No.

22-506
444444444444444444444444444444444444444444
IN THE
Supreme Court of the United States
____________________
JOSEPH R. BIDEN, PRESIDENT OF THE UNITED STATES,
ET AL., Petitioners,
v.
NEBRASKA, ET AL., Respondents.
____________________
On Writ of Certiorari before Judgment
to the United States Court of Appeals
for the Eighth Circuit
____________________
Brief Amicus Curiae of
Citizens United,
Citizens United Foundation, and
The Presidential Coalition, LLC
in Support of Respondents
____________________

MICHAEL BOOS WILLIAM J. OLSON*

DANIEL H. JORJANI JEREMIAH L. MORGAN
CITIZENS UNITED ROBERT J. OLSON
1006 Penn. Ave. S.E. WILLIAM J. OLSON, P.C.
Washington, DC 20003 370 Maple Ave. W., Ste. 4
(202) 547-5420 Vienna, VA 22180
(703) 356-5070
RICK BOYER [email protected]
INTEGRITY LAW FIRM *Counsel of Record
P.O. Box 10953
Lynchburg, VA 24506 Attorneys for Amici Curiae
(434) 401-2093 February 3, 2023

444444444444444444444444444444444444444444
 TABLE OF CONTENTS
Page

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . iii

INTEREST OF THE AMICI CURIAE . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . 6

ARGUMENT

I. THE CONSTITUTION GUARDS AGAINST

EXECUTIVE INTRUSIONS INTO LEGISLATIVE
POWER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

A. “Fill Up the Details” . . . . . . . . . . . . . . . . . . 8

B. The Non-Delegation Doctrine and the

Intelligible Principle Exception . . . . . . . . 15

II. THE DEPARTMENT OF EDUCATION’S LOAN

CANCELLATION PROGRAM IS UNPRECEDENTED
AND NOT AUTHORIZED BY THE HEROES ACT . . . 19

A. The Secretary Has No Authority to

Cancel Student Debt under the HEROES
Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

1. There is no qualifying national

emergency . . . . . . . . . . . . . . . . . . . . . . 19
 ii

2. The Secretary has no authority to

“waive” entire loans for entire
classes of borrowers . . . . . . . . . . . . . . 22

B. The Unprecedented Nature of the

Program Demonstrates that It Is Not
Statutorily Authorized . . . . . . . . . . . . . . . 23

C. If the Waiver Program Is Found to Be

Statutorily Authorized, the HEROES Act
Is an Unconstitutional Delegation of
Legislative Power . . . . . . . . . . . . . . . . . . . 25

III. THE EXECUTIVE BRANCH’S REPEATED

ATTEMPTS TO USURP LEGISLATIVE POWER
REQUIRE GUIDANCE FROM THIS COURT . . . . . . 26

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
 iii

TABLE OF AUTHORITIES
Page
U.S. CONSTITUTION
Art. I, sec. 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Art. I, sec. 9, cl. 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

STATE CONSTITUTIONS
Ga. Const. of 1777, art. I . . . . . . . . . . . . . . . . . . . . 14
Ky. Const. of 1792, Art. I, Sections 1 and 2 . . . . . 14
Mass. Const. of 1780, pt. 1, art. XXX . . . . . . . . . . 14
Va. Const. of 1776 . . . . . . . . . . . . . . . . . . . . . . . . . 14
Vt. Const. of 1786, Ch. II, Sec. VI . . . . . . . . . . . . . 14

STATUTES
11 U.S.C. § 523(a)(8) . . . . . . . . . . . . . . . . . . . . . . . 25
20 U.S.C. § 1087 . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
20 U.S.C. § 1087e . . . . . . . . . . . . . . . . . . . . . . . . . . 25
20 U.S.C. § 1098aa . . . . . . . . . . . . . . . . . . . . . . . . . 20
20 U.S.C. § 1098bb . . . . . . . . . . . . . . . . . . . 4,19,20,22
20 U.S.C. § 1098cc . . . . . . . . . . . . . . . . . . . . . . . . . 25
Higher Education Relief Opportunities
for Students Act of 2003,
Pub. Law No. 108-76 . . . . . . . . . . . 2,3,19-22,26

CASES
Ala. Ass’n of Realtors v. HHS, 141 S. Ct. 2485
(2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
DOT v. Ass’n of Am. R.R., 575 U.S. 43 (2015) . 17,18
Gundy v. United States, 139 S. Ct. 2116
(2019) . . . . . . . . . . . . . . . . . . . . . . . . . . 7,18,28,29
J. W. Hampton, Jr., & Co., v. United States,
276 U.S. 394 (1928) . . . . . . . . . . . . . . . . . . . . . 15
Marbury v. Madison, 5 U.S. 137 (1803) . . . . . . . . 29
 iv

Mashall Field & Co. v. Clark, 143 U.S. 649

(1892) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
MCI Telecommunications Corp. v. Am. Tel. &
Tel. Co., 512 U.S. 218 (1994) . . . . . . . . . . . . 22,25
Nat’l Fed’n of Indep. Bus. v. OSHA,
142 S. Ct. 661 (2022) . . . . . . . . . . . . . . . 21,23,27
Third Nat’l Bank in Nashville v. Impac Ltd.,
432 U.S. 312 (1977) . . . . . . . . . . . . . . . . . . . . . 21
Wayman v. Southard, 23 U.S. 1 (1825) . . . . . . . . 8,26
West Virginia v. EPA, 142 S. Ct. 2587
(2022) . . . . . . . . . . . . . . . . . . . . . . . . . 24,25,27,28
Whitman v. Am. Trucking Ass’ns, 531 U.S.
457 (2001). . . . . . . . . . . . . . . . . . . . . . . . . . 6-8,17

