federal Government will grant loans to auto com-
panies under conditions similar to those Congress con-
sidered.” Id. To fund this bank-shot bailout, the ad-
ministration used dollars Congress had appropriated
to prop up “financial institution[s]” through the Trou-
bled Asset Relief Program (“TARP”). 12 U.S.C. § 5211.
TARP, though, limited eligible “financial institutions”
to “any institution, including, but not limited to, any
bank, savings association, credit union, security bro-
ker or dealer, or insurance company.” 12 U.S.C.
§ 5202(5).
To evade this stricture, the Administration inter-
preted the term “financial institution” to include “hold-
ing companies engaged in the manufacturing of auto-
motive vehicles and the provision of credit and financ-
ing in connection with the manufacturing and pur-
chase of such vehicles” because “they are ‘institu-
tion[s].’” Henry M. Paulson, Jr., Determination, Dep’t
of the Treasury (Dec. 19, 2008). In other words, the ad-
ministration determined car manufacturers were “fi-
nancial institutions” for purposes of TARP because the
term was “not limited” to the listed types of institu-
tions (and, of course, the manufacture and sale of cars
does involve financing—as does virtually every other
large sector of the economy).
 17
President Obama followed a similar playbook after
Congress specifically refused to appropriate funding
for a provision of the Affordable Care Act authorizing
reimbursement of certain costs to health insurers par-
ticipating in the Affordable Care Act exchanges. See
42 U.S.C. § 18071.4 Despite the lack of any appropria-
tion, and notwithstanding Congress’s vote against
such an appropriation, Treasury began to make ad-
vance section 1402 payments to insurers. United
States House of Representatives v. Burwell, 185 F.
Supp. 3d 165, 174 (D.D.C. 2016), vacated in part sub
nom. United States House of Representatives v. Azar,
2018 WL 8576647 (D.D.C. May 18, 2018).
Contradicting its initial request of section 1402
funds, the administration claimed that it was permit-
ted to make these payments under the permanent ap-
propriation in 31 U.S.C. § 1324. Yet that permanent
appropriation was limited to “refunding internal reve-
nue collections,” such as the section 1401 individual
tax credit for insurance premiums. Id. § 1324(a). The
House successfully sued to halt the unauthorized
spending, with the district court holding the expendi-
ture unlawful and unconstitutional. House of Repre-
sentatives, 185 F. Supp. at 174-79 (“A law may be con-
strued to make an appropriation out of the Treasury …
only if the law specifically states that an appropriation
is made ….”). By that time, some $7 billion of unappro-
priated money had been taken from the Treasury,
never to be returned.

4 President Obama took this action after Congress rejected a

number of his administration’s proposals, in response to which

the President pledged to use his “pen” and “[]phone” to “take ex-
ecutive actions where Congress won’t.” Barack Obama, Remarks
by the President and First Lady at the College Opportunity Sum-
mit (Jan. 16, 2014).
 18
President Trump also determined to spend money
that Congress had not appropriated. In July and Au-
gust 2020, Congress debated whether to extend the en-
hanced unemployment benefits provided by the
CARES Act. Unable to agree on an amount—Demo-
crats wanted a $600 enhancement; Republicans pro-
posed $200—Congress deadlocked. See Jake Sherman
& John Bresnahan, White House Eyes Executive Or-
ders to Upend Virus Negotiations, Politico (Aug. 4,
2020). Yet the administration went ahead with a $400
enhancement by diverting funds appropriated to the
Federal Emergency Management Administration’s
Disaster Relief Fund into a new Assistance Program
for Lost Wages. See Donald J. Trump, Memorandum
on Authorizing the Other Needs Assistance Program
for Major Disaster Declarations Related to Corona-
virus Disease 2019 (Aug. 8, 2020).
