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Biden v. Nebraska - Amicus Brief, 02.04.2023
Biden v. Nebraska - Amicus Brief, 02.04.2023
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HISTORICAL DOCUMENTS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
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
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.
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]