MISCELLANEOUS
1 Annals of Cong. 789 (1789) (Joseph Gales ed.,
1834) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10,11
8 Annals of Cong. 2007-2008 (1798) . . . . . . . . . . . 12
21 Annals of Cong. 2022 (1810) . . . . . . . . . . . . . . . 12
31 Annals of Cong. 1144 (1818) . . . . . . . . . . . . . . . 13
J. Biden, “Joe Biden Outlines New Steps to Ease
Econimic Burden on Working People”
Medium.com (Apr. 9, 2020) . . . . . . . . . . . . . . . . 5
Cong. Globe, 27th Cong., 2nd Sess. 510 (1842). . . 13
149 Cong. Rec. H2553–54 (Apr. 1, 2003). . . . . . . . 20
149 Cong. Rec. S10866 (July 31, 2003) . . . . . . . . . 20
149 Cong. Rec. E663 (Apr. 3, 2003) . . . . . . . . . . . . 20
Congressional Research Service, “Statutory
Basis for Biden Administration Student
Loan Forgiveness,” (Sept. 13, 2022) . . . . . . . 4,23
Jonathan Elliot, ed., 4 The Debates in the
Several State Conventions, on the Adoption
of the Federal Constitution . . . . . . . . . . . . . . . 11
 v

Federalist No. 47, G. Carey & J. McClellan, The

Federalist Papers (Liberty Fund: 2000) . . . . . 6,9
Federalist No. 51, G. Carey & J. McClellan, The
Federalist Papers (Liberty Fund: 2000) . . . . 9,10
K. Heath, “Here’s a list of the 31 national
emergencies that have been in effect for
years,” ABC News (Jan. 10, 2019). . . . . . . . . . 21
J. Hood, “Before There Were Mouseholes:
Resurrecting the Non-Delegation Doctrine,”
30 BYU J. Pub. L. 142 (2015-2016). . . . . . 10, 15
H.R. 6800, 116th Cong. § 150117 (2020) . . . . . . . . 25
J. Locke, Two Treatises of Government
(Laslett, ed. 1963) . . . . . . . . . . . . . . . . . . . . . . . 9
James Madison, Report of the Committee to
Whom Were Referred the Communications
of Various States ... Concerning the Alien
and Sedition Laws (1799) . . . . . . . . . . . . . . . . 12
B. McCaughey, “Student-loan forgiveness is
Biden’s ‘Hail Mary’ pass to buy votes,” New
York Post (Aug. 25, 2022) . . . . . . . . . . . . . . . . . 5
N. Pelosi Press Release, Transcript of Pelosi
Weekly Press Conference Today
(July 28, 2021) . . . . . . . . . . . . . . . . . . . . . . . . . 24
Scalia & Garner, Reading Law
(Thomson West: 2012) . . . . . . . . . . . . . . . . . . . 21
W. Olson & A. Woll, “Executive Orders and
National Emergencies: How Presidents
Have Come to “Run the Country” by
Usurping Legislative Power,” Cato
Institute (Oct. 28, 1999) . . . . . . . . . . . . . . . . . . 20
M. Stratford and E. Daniels, “How Biden finally
got to ‘yes’ on canceling student debt,”
Politico (Aug. 25, 2022) . . . . . . . . . . . . . . . . 23,24
 vi

C. Sunstein, “Nondelegation Canons,” 67 CHI.

L. REV. 315 (2000) . . . . . . . . . . . . . . . . . . . . 16,17
R. Emmett Tyrrell, Jr., “Biden buys the vote
with student loan forgiveness,” Washington
Times (Aug. 30, 2022) . . . . . . . . . . . . . . . . . . . . 5
U.S. Dep’t of Justice, Office of Legal Counsel,
“Use of the Heroes Act of 2003 to Cancel
the Principal Amounts of Student
Loans”. . . . . . . . . . . . . . . . . . . . . . . . . 20,23,25,26
 INTEREST OF THE AMICI CURIAE1

Citizens United is a nonprofit social welfare

organization, exempt from federal income tax under
Internal Revenue Code (“IRC”) section 501(c)(4).
Citizens United Foundation is a nonprofit educational
and legal organization, exempt from federal income tax
under IRC section 501(c)(3). These organizations were
established, inter alia, to participate in the public
policy process, including conducting research, and
informing and educating the public on the proper
construction of state and federal constitutions, as well
as statutes related to the rights of citizens, and
questions related to human and civil rights secured by
law. The Presidential Coalition, LLC is a political
committee under IRC section 527.

These amici are dedicated to restoring government

to the people through a commitment to limited
government, federalism, individual liberty, and free
enterprise. Citizens United and Citizens United
Foundation regularly participate as litigants (e.g.,
Citizens United v. Fed. Election Comm’n, 558 U.S. 310
(2010)) and amici in important cases in which these
legal principles are at stake. The Presidential
Coalition has filed amicus briefs in numerous similar
cases.

1
It is hereby certified that no counsel for a party authored this
brief in whole or in part; and that no person other than these
amici curiae, their members, or their counsel made a monetary
contribution to its preparation or submission.
 2

STATEMENT OF THE CASE

On August 24, 2022, at the direction of President

Biden, the Department of Education announced that
it would cancel “up to $20,000 in [federal student loan]
debt [for] Pell Grant recipients with loans held by the
Department and up to $10,000 ... to non-Pell Grant
recipients ... [whose] individual income was less than
$125,000 or $250,000 for households in 2020 or 2021.”2
Nebraska v. Biden, 2022 U.S. Dist. LEXIS 191616, *6-
7 (E.D. Mo. 2022). The Department asserted this loan
cancellation was authorized by the “Higher Education
Relief Opportunities for Students Act of 2003”
(“HEROES Act”), which allows waiver of student debt
“‘in connection with a war or other military operation
or national emergency.’” Id. at *4. The national
emergency relied on was the COVID virus. Id. at *6.

In September 2022, Nebraska, Missouri, Arkansas,

Iowa, Kansas, and South Carolina (the “Plaintiff
States”) filed suit in the Eastern District of Missouri,
seeking declaratory and injunctive relief “alleging the
Department’s student debt relief plan contravenes the
separation of powers and violates the Administrative
Procedure Act because it exceeds the Secretary’s
statutory authority and is arbitrary and capricious.”
Id. at *3. As to standing, the States alleged they
would incur costs from the States’ student debt

2
Education Dept. Press Release, “Biden-Harris Administration
Announces Final Student Loan Pause Extension Through
December 31 and Targeted Debt Cancellation to Smooth
Transition to Repayment” (Aug. 24, 2022).
 3

servicing programs, and four states would suffer loss

of future tax revenue. Id. at *20-21.