The administration justified this spending under the
Stafford Act, which authorizes federal Disaster Relief
Fund assistance “to meet disaster-related medical,
dental, child care, and funeral expenses” or “to address
personal property, transportation, and other neces-
sary expenses or serious needs resulting from the ma-
jor disaster.” 42 U.S.C. § 5174(e). But the Act does not
authorize federal assistance to cover lost income. And
while a separate provision does authorize the Presi-
dent to provide unemployment assistance, it restricts
such assistance to weeks where the individual is not
entitled to any other form of employment compensa-
tion. See id. § 5177. Like his predecessors, President
Trump here “attempt[ed] to legislate through execu-
tive fiat.” Erwin Chemerinsky, Trump Just Made An-
other Huge and Illegal Power Grab. Be Very Alarmed.
L.A. Times (Aug. 10, 2020).
 19
B. Spending Statutes Must Be Strictly
Construed to Safeguard Separation of
Powers
As the foregoing examples demonstrate, willfully
loose interpretations of spending statutes are threat-
ening to become standard practice, radically under-
mining Congress’s power of the purse. Regardless of
party, policy, or purpose, modern Presidents have
sought to circumvent Congress’s appropriations power
by hanging plainly unauthorized executive policies on
the slenderest of statutory reeds—and future presi-
dents will continue to do so absent clear guidance from
this Court.
This is plainly not the manner in which our consti-
tutional order is designed to function. The Constitu-
tion vests the President with “[t]he executive Power,”
U.S. Const. art. II, § 1, but the executive power does
not comprise the power to direct spending. The Presi-
dent can request and propose, he can bargain and ca-
jole, he can even demand and threaten, but he may not
spend absent congressional authorization. See Kate
Stith, Congress’ Power of the Purse, 97 Yale L.J. 1343,
1351 (1988). Yet recent standoffs between Congress
and the President have increasingly ended not with
the President acknowledging his constitutional limits,
but rather with the President circumventing the Ap-
propriations Clause under the guise of statutory inter-
pretation.
This Court has never countenanced presidential cre-
ativity in implementing spending laws of the sort wit-
nessed in recent years. As this Court has made clear,
“the best way of determining whether Congress in-
tended” to empower the President to spend the public
fisc “is to examine the nature and scope of the author-
ity granted by Congress.” La. Pub. Serv. Comm’n v.
FCC, 476 U.S. 355, 374 (1986). If Congress did not
 20
intend to authorize an appropriation, the executive
“may not bootstrap itself into an area in which it has
no jurisdiction by repeatedly violating its statutory
mandate.” Fed. Maritim Comm’n v. Seatrain Lines,
Inc., 411 U.S. 726, 745 (1973). Allowing the executive
to “expand its power in the face of congressional limi-
tation … would be to grant to the [President] power to
override Congress.” La. Pub. Serv. Comm’n, 476 U.S.
at 374-75. So long as the “the controversy involves tax-
ing, spending, borrowing, impositions on liberty or
property, going to war, suspension of habeas corpus, or
any other delegated powers, congressional authoriza-
tion is a necessary precondition.” McConnell, supra, at
281. And such authorization, to protect against usur-
pations of authority, must be construed narrowly.
This Court has adopted clear statement rules in
other contexts to shore up important structural princi-
ples of constitutional law. See, e.g., Gregory v. Ash-
croft, 501 U.S. 452, 459-60 (1991) (federalism canon);
Dellmuth v. Muth, 491 U.S. 223, 228 (1989) (state sov-
ereign immunity); Johnson v. United States, 529 U.S.
694, 701 (2000) (nonretroactivity); Morrison v. Nat’l
Australian Bank Ltd., 561 U.S. 247, 255 (2010) (extra-
territoriality). The Court should similarly “narrowly
construe” grants of spending authority, as a means of
“reinforcing Congress’s constitutional power of the
purse.” Metzger, supra, at 1161. Indeed, in this context
no inference is necessary because Congress itself has
enacted a clear-statement rule: “A law may be con-
strued to make an appropriation out of the Treasury …
only if the law specifically states that an appropriation
is made ….” 31 U.S.C. § 1301(d) (emphasis added).
