Page:Biden v. Nebraska.pdf/4

4 obligation to report any waivers and modifications he has made. 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.

This case implicates many of the factors present in past cases raising similar separation of powers concerns. The Secretary has never previously claimed powers of this magnitude under the HEROES Act; “[n]o regulation premised on” the HEROES Act “has even begun to approach the size or scope” of the Secretary’s program. Alabama Assn. of Realtors v. Department of Health and Human Servs., 594 U. S. ___, ___ (per curiam). The “ ‘economic and political significance’ ” of the Secretary’s action is staggering. West Virginia, 597 U. S., at ___ (quoting Brown & Williamson, 529 U. S., at 160). And the Secretary’s assertion of administrative authority has “conveniently enabled [him] to enact a program” that Congress has chosen not to enact itself. West Virginia, 597 U. S., at ___. The Secretary argues that the principles explained in West Virginia and its predecessors should not apply to cases involving government benefits. But major questions cases “have arisen from all corners of the administrative state,” id., at ___, and this is not the first such case to arise in the context of government benefits. See King