The district court concluded that the Plaintiff

States lacked standing and dismissed all counts of the
complaint. Id. at *21-22. On November 14, 2022, the
Eighth Circuit disagreed, finding that injury to
Missouri’s student loan agency did in fact constitute
injury to the state, and that therefore Missouri had
standing and granted a nationwide injunction to
preserve the status quo pending appeal. Nebraska v.
Biden, 52 F.4th 1044, 1047-48 (8th Cir. 2022).

The Department of Education asked this Court to

vacate the Eighth Circuit’s injunction, based on
standing and asserting that the loan cancellation plan
was authorized by the HEROES Act, and was neither
arbitrary nor capricious. The Department asked that,
if this Court should not stay the injunction, it would
construe the application as a petition for a writ of
certiorari before judgment. On December 1, 2022, this
Court denied the stay but granted certiorari to
consider “the questions presented in the application.”
Biden v. Nebraska, 143 S. Ct. 477 (2022).

STATEMENT

The challenged Biden student loan cancellation

program (“the Program”) constitutes a massive
Executive Branch expenditure of federal funds which
was never appropriated by Congress. Respondent
States calculate the Program “costs taxpayers more
than a half-trillion dollars over ten years.” Brief for
the Respondents at 31. In both type and scope, this
 4

waiver was completely unlike any prior exercise of the

HEROES Act,3 as it cancels completely up to $10,000
in student debt owed by 20 million Americans, while
significantly reducing the debt of another 20 million
persons.4

The federal government operates a massive

student loan program under the auspices of the Higher
Education Act of 1965 (“ HEA”). In 2003, following the
terrorist attacks of September 11, 2001, Congress
passed the Higher Education Relief Opportunities for
Students (HEROES) Act of 2003, Pub. Law No. 108-76.
The Act granted the Secretary of Education authority
to “waive or modify” certain administrative provisions
of the HEA, to allow it to defer student loan
repayments by active duty military members. The Act
also could be triggered to benefit “affected individuals”
in time of “war or ... national emergency.” 20 U.S.C.
§ 1098bb.

Considering that the Biden student loan

forgiveness program was totally unprecedented, it is
significant to consider its timing. It came in August
2022 of a Congressional election year where most
pundits were expecting a “red wave.” That wave never
materialized, and there may be some good,
old-fashioned political reasons that Republicans were

3
See Congressional Research Service, “Statutory Basis for Biden
Administration Student Loan Forgiveness,” (Sept. 13, 2022).
4
The White House, “Fact Sheet: President Biden Announces
Student Loan Relief for Borrowers Who Need It Most” (Aug. 24,
2022).
 5

disappointed. One commentator described the loan

forgiveness program in unvarnished terms:
“Supposedly President Joe Biden’s popularity went up
last week. How did he achieve this feat, raising his
popularity from 32% to the low 40s? He did it the
old-fashioned way. Joe bought the votes of 20 million
students who have been stupid enough to take out
usually catastrophically burdensome student loans.”
R. Emmett Tyrrell, Jr., “Biden buys the vote with
student loan forgiveness,” Washington Times (Aug. 30,
2022). The November 2022 Congressional election
thus was the second federal election cycle in which
student loan forgiveness was dangled before young
voters, candidate Biden having promised similar
student loan relief before the 2020 Presidential
election.5

Former New York Lieutenant Governor Betsy

McCaughey described the scheme as follows:
“College-debt forgiveness is President Biden’s Hail
Mary pass to buy votes and avoid a disastrous rout in
the midterm elections. But after the votes are
counted, the scheme is likely to collapse.” B.
McCaughey, “Student-loan forgiveness is Biden’s ‘Hail
Mary’ pass to buy votes,” New York Post (Aug. 25,
2022). As McCaughey predicted, it took until mid-
November for the Eighth Circuit to enjoin the
program, and what the courts would do after the
election with the loan forgiveness scheme was of much
less consequence — politically, but not
constitutionally.

5
J. Biden, “Joe Biden Outlines New Steps to Ease Economic
Burden on Working People,” Medium.com (Apr. 9, 2020).
 6

This Court granted certiorari to address the

questions set out by Petitioners: “(1) whether
respondents have Article III standing, and (2) whether
the plan exceeds the Secretary’s statutory authority or
is arbitrary and capricious.” Application at 38.

In considering the second question, these amici

urge this Court to take note that executive usurpations
of legislative authority are occurring with great
frequency, and thus should reconsider its
constitutional jurisprudence with regard to the
Nondelegation Doctrine. The student loan forgiveness
program provides an excellent opportunity for the
Court to accept the invitation of Justice Thomas to
“address the question whether our delegation
jurisprudence has strayed too far from our Founders’
understanding of separation of powers,” and to
“reconsider [this Court’s] precedents on cessions of
legislative power.” Whitman v. Am. Trucking Ass’ns,
531 U.S. 457, 487 (2001) (Thomas, J., concurring).

SUMMARY OF ARGUMENT

To limit exercises of what they often termed

arbitrary governmental power, the Framers fashioned
a multitude of structural guardrails. Among these,
James Madison elevated separation of powers to the
highest level of importance, stating “[n]o political truth
is certainly of greater intrinsic value, or is stamped
with the authority of more enlightened patrons of
liberty.” Federalist No. 47, G. Carey & J. McClellan,
The Federalist Papers (Liberty Fund: 2000) at 249.
 7

Certainly all Executive Branch actions which

intrude on the legislative function need to be
scrutinized to determine whether they were authorized
by prior congressional action. However, because the
spending power is so clearly vested exclusively in
Congress (Art. I, sec. 9, cl. 7), any unilateral Executive
Branch action that depletes the public fisc should be
inherently suspect.