And that makes sense. The appropriations context
demands stricter interpretive rules precisely because
looser rules govern the interpretation of delegated reg-
ulatory authority. Put another way, the purse strings
 21
are frequently Congress’s last line of defense against
executive overreach. Every year, Congress intervenes
in agency rulemaking by using appropriations riders
that prohibit action on certain subjects, mandate con-
sideration of particular proposals, or set conditions for
action. See generally Curtis W. Copeland, Cong. Rsch.
Serv., RL34354, Congressional Influence on Rulemak-
ing and Regulation Through Appropriations Re-
strictions (updated Aug. 5, 2008). The mere threat of
funding cuts allows Congress to shape regulators’ de-
cisions. In fact, it stands to reason that Congress has
delegated broad regulatory powers only because it ex-
pected it could always use its funding powers to direct
and restrain regulators. See Neal E. Devins, Regula-
tion of Government Agencies Through Limitation Rid-
ers, 1987 Duke L.J. 456, 462-63, 472-73 (tracing use of
riders to the beginning of the modern administrative
state). If the President could use far-fetched interpre-
tations to circumvent Congress’s power of the purse,
that last line of defense would be breached.
Further, and apart from violating separation of pow-
ers, what the President has done here deprives the
government of revenue Congress had assumed would
be collected, adding more than $400 billion to the def-
icit for FY 2023. It would be no different if the presi-
dent, claiming that the economy needed a boost or that
the tax code needed to be more competitive globally,
directed the IRS not to collect the full amount of
taxes—either from all Americans or from some favored
constituency. See, e.g., Jim Tankersley, Trump Won’t
Order a Capital Gains Tax Cut, for Now, N.Y. Times
(Sept. 11, 2019). This would nullify or compromise a
law Congress had passed. If the President’s action in
this case is approved by this Court, it will create a
precedent with no conceivable boundaries.
 22
III. Congress Did Not Authorize the Student
Loan Forgiveness Program
A. President Biden’s student loan forgiveness pro-
gram is one of the largest single expenditures in Amer-
ican history. The program would unilaterally forgive
nearly a half trillion dollars on loans held by 43 million
borrowers. If passed through Congress, the program
would represent an epochal change in the nation’s do-
mestic spending programs.
But it was not passed through Congress, though not
for lack of effort. The President ran on a platform of
forgiving a significant amount of federal debt, see, e.g.,
Joe Biden, Joe Biden Outlines New Steps to Ease Eco-
nomic Burden on Working People, Medium (Apr. 9,
2020), and in the 117th Congress alone, members of
the House and Senate introduced over eighty bills on
the topic of student loan repayment and forgiveness.
See Nat’l Ass’n of Student Fin. Aid Adm’rs, Legislative
Tracker: Loan & Repayments (Jan. 5, 2023). This in-
cluded various proposals to forgive student debt for all
borrowers. See, e.g., H.R. 6708, 117th Cong. (2022) (re-
quiring the discharge of $25,000 in debt per borrower);
H.R. 4797, 117th Cong. (2022) ($50,000). But the only
one of these proposals enacted was an uncontroversial
bill permitting two borrowers who had previously con-
solidated their loans to sever the consolidation. Pub. L.
No. 117-200, 136 Stat. 2219 (2022).
In the midst this campaign and legislative activity,
few seriously thought the President could forgive stu-
dent debt with the stroke of a pen. Then-House
Speaker Nancy Pelosi, for example, Shermanesquely
declared in July 2021:
People think that the President of the United
States has the power for debt forgiveness. He
 23
does not. He can postpone, he can delay, but
he does not have that power.
Adam S. Minsky, Pelosi: President Biden Does Not
Have Power To Cancel Student Loan Debt—What It
Means For Borrowers, Forbes (July 28, 2021). It was
not until it became clear that legislative support was
lacking—and that even many supporters preferred not
to take a vote on such a controversial measure—that
the President discovered the authority to go it alone.
