Page:Biden v. Nebraska.pdf/67

20 you think appropriate.” Otherwise said, the phrase extends from minor changes all the way up to major ones.

The majority fares no better in claiming that the phrase “waive or modify” somehow limits the Secretary’s ability “to add to existing law.” (emphasis in original). The majority’s explanation of that idea oscillates a fair bit. At times the majority tries to convey that “additions” as a class are somehow suspect. See (looking askance at “add[ing] new terms,” “adding back in,” “filling the empty space,” “augment[ing],” and “draft[ing] new” language). But that is mistaken. Change often (usually?) involves or necessitates replacements. So when the Secretary uses his statutory power to remove some conditions on loan cancellation, he can under that same power replace them with others. The majority itself must ultimately concede that point. See,. So it falls back on arguing that the “additions” allowed cannot be “substantial[]” because the statute uses the word “modify.” ; see. But that just doubles down on the majority’s most basic error: extracting “modify” from the “waive or modify” phrase in order to confine the Secretary to making minor changes. As just shown, the phrase as a whole says the opposite—tells the Secretary that he can make changes along a spectrum, from modest to substantial. See. And so he can make additions along that spectrum as well. In particular, if he entirely removes existing conditions on loan discharge, he can substitute new ones; he does not have to leave gaping holes.

Indeed, other language in the statute makes that substitution authority perfectly clear. As noted earlier, the statute refers expressly to “the terms and conditions to be applied in lieu of such [modified or waived] statutory and regulatory provisions.” §1098bb(b)(2); see. In other words, the statute expects the Secretary’s waivers and modifications to involve replacing the usual provisions with different ones. The majority rejoins that the “in lieu