In 2001, this Court reaffirmed the nondelegation

doctrine, as modified by the “intelligible principle” test:
“This text permits no delegation of those powers, and
so we repeatedly have said that when Congress confers
decisionmaking authority upon agencies Congress
must ‘lay down by legislative act an intelligible
principle to which the person or body authorized to
[act] is directed to conform.’” Whitman at 472 (citation
omitted). Although these two rules have coexisted for
decades, it has become increasingly clear that the
“intelligible principle” exception has swallowed the
“nondelegation” rule. The Biden Administration hopes
this Court will continue to allow yet another executive
usurpation — even at the cost of a half trillion dollars.

Justice Gorsuch put his finger on the reason that

the non-delegation doctrine should be revitalized:
“enforcing the separation of powers [is] about
respecting the people’s sovereign choice to vest the
legislative power in Congress alone. And it’s about
safeguarding a structure designed to protect their
liberties, minority rights, fair notice, and the rule of
law.” Gundy v. United States, 139 S. Ct. 2116, 2135
(2019) (Gorsuch, J., dissenting).
 8

For these and other reasons, these amici urge the

Court to take Justice Thomas’ cautionary note in his
Whitman concurrence, to revisit whether this Court’s
“intelligible principle” test has rendered the
nondelegation doctrine largely toothless, tearing down
the Constitution’s carefully crafted fence between the
legislative and executive functions.

ARGUMENT

I. THE CONSTITUTION GUARDS AGAINST

EXECUTIVE INTRUSIONS INTO
LEGISLATIVE POWER.

After the issue of standing (which is not addressed

by these amici) the central question in this case is
whether the Department of Education’s loan
forgiveness program was an authorized executive
branch implementation of a power properly delegated
by Congress. How such challenges are to be resolved
has changed over time.

A. “Fill Up the Details.”

The scope of executive branch authority to

implement legislation was addressed by Chief Justice
John Marshall in 1825, declaring “[i]t will not be
contended that Congress can delegate to the Courts, or
to any other tribunals, powers which are strictly and
exclusively legislative,” but other branches are allowed
to “act under such general provisions to fill up the
details.” Wayman v. Southard, 23 U.S. 1, 42-43
(1825) (emphasis added). Justice Marshall’s test
appears to have been designed to ensure the executive
 9

had just enough discretionary power to implement (or

execute) a law, but no more, thereby protecting the
Constitution’s vesting of “[a]ll legislative Powers
herein granted” to Congress. Art. I, sec. 1 (emphasis
added).

The “fill up the details” limitation appears to have

been consistent with John Locke’s view that no
legislative power, which itself is derived from the
people, can then be transferred on to others:

The power of the legislative being derived

from the people by a positive voluntary
grant and institution, can be no other than
what that positive grant conveyed, which
being only to make laws, and not to make
legislators, the legislative can have no power
to transfer their authority of making laws, and
place it in other hands. [J. Locke, Two
Treatises of Government at 408-09 (Laslett,
ed. 1963) (emphasis added).]

None of the Framers had any tolerance for any

delegation of legislative power. If actual legislative
power were to be transferred to the executive, it could
bring on the tyranny that Montesquieu sought to avoid
by separating powers. “‘When the legislative and
executive powers are united in the same person or
body ... there can be no liberty, because apprehensions
may arise lest the same monarch or senate should
enact tyrannical laws, to execute them in a tyrannical
manner.” Federalist No. 47. This view was reinforced
by James Madison in Federalist No. 51, where he
writes, “that separate and distinct exercise of the
 10

different powers of government ... is admitted on all

hands to be essential to the preservation of liberty.”

During the Constitutional Convention’s debate,

Madison and Charles Pinckney proposed specific
language granting the executive the “power to carry
into effect national laws ... and to execute such other
powers ‘not Legislative nor Judiciary in their nature,’
as may from time to time be delegated by the national
Legislature.”6 “The words ‘not legislative nor judiciary
in their nature’ were added to the proposed
amendment in consequence of a suggestion by General
Pinckney that improper powers might otherwise be
delegated.” Id. In the end, the Convention deleted the
language as unnecessary. “Yet, we are left with the
unanimous record that ... all believed the exercise of
non-executive power improperly delegated by the
legislature to be prohibited.” Id. at 142-143.

In 1789, Madison proposed adding an amendment

to ensure each branch of government stayed within its
own lane:

The powers delegated by this constitution to

the Government of the United States, shall be
exercised as therein appropriated, so that the
Legislative shall not exercise the powers
vested in the Executive or Judicial; nor the
Executive the power vested in the Legislative

6
J. Hood, “Before There Were Mouseholes: Resurrecting the
Non-Delegation Doctrine,” 30 BYU J. PUB. L. 142 (2015-2016)
(emphasis added).
 11

or Judicial; nor the Judicial the powers vested

in the Legislative or Executive.7

Madison’s amendment convincingly passed the

House of Representatives, but was defeated in the
Senate. Id. at 761. But the reason for its defeat was
not a lack of recognition by the Founders that the
Constitution reserved legislative power to Congress.
Indeed, both the amendment’s critics and Madison
himself viewed the amendment as unnecessary and
duplicative, because the Constitution’s text so clearly
already reserved legislative power to Congress.8

In a 1790 debate, Rep. Gerry argued, “If the

legislature ... have [a power], it is a legislative power,
and they have no right to transfer the exercise of it to
any other body.”9

The need to prevent any delegation of legislative

power to the executive was addressed and reaffirmed
repeatedly through the nation’s first century. Some
illustrations prove this point.

