Page:Biden v. Nebraska.pdf/68

Rh of” language is a “wafer-thin reed” for the Secretary to rely on because it appears in a “humdrum reporting requirement.” But the adjectives are by far the best part of that response. It is perfectly true that the language instructs the Secretary to “include” his new “terms and conditions” when he provides notice of his “waivers or modifications.” §1098bb(b)(2). But that is because the statute contemplates that there will be new terms and conditions to report. In other words, the statute proceeds on the premise that the usual waiver or modification will, contra the majority, involve adding “new substantive” provisions. The humdrum reporting requirement thus confirms the expansive extent of the Secretary’s waiver/modification authority.

The majority’s opposing construction makes the Act inconsequential. The Secretary emerges with no ability to respond to large-scale emergencies in commensurate ways. The creation of any “novel and fundamentally different loan forgiveness program” is off the table. So, for example, the Secretary could not cancel student loans held by victims of the hypothetical terrorist attack described above. See. That too would involve “the introduction of a whole new regime” by way of “draft[ing] new substantive” conditions for discharging loans. And under the majority’s analysis, new loan forbearance policies are similarly out of bounds. When COVID struck, Secretary DeVos immediately suspended loan repayments and interest accrual for all federally held student loans. See. The majority claims it is not deciding whether that action was lawful. Which is all well and good, except that under the majority’s reasoning, how could it not be? The suspension too offered a significant new benefit, and to an even greater number of borrowers. (Indeed, for many borrowers, it was worth much more than the current plan’s $10,000 discharge.) So the