Page:Biden v. Nebraska.pdf/23

18 . The dissent accordingly reads the statute as authorizing any degree of change or any new addition, “from modest to substantial”—and nothing in the dissent’s analysis suggests stopping at “substantial.” Because the Secretary “does not have to leave gaping holes” when he waives provisions, the argument runs, it follows that any replacement terms the Secretary uses to fill those holes must be lawful. Ibid. But the Secretary’s ability to add new terms “in lieu of” the old is limited to his authority to “modify” existing law. As with any other modification issued under the Act, no new term or condition reported pursuant to §1098bb(b)(2) may distort the fundamental nature of the provision it alters.

The Secretary’s comprehensive debt cancellation plan cannot fairly be called a waiver—it not only nullifies existing provisions, but augments and expands them dramatically. It cannot be mere modification, because it constitutes “effectively the introduction of a whole new regime.” MCI, 512 U. S., at 234. And it cannot be some combination of the two, because when the Secretary seeks to add to existing law, the fact that he has “waived” certain provisions does not give him a free pass to avoid the limits inherent in the power to “modify.” However broad the meaning of “waive or modify,” that language cannot authorize the kind of exhaustive rewriting of the statute that has taken place here.