7
1 Annals of Cong. 789 (1789) (Joseph Gales ed., 1834).
8
Id. at 760.
9
Jonathan Elliot, ed., 4 The Debates in the Several State
Conventions, on the Adoption of the Federal Constitution: As
Recommended by the General Convention at Philadelphia, in
1787. Together with the Journal of the Federal Convention,
Luther Martin’s Letter, Yates’ Minutes, Congressional Opinions,
Virginia and Kentucky Resolutions of ’98-’99, and Other
Illustrations of the Constitution at 404 (Taylor & Maury 1854)
(statement of Rep. Gerry) (Aug. 1, 1790).
 12

The Alien and Sedition Acts were denounced for,

among other transgressions, the unconstitutional
delegation of legislative power. Rep. Edward
Livingston decried the Acts, arguing that under the
Alien Act, “the President alone is empowered to make
the law, to fix in his own mind what acts, what words,
what thoughts or looks, shall constitute the crime
contemplated by the bill.... This, then, comes
completely within the definition of despotism — an
union of Legislative, Executive, and Judicial powers.”10
A Virginia General Assembly report denounced the
Acts, noting that “[i]f nothing more were required ...
than a general conveyance of authority, without
laying down any precise rules it would follow, that the
power of legislation might be transferred by the
legislature from itself,” and would be
“unconstitutional.”11

In 1810, an amendment was proposed to an

embargo bill to allow the President to employ “public
armed vessels” to protect overseas commerce, and to
“‘issue instructions ... for the government of the ships
which may be employed in that service.’” Rep. John
Jackson (a future federal judge) objected on
nondelegation grounds, and the amendment was
defeated by a 2-1 margin.12

10
8 Annals of Cong. 2007-2008 (1798).
11
James Madison, Report of the Committee to Whom Were
Referred the Communications of Various States ... Concerning the
Alien and Sedition Laws (1799).
12
See 21 Annals of Cong. 2022 (1810) (“It seems to me with equal
constitutionality we might refer to the President the authority of
 13

In an 1818 floor debate, Virginia Rep. Alexander

Smyth argued, “[l]egislative power, when granted, is
not transferable; nor can it be exercised by substitute;
nor in any other manner than according to the
constitution granting it.”13

In 1842, a proposal was introduced in Congress to

allow executive branch officials to issue “rules and
regulations” with criminal sanctions that, unless
Congress repealed them, “[would] be the law of the
land.” Rep. John Quincy Adams objected that the
proposal was an unconstitutional delegation, and the
proposal was quickly withdrawn.14

Early state constitutions contain express

nondelegation provisions, including those of

declaring war, levying taxes, or of doing everything which the

Constitution points out as the duty of Congress. All legislative
power is by the Constitution vested in Congress. They cannot
transfer it.”).
13
31 Annals of Cong. 1144 (1818).
14
See Cong. Globe, 27th Cong., 2nd Sess. 510 (1842).
 14

Massachusetts,15 Virginia,16 Georgia,17 Vermont,18 and

Kentucky.19 The constitutions of Maryland and North
Carolina similarly provided, “That the legislative,

15
Mass. Const. of 1780, pt. 1, art. XXX: “In the government of
this commonwealth, the legislative department shall never
exercise the executive and judicial powers, or either of them; the
executive shall never exercise the legislative and judicial powers,
or either of them; the judicial shall never exercise the legislative
and executive powers, or either of them; to the end it may be a
government of laws, and not of men.”
16
Va. Const. of 1776: “The legislative, executive, and judiciary
department, shall be separate and distinct, so that neither
exercise the powers properly belonging to the other: nor shall any
person exercise the powers of more than one of them, at the same
time....”
17
Ga. Const. of 1777, art. I: “The legislative, executive, and
judiciary departments shall be separate and distinct, so that
neither exercise the powers properly belonging to the other.”
18
Vt. Const. of 1786, Ch. II, Sec. VI: “The legislative, executive,
and judiciary departments, shall be separate and distinct, so that
neither exercise the powers properly belonging to the other.” See
also G. Lawson and P. Granger, “The ‘Proper’ Scope of Federal
Power: A Jurisdictional Interpretation of the Sweeping Clause,”
43 DUKE L.J. 267 (1993).
19
Ky. Const. of 1792, Art. I, Sections 1 and 2: “1. The powers of
government shall be divided into three distinct departments, each
of them to be confided to a separate body of magistracy, to-wit:
those which are legislative to one, those which are executive to
another, and those which are judiciary to another. 2. No person,
or collection of persons, being of one of these departments, shall
exercise any power properly belonging to either of the others,
except in the instances hereinafter expressly permitted.”
 15

executive and ... judicial powers ought to be forever

separate and distinct from each other.”20

B. The Non-Delegation Doctrine and the

Intelligible Principle Exception.

In 1892, this Court flatly declared “That Congress

cannot delegate legislative power to the President is a
principle universally recognized as vital to the
integrity and maintenance of the system of
government ordained by the Constitution.” Marshall
Field & Co. v. Clark, 143 U.S. 649, 692 (1892).

Yet, as government became bigger and the federal

budget became larger, there developed pressure on
courts to ignore the original plan and allow the growth
of the executive power. As a result, even before the
pressures on this Court from President Roosevelt and
his New Deal, this Court — while still paying
rhetorical homage to the nondelegation doctrine —
crafted a new test that over time has effectively
eviscerated the doctrine. “If Congress shall lay down
by legislative act an intelligible principle to which
the person or body authorized to fix such rates is
directed to conform, such legislative action is not a
forbidden delegation of legislative power.” J. W.
Hampton, Jr., & Co. v. United States, 276 U.S. 394,
409 (1928) (emphasis added). While the “intelligible
principle” standard has the sound of a legal principle,
it must be noted that it is neither grounded in the
constitutional text, nor is it a term with a meaning

20
J. Hood at 136-137.
 16

developed at common law. Thus, it was no surprise

that over time various courts would give their own
meaning to these vague, indeed empty words.

From its beginning almost a century ago, the Court

repeatedly has allowed executive branch officials not
just to “fill in the details” as Justice Marshall
described their legitimate role, but to “write the laws”
— so long as they call them “regulations,” “rules,”
“guidance,” or the like, and can source them to some
statutory authorization.

