Page:Biden v. Nebraska.pdf/21

16 Act establishes an obligation on the part of student borrowers to pay back the Government. So as the Government concedes, “waiver”—as used in the HEROES Act—cannot refer to “waiv[ing] loan balances” or “waiving the obligation to repay” on the part of a borrower. Tr. of Oral Arg. 9, 64. Contrast 20 U. S. C. §1091b(b)(2)(D) (allowing the Secretary to “waive the amounts that students are required to return” in specified circumstances of overpayment by the Government). Because the Secretary cannot waive a particular provision or provisions to achieve the desired result, he is forced to take a more circuitous approach, one that avoids any need to show compliance with the statutory limitation on his authority. He simply “waiv[es] the elements of the discharge and cancellation provisions that are inapplicable in this [debt cancellation] program that would limit eligibility to other contexts.” Tr. of Oral Arg. 64–65.

Yet even that expansive conception of waiver cannot justify the Secretary’s plan, which does far more than relax existing legal requirements. The plan specifies particular sums to be forgiven and income-based eligibility requirements. The addition of these new and substantially different provisions cannot be said to be a “waiver” of the old in any meaningful sense. Recognizing this, the Secretary acknowledges that waiver alone is not enough; after waiving whatever “inapplicable” law would bar his debt cancellation plan, he says, he then “modif[ied] the provisions to bring [them] in line with this program.” Id., at 65. So in the end, the Secretary’s plan relies on modifications all the way down. And as we have explained, the word “modify” simply cannot bear that load.

The Secretary and the dissent go on to argue that the power to “waive or modify” is greater than the sum of its