Even those who supported unilateral debt relief at
this time did not find support for this position in the
HEROES Act. Instead, advocates relied on a provision
of the Higher Education Act authorizing the Secretary
of Education to “compromise, waive, or release any
right, title, claim, lien, or demand.” 20 U.S.C.
§ 1082(a)(6); see Sen. Elizabeth Warren, Press Release,
Warren, Schumer, Pressley, Colleagues: President
Biden Can and Should Use Executive Action to Cancel
up to $50,000 in Federal Student Loan Debt Immedi-
ately (Feb. 4, 2021). The much-discussed flaws in that
theory need not be described here, because the Admin-
istration abandoned it without putting it into effect.
Eventually, the Administration hit upon a theory
that almost no one had predicted: use of the HEROES
Act, a 2003 statute passed in the wake of 9/11 “to sup-
port the members of the United States military and
provide assistance with their transition into and out of
active duty and active service,” 20 U.S.C.
§ 1098aa(b)(6). The Act authorizes the Secretary of Ed-
ucation to “waive or modify any statutory or regulatory
provision applicable to the student financial assistance
programs … as the Secretary deems necessary in con-
nection with a war or other military operation or na-
tional emergency.” Id. § 1098bb(a)(1). Relief under the
Act is limited to “affected individual[s],” defined as a
member of the armed forces or National Guard, a
 24
person who resides in a disaster area, or a person who
“suffered direct economic hardship as a direct result of
a war or other military operation or national emer-
gency.” Id. § 1098ee(2).
The Administration reasoned that the COVID-19
pandemic is an “emergency” within the meaning of the
HEROES Act, 87 Fed. Reg. 61,512, 61,512-13 (Oct. 12,
2022) (citing 20 U.S.C. § 1098bb(a)), and that former
students with unpaid student loans are “affected indi-
viduals,” on account of suffering “direct economic hard-
ship” as a “direct result” of the COVID emergency. See
The Biden-Harris Administration’s Student Debt Re-
lief Plan Explained, Federal Student Aid (last visited
Jan. 20, 2023).
B. There are multiple reasons why ordinary prin-
ciples of interpretation of spending laws do not support
the Administration’s interpretation.
At the outset, it is not even clear that the COVID-19
emergency is the type of “emergency” contemplated by
the HEROES Act. In construing the term “national
emergency,” the canon of ejusdem generis counsels
that the general term “national emergency” should be
construed in light of the specific terms that precede
it—namely, war, military operation, or disaster, all of
which place a disproportionate burden on a subset of
individuals. 20 U.S.C. § 1098ee(2); see Harrison v.
PPG Indus., Inc., 446 U.S. 578, 588 (1980). The mere
fact the statute includes the term “national emer-
gency” does not necessarily mean that emergencies
fundamentally different in kind than those specifically
listed are covered—no one, for example, argues that
emergencies declared to impose trade sanctions would
justify forgiving the student loans of tens of millions of
Americans.
 25
But even accepting that COVID-19 is an emergency
for purposes of the HEROES Act, it now remains an
“emergency” in name only—and soon, not even that. In
a televised interview less than a month after imple-
menting the program, President Biden declared the
pandemic “over.” Scott Pelley, President Joe Biden:
The 2022 60 Minutes Interview (Sept. 18, 2022). A few
months later, the Administration determined that
COVID-19 was no longer an emergency sufficient to
support restrictions on illegal migration. See Arizona
v. Mayorkas, 143 S. Ct. 478 (2022). This on-again-off-
again logic is untenable. The pandemic either is a con-
tinuing national emergency or it is not. And just this
week, the White House confirmed that it is not, an-
nouncing it would end the public health emergency ef-
fective May 11, 2023. See Sharon LaFraniere & Noah
Weiland, U.S. Plans to End Public Health Emergency
for Covid in May, N.Y. Times (Jan. 30, 2023).