Congress has demonstrated itself to be willing to

federalize every problem, and to use every excuse to
assume control over every aspect of American life,
including criminalizing areas that were to be left
exclusively to the States. Thus, Congress has been
complicit with the executive branch in the delegation
of legislative purpose. Actually, delegation suits the
political needs of Congress. When an agency issues a
popular regulation, a Congressman can claim credit for
authorizing it. When an agency issues an unpopular
regulation, the Congressman can explain to his
constituents that he was not responsible — it was
some bureaucrat. Thus, the intelligible principle has
not only elevated the executive branch over the
Congress, but it has also made it exceedingly difficult
for the American People to hold anyone in government
politically accountable even for major decisions that
affect their lives.

Professor Cass Sunstein, no opponent of executive

power, describes the United States Code as having
become “littered” with provisions authorizing
 17

administrative agencies “to do whatever it thinks

best.” While he admits that may be an overstatement,
it is still true that the doctrine “is now merely a bit of
rhetoric.” Moreover, “[s]ince 1935, the Supreme Court
has not struck down an act of Congress on
nondelegation grounds, notwithstanding the existence
of a number of plausible occasions.” C. Sunstein,
“Nondelegation Canons,” 67 CHI. L. REV. 315 (2000).

In 2001, in a case finding that the “intelligible

principle” test was met, Justice Thomas stressed it
was an atextual test that could fail to guard against
executive usurpation of legislative power:

[T]he Constitution does not speak of

“intelligible principles.” Rather, it speaks
in much simpler terms: “All legislative Powers
herein granted shall be vested in a
Congress....” I am not convinced that the
intelligible principle doctrine serves to prevent
all cessions of legislative power. I believe that
there are cases in which the principle is
intelligible and yet the significance of the
delegated decision is simply too great for the
decision to be called anything other than
“legislative.” [Whitman at 487 (Thomas, J.,
concurring) (emphasis added).]

Addressing the issue again in 2015, Justice

Thomas explained that: “The Constitution does not
vest the Federal Government with an undifferentiated
‘governmental power.’ Instead, the Constitution
identifies three types of governmental power and, in
the Vesting Clauses, commits them to three branches
 18

of Government.... These grants are exclusive.” DOT

v. Ass’n of Am. R.R., 575 U.S. 43, 67 (2015) (Thomas,
J., concurring). To this, Justice Alito succinctly set out
the reasons for the nondelegation rule:

The principle that Congress cannot delegate

away its vested powers exists to protect
liberty. Our Constitution, by careful design,
prescribes a process for making law, and
within that process there are many
accountability checkpoints.... It would dash
the whole scheme if Congress could give its
power away to an entity that is not
constrained by those checkpoints. The
Constitution’s deliberative process was
viewed by the Framers as a valuable feature ...
not something to be lamented and evaded. [Id.
at 61 (Alito, J., concurring) (emphasis added).]

Then in 2019, an intelligible principle was found to

be sufficient, but the doctrine came under further
attack. In dissent, Justice Gorsuch provided a
sweeping review of the text, history, and tradition of
the nondelegation doctrine. Gundy at 2134-35
(Gorsuch, J., dissenting). Justice Gorsuch proposed a
three-part test: “Does the statute assign to the
executive only the responsibility to make factual
findings? Does it set forth the facts that the executive
must consider and the criteria against which to
measure them? And most importantly, did Congress,
and not the Executive Branch, make the policy
judgments?” Id. at 2141 (Gorsuch, J., dissenting).
 19

The case now before the Court provides yet

another opportunity for this Court to re-examine the
atextual intelligible principle test and discard it in
favor of a textually faithful approach.

II. THE DEPARTMENT OF EDUCATION’S

LOAN CANCELLATION PROGRAM IS
UNPRECEDENTED AND NOT AUTHORIZED
BY THE HEROES ACT.

A. The Secretary Has No Authority to

Cancel Student Debt under the HEROES
Act.

The HEROES Act authorizes the Secretary of

Education to “waive or modify” statutory provisions of
the Higher Education Act of 1965 under which the
federal student loan regime was created. See 20
U.S.C. § 1098bb. Under the HEROES Act, the
Secretary has limited statutory authority, to (1) “waive
or modify any statutory or regulatory provision
applicable to the student financial assistance
programs” when (2) “necessary in connection with a ...
national emergency” and (3) “necessary to ensure that
... recipients of student financial assistance ... who are
affected individuals are not placed in a worse position
financially in relation to that financial assistance
because of their status as affected individuals.” Id.

1. There is no qualifying national

emergency.

Congress enacted the HEROES Act in the wake of

the September 11, 2001 terrorist attacks, to assist
 20

military personnel on active duty by allowing

deferment of loan payments, “for our nation’s defense.”
20 U.S.C. § 1098aa(b)(1)–(6). The Act passed by a 421-
1 vote in the House21 and a unanimous voice vote in
the Senate,22 giving no indication it authorized blanket
waivers of student debt.

Although the HEROES Act also contained

language allowing waiver of student debt “in
connection with a war or other military operation or
national emergency” (20 U.S.C. § 1098bb), that
provision had never previously been used to cancel
loans for all borrowers within a class.23 It certainly
does not apply to borrowers who are not “affected
individuals” due to a covered emergency. And, there is
no reason to believe that it could be triggered by the
numerous states of emergency in which America has
been continuously for decades.24

Almost completely unknown to Americans, as of

2019, America was technically under 31 active
“national emergencies” (e.g., assistance to Albanian
insurgents in Macedonia (2001), election corruption in

21
See 149 Cong. Rec. H2553–54 (Apr. 1, 2003); 149 Cong. Rec.
E663 (Apr. 3, 2003).
22
149 Cong. Rec. S10866 (July 31, 2003).
23
U.S. Dep’t of Justice, Office of Legal Counsel,“Use of the Heroes
Act of 2003 to Cancel the Principal Amounts of Student Loans.”
24
See W. Olson & A. Woll, “Executive Orders and National
Emergencies: How Presidents Have Come to ‘Run the Country’ by
Usurping Legislative Power,” Cato Institute (Oct. 28, 1999).
 21

Belarus (2006), and election-related violence in the

Congo (2006).25 There has been no demonstration
below that a law enacted after 9-11 was designed to be
triggered by such evergreen emergency declarations.
Indeed, if those types of declarations triggered the
Heroes Act, it could be invoked at any time by any
President.

