Page:Biden v. Nebraska.pdf/66

Rh the reader that the statute also contemplates the Secretary’s addition of new terms and conditions. See. But once again the majority treats that authority in isolation, and thus as insignificant. Each aspect of the Secretary’s authority—waiver, modification, replacement—is kept sealed in a vacuum-packed container. The way they connect and reinforce each other is generally ignored. “Divide to conquer” is the watchword. So there cannot possibly emerge “a fair construction of the whole instrument.” McCulloch v. Maryland, 4 Wheat. 316, 406 (1819). The majority fails to read the statutory authorization right because it fails to read it whole. See A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 167–169 (2012) (discussing the importance of the whole-text—here, really, the whole-sentence—canon).

The majority’s cardinal error is reading “modify” as if it were the only word in the statutory delegation. Taken alone, this Court once stated, the word connotes “increment” and means “to change moderately or in minor fashion.” MCI Telecommunications Corp. v. American Telephone & Telegraph Co., 512 U. S. 218, 225 (1994). But no sooner did the Court say that much than it noted the importance of “contextual indications.” Id., at 226; see Scalia & Garner 167 (“Context is a primary determinant of meaning”). And in the HEROES Act, the dominant piece of context is that “modify” does not stand alone. It is one part of a couplet: “waive or modify.” The first verb, as discussed above, means eliminate—usually the most substantial kind of change. See ; accord,. So the question becomes: Would Congress have given the Secretary power to wholly eliminate a requirement, as well as to relax it just a little bit, but nothing in between? The majority says yes. But the answer is no, because Congress would not have written so insane a law. The phrase “waive or modify” instead says to the Secretary: “Feel free to get rid of a requirement or, short of that, to alter it to the extent