It is also hard to see how 43 million student borrow-
ers can be described as “affected individuals” under
the terms of the HEROES Act. Congress defined the
term as including members of the armed forces or Na-
tional Guard, persons who reside in a disaster area, or
persons who “suffered direct economic hardship as a
direct result of a war or other military operation or na-
tional emergency.” 20 U.S.C. § 1098ee(2). The benefi-
ciaries of the program outnumber the entire popula-
tion of the nation’s armed forces by more than 30:1.
See Council on Foreign Relations, Demographics of the
U.S. Military (updated July 13, 2020).5
Again, the principle of ejusdem generis suggests the
catch-all language about those suffering economic

5 Indeed, due to tuition-free service academies and the G.I. Bill,

military members and veterans are perhaps the class least likely
to benefit from the program.
 26
hardship as a result of a national emergency should be
limited to those similar to the fighting forces called to
service in the wake of 9/11, who faced, in addition to
everything else, the prospect of no longer being in a
position to repay loans while away from their ordinary
employment. Same for those who lose their home or
place of business in a natural disaster. The focus of the
HEROES Act was to provide relief to individuals im-
pacted by the sacrifices that military service requires,
such as abrupt, unexpected deployments. See, e.g., 149
Cong. Reg. H2522, H2526 (daily ed. Apr. 1, 2003) (ref-
erencing numerous times the goal of benefiting ser-
vicemembers). Congress was concerned that people
called unexpectedly to military service would be taken
away from their ordinary jobs and might be unable to
pay their student loans. The emergency thus was “di-
rectly” responsible for their anticipated inability to pay
their student loans.
But it is not necessary to fall back on canons of in-
terpretation. The language used by Congress is clear.
Only persons suffering “direct” economic hardship as a
“direct result of war or other military operation or na-
tional emergency” qualify for the extraordinary relief
provided by the statute. There is no evidence in the
administrative record that all, or even most, of the 43
million former students whose loans were forgiven suf-
fered any “direct” economic hardship as a “direct” re-
sult of the COVID pandemic.
Moreover, the purpose of the Secretary’s waiver au-
thority under the HEROES Act was not to confer a
benefit on a class of individuals, but rather to ensure
only that “affected individuals” were not placed “in a
worse position financially in relation to that financial
assistance because of their status as affected individu-
als.” 20 U.S.C. § 1098bb(a)(2)(A). That was true of mil-
itary personnel whose deployment took them away
 27
from their jobs and disaster victims forced from their
homes. That is not true of student borrowers, whose
loan forgiveness makes them significantly better off.
Most of the beneficiaries of the program have a col-
lege degree, and virtually all have at least some college
education. The majority of college-educated individu-
als are in the same (or better) position than they were
prior to the pandemic. See Monthly Labor Review,
Covid-19, Educational Attainment, and the Impact on
American Workers, U.S. Bureau of Labor Statistics
(Sept. 2020) (explaining that unemployment rate rose
the least for those with a college education during pan-
demic); Career Outlook, Education Pays, 2020, U.S.
Bureau of Labor Statistics (June 2021) (explaining
that college educated workers suffered less unemploy-
ment compared to others during COVID-19 pandemic).
Further, these borrowers have already received 34
months (and counting) of student loan forbearance, an
accommodation that presumably offset any harm
those borrowers experienced during the height of
COVID-19. So even if the HEROES Act did authorize
such a sweeping interpretation, the program would vi-
olate the statute simply because the Department of
Education failed to make the necessary causal show-
ing under section 1098bb(a)(2)(A).
Finally, that the President had to reach for a two-
decades-old law is especially telling. The COVID-19
pandemic resulted in an unprecedented flurry of legis-
lation and appropriations. Between 2020 and 2022,
Congress passed nine different COVID-19 relief bills,
which totaled approximately $5 trillion in spending.
Alicia Parlapiano et al., Where $5 Trillion in Pandemic
Stimulus Money Went, N.Y. Times (Mar. 11, 2022).