“It is a familiar principle of statutory construction

that words grouped in a list should be given related
meaning.” Third Nat’l Bank in Nashville v. Impac
Ltd., 432 U.S. 312, 322 (1977).26 As the term “national
emergency” is used within the phrase “war or other
military operation or national emergency,” it should
not be understood as providing blanket cancellation
authority for other types of national emergencies,
especially when congressional findings specify the
HEROES Act was intended to benefit active duty
military personnel. The DOE had “never before
adopted a broad ... regulation of th[at] kind.” Nat’l
Fed’n of Indep. Bus. v. OSHA, 142 S. Ct. 661, 666
(2022).

25
K. Heath, “Here’s a list of the 31 national emergencies that
have been in effect for years,” ABC News (Jan. 10, 2019).
26
Accord, Scalia & Garner, Reading Law §31, p.195 (Thomson
West: 2012).
 22

2. The Secretary has no authority to

“waive” entire loans for entire classes
of borrowers.

The HEROES Act gives the Secretary authority to

“modify” — but not waive — his determination of
“‘annual adjusted family income’ … to reflect more
accurately the financial condition of” affected
individuals, (20 U.S.C. § 1098bb(a)(2)(C)), and the
calculation of refunds to schools “so that no
overpayment will be required to be returned or
repaid.” Id. § 1098bb(a)(2)(D). “Modify” means “to
change moderately or in minor fashion.” MCI
Telecommunications Corp. v. Am. Tel. & Tel. Co., 512
U.S. 218, 225 (1994) (the word “modify” in a federal
law “has a connotation of increment or limitation”). A
waiver is much more than a modification, here costing
the federal government a half-trillion dollars.

The Secretary has statutory authority to “waive” a

requirement of the HEROES Act to prevent “affected
individuals” from being placed “in a worse position
financially in relation to” their student loans “because
of their status as affected individuals.” Id. 20 U.S.C.
§ 1098bb(a)(2)(A). The Secretary also may waive
“administrative requirements placed on affected
individuals” to the extent he can do so “without
impairing the integrity of the student financial
assistance programs.” Id. § 1098bb(a)(2)(B). However,
neither of these waiver provisions apply here. The
program places at least 20 million student borrowers
not just in statu quo, but in a better position than they
were before the COVID “emergency,” by completely
cancelling their debt. And it eviscerates “the integrity
 23

of the student financial assistance programs” by

removing a half-trillion dollars in assets payable to the
federal government when Congress has not
appropriated these monies.

B. The Unprecedented Nature of the

Program Demonstrates that It Is Not
Statutorily Authorized.

President Biden’s own Office of Legal Counsel

concedes that “the direct cancellation of the principal
balances of student loans would be a new application
of the statute.”27 The Congressional Research Service
agrees that “[c]ategorical cancellation ... reflects a use
of [the Secretary’s] HEROES Act authority that is
unlike past invocations.”28

This “lack of historical precedent,” coupled with

the breadth of authority that the Secretary now
claims, is a “telling indication” that the mandate
extends beyond the agency’s legitimate reach. See
Nat’l Fed’n of Indep. Bus. v. OSHA at 666.

Even President Biden has questioned his own

authority to issue blanket cancellations of student
debt. “Biden entered the presidency deeply skeptical
of the idea of writing off large chunks of student loan
debt. He questioned publicly whether he had the

27
Office of Legal Counsel, “Use of the HEROES Act of 2003 to
Cancel the Principal Amounts of Student Loans.”
28
Congressional Research Service, “Statutory Basis for Biden
Administration Student Loan Forgiveness” at 1.
 24

authority to do it.”29 But despite his doubts as to legal

authority, “[d]uring the campaign, he promised to
provide student debt relief.”30

As recently as July 28, 2021, House Speaker Nancy

Pelosi defended the jurisdictional authority of
Congress, warning that the Biden Administration had
no legal authority for a blanket cancellation of student
debt. “People think that the President of the United
States has the power for debt forgiveness. He does
not.... [H]e does not have that power. That has to be
an act of Congress.”31

Just last year, the EPA “Clean Power Plan” rule

was struck down by this Court where the Secretary’s
“view of [the agency’s] authority was not only
unprecedented; it also effected a fundamental revision
of the statute, changing it from [one sort of] scheme of
... regulation into an entirely different kind.” West
Virginia v. EPA, 142 S. Ct. 2587, 2612 (2022) (internal
quotation omitted). That description applies here. As
Justice Gorsuch stated then: “[A]n agency’s attempt to
deploy an old statute focused on one problem to solve
a new and different problem may also be a warning

29
M. Stratford and E. Daniels, “How Biden finally got to ‘yes’ on
canceling student debt,” Politico (Aug. 25, 2022).
30
The White House, “Fact Sheet: President Biden Announces
Student Loan Relief for Borrowers Who Need It Most” (Aug. 24,
2022).
31
N. Pelosi Press Release, Transcript of Pelosi Weekly Press
Conference Today (July 28, 2021).
 25

sign that it is acting without clear congressional

authority.” Id. at 2623 (Gorsuch, J., concurring).

In creating the federal student loan regime,

Congress did not make it easy for students to avoid
repayment of loans, which are not even dischargeable
in bankruptcy. See 11 U.S.C. § 523(a)(8).

Nor does Congress “typically use oblique or

elliptical language to empower an agency to make a
‘radical or fundamental change’ to a statutory scheme.”
West Virginia at 2609 (quoting MCI Tele. Corp. at
229). Where Congress has acted to discharge student
loans, it has done so to address only limited and
narrowly targeted instances. See, e.g., 20 U.S.C.
§§ 1098cc (tuition breaks for military service
members), 1087 (cancellation of loans of deceased,
disabled, or bankrupt students), 1087e(f) (deferment),
and 1087e(m)(2) (loan cancellation amount).
Moreover, in 2020, in the heart of the COVID
pandemic, Congress considered, but declined to enact,
a proposal to provide up to $10,000 in student-loan
debt. See H.R. 6800, 116th Cong. § 150117 (2020).

C. If the Waiver Program Is Found to Be

Statutorily Authorized, the HEROES Act
Is an Unconstitutional Delegation of
Legislative Power.

The Secretary asserts that the HEROES Act

“grants the Secretary expansive power to ‘waive or
modify’ any provisions of title IV and its implementing
 26

regulations,”32 that “class-wide debt relief in these

circumstances is appropriate” under the Act (id.), and
that a blanket cancellation of a half-trillion dollars in
debt that Congress has directed to be repaid — and
indeed has expressly declined to cancel statutorily —
constitutes a “waiver” or “modification” of Congress’s
loan repayment directive. Id.

If the Court finds that this interpretation of the

Act is correct, and Congress actually has delegated to
the Executive Branch the authority to write a new law,
then the HEROES Act most certainly would constitute
an unconstitutional delegation of “powers which are
strictly and exclusively legislative.” Wayman, 23 U.S.
at 42.

III. THE EXECUTIVE BRANCH’S REPEATED

ATTEMPTS TO USURP LEGISLATIVE
POWER REQUIRE GUIDANCE FROM THIS
COURT.

During the Biden Administration, on repeated

occasions, this Court has been required to strike down
usurpations of legislative power by executive branch
agencies. However, thus far the Court has done so
based on a finding of a lack of statutory authorization
for the challenged action or some defect in the agency’s
adherence to the Administrative Procedure Act,
avoiding a ruling on constitutional grounds. Consider
the following three recent cases evaluating executive
actions of the Biden Administration.

32
Office of Legal Counsel, “Use of the HEROES Act of 2003 to
Cancel the Principal Amounts of Student Loans” at 2-4.
 27

In August 2021, this Court decided Ala. Ass’n of

Realtors v. HHS, 141 S. Ct. 2485 (2021), and struck
down the “unprecedented” “claim of expansive
authority” assumed by the Department of Health and
Human Services and the Centers for Disease Control
to impose a nationwide eviction moratorium due to the
COVID-19 outbreak. Id. at 2489. The Court avoided
the constitutional issue by finding that the eviction
moratorium exceeded statutory authority. Id. at 2490.

In January 2022, citing the “Major Questions

Doctrine” — which the Court likened to the
Nondelegation Doctrine as being grounded in the
separation of powers concerns — this Court struck
down a COVID “vaccination” mandate from the Labor
Department’s Occupational Safety and Health
Administration. The mandate required that all
employers with 100 or more employees force every
employee to receive the “vaccination.” Nat’l Fed’n of
Indep. Bus. v. OSHA at 662. Again, this Court found
the mandate exceeded OSHA’s statutory authority
and noted that “[i]t is telling that OSHA, in its half
century of existence, has never before adopted a broad
public health regulation of this kind.” Id. at 665-66.

In June 2022, this Court struck down the

Environmental Protection Agency’s Clean Power Plan
rule, which addressed carbon dioxide emissions from
existing coal- and natural-gas-fired power plants. See
West Virginia v. EPA. Again the Court decided the
case based on the “Major Questions Doctrine.” The
Court noted that the authority claimed by the EPA
“conveniently enabled it to enact a program that ...
‘Congress [had already] considered and rejected....’”
 28

Id. at 2614. This Court struck down the agency action

on the basis that it exceeded statutory authorization.
Id. at 2615-2616. In his concurrence, Justice Gorsuch
noted the huge separation of powers problem raised by
the EPA’s action and the importance of that scheme of
separation to individual liberty. “Permitting Congress
to divest its legislative power to the Executive Branch
would dash [this] whole scheme. Legislation would
risk becoming nothing more than the will of the
current President, or, worse yet, the will of unelected
officials barely responsive to him.” Id. at 2618
(Gorsuch, J., concurring) (internal quotations omitted).

While there is no doubt merit in adhering to the

constitutional avoidance doctrine, it is clear that the
Executive Branch has learned nothing whatsoever
from this Court’s rebuffs based on statutory language,
and, if past is prologue, more executive usurpations
can be expected during the remaining years of the
Biden Administration. This causes parties aggrieved
by lawless Executive Branch actions to be under
continual threat, and in constant litigation, with the
nondelegation doctrine lurking in the background of
each challenge. Accordingly, these amici suggest that
this case be the one that falls within the rule Justice
Gorsuch articulated in his 2019 dissent in Gundy:

when a case or controversy comes within the

judicial competence, the Constitution does
not permit judges to look the other way;
we must call foul when the constitutional lines
are crossed. Indeed, the framers afforded us
independence from the political branches in
large part to encourage exactly this kind of
 29

“fortitude ... to do [our] duty as faithful

guardians of the Constitution.... [W]e have an
obligation to decide whether Congress has
unconstitutionally divested itself of its
legislative responsibilities.” [Gundy at 2135
(Gorsuch, J., dissenting) (emphasis added).]

Indeed, this case provides this Court an excellent

opportunity to serve as those “faithful guardians of the
Constitution” by declaring the Department of
Education’s program to be a usurpation of legislative
power, fulfilling the obligation set out by Chief Justice
Marshall “to say what the law is.” Marbury v.
Madison, 5 U.S. 137, 177 (1803).

CONCLUSION

For the foregoing reasons and for the reasons set

out in the briefs for respondents, the lower court
injunctions should be affirmed.

Respectfully submitted,

MICHAEL BOOS WILLIAM J. OLSON*

DANIEL H. JORJANI JEREMIAH L. MORGAN
CITIZENS UNITED ROBERT J. OLSON
1006 Penn. Ave. S.E. WILLIAM J. OLSON, P.C.
Washington, DC 20003 370 Maple Ave. W., Ste. 4
(202) 547-5420 Vienna, VA 22180
RICK BOYER (703) 356-5070
INTEGRITY LAW FIRM [email protected]
P.O. Box 10953 *Counsel of Record
Lynchburg, VA 24506 Attorneys for
February 3, 2023 Amici Curiae