One of these bills, the CARES Act, even suspended fed-
eral student loan payments. Federal Student Loan
Debt Relief in the Context of Covid-19, Cong. Rsch.
 28
Serv., R46314 (updated Oct. 12, 2022). Yet none of
these statutes authorized new loan forgiveness, di-
rected the President to use the HEROES Act to forgive
loans, or appropriated funds for the forgiveness of stu-
dent loans. Student loan forgiveness was the dog that
didn’t bark.
C. The President’s actions in this case portend a
constitutional order where the President’s ability to
spend is effectively unchecked. The President relied on
one emergency (COVID) to unlock one new authority
(loan forgiveness). But there are currently 42 extant
emergencies, the oldest in effect since 1979. See Bren-
nan Center, Declared National Emergencies Under the
National Emergencies Act (updated Dec. 12, 2022).
Each of these emergencies allows the President to ac-
cess 123 statutory emergency powers through various
emergency declarations without any need for Congres-
sional approval; another 13 emergency powers become
active if Congress declares a state of emergency. Bren-
nan Center, A Guide to Emergency Powers and Their
Use PDF p. 3 (updated June 9, 2022). Ninety-six of the
emergency powers require nothing more than the
President’s signature on an emergency declaration. Id.
Using the same authority and rationale, the Presi-
dent could wipe out the loans of all members of the
armed forces and their families because the nation is
at war, notwithstanding the various statutory caps on
military educational benefits. Or the President could
unilaterally declare an emergency—a border emer-
gency or a climate emergency, for example—as a pre-
text for unilaterally granting financial relief to some
politically important constituency.
Student loans are also not the only form of financial
assistance backed by the federal government. In 2021,
a total of $5 trillion in federal direct and guaranteed
loans were outstanding. See OMB, Analysis
 29
Perspectives: Fiscal Year 2023, at 270 tbl. 19-1. Only
about a quarter of those loans ($1.3 trillion) were stu-
dent loans. Id. If the President can bail out one cate-
gory of loans to make good on a campaign promise,
there is no reason why a future President could not
similarly bail out farmers, small businesses, veterans,
homeowners, or the beneficiaries of some other federal
loan program. All he would have to do is find a suffi-
ciently broad or vague statutory grant to justify the
bailout. See, e.g., 12 U.S.C. § 1150 (authorizing the
Secretary of Agriculture to “compromise, adjust, or
cancel indebtedness arising from loans and payments
made or credit extended to farmers”).
And this does not even take into account how the
President might find new spending authority even in
the absence of a declared emergency. As the above
analysis demonstrates, modern Presidents have in-
creasingly invoked expansive interpretations of appro-
priations statutes where the only emergency is politi-
cal.
This case thus demonstrates why it is essential that
spending statutes be strictly construed. Under the pro-
gram, the Administration is granting hundreds of bil-
lions of dollars in debt relief to tens of millions of indi-
viduals who were never intended to be beneficiaries,
under circumstances never intended to support stu-
dent loan relief—all in furtherance of a policy Con-
gress declined to enact. If the Court affirms the Ad-
ministration’s creative statutory interpretation and
expansive assertion of authority, it would herald vir-
tually unlimited executive spending authority.
 30
CONCLUSION
This Court should reverse the judgment of the dis-
trict court in Nebraska and affirm the judgment of the
district court in Brown.

Respectfully submitted,
WILLIAM R. LEVI*
DANIEL J. HAY
PETER A. BRULAND
LAURA C. MULHERIN
JEREMY ROZANSKY†
MATTHEW H. SIMPSON†
SIDLEY AUSTIN LLP
1501 K Street, N.W.
Washington, D.C. 20005
(202) 736-8000
[email protected]

Counsel for Amici Curiae

February 3, 2023 *Counsel of Record

† Messrs. Rozansky and Simpson are admitted only

in Illinois and Virginia, respectively, and are practic-
ing law in the District of Columbia pending admission
to the D.C. Bar and under the supervision of principals
of the firm who are members in good standing of the
D.C. Bar.