Kagan, J., dissenting
are met: The President has declared a national emergency; the Secretary’s proposed relief extends only to “affected individuals”; and the Secretary has deemed the action “necessary to ensure” that the attack does not place those borrowers “in a worse position” to repay their loans. §1098bb(a). And the statutory powers of waiver and modification give the Secretary the means to offer the needed assistance. He can, for purposes of this special loan forgiveness program, scratch the pre-existing conditions for discharge and specify different conditions met by the affected borrowers. That is what the congressionally delegated powers are for. If the Secretary did not use them, Congress would be appalled.
The HEROES Act applies to the COVID loan forgiveness program in just the same way. Of course, Congress did not know COVID was coming; and maybe it wasn’t even thinking about pandemics generally. But that is immaterial, because Congress delegated broadly, for all national emergencies. It is true, too, that the Secretary’s use of the HEROES Act delegation has proved politically controversial, in a way that assistance to terrorism victims presumably would not. But again, that fact is irrelevant to the lawfulness of the program. If the hypothetical plan just discussed is legal, so too is this real one. Once more, the statutory preconditions have been met. The President declared the COVID pandemic a “national emergency.” §1098ee(4); see 87 Fed. Reg. 10289 (2022). The eligible borrowers all fall within the law’s definition of “affected individual[s].” §1098ee(2); see supra, at 15. And the Secretary “deem[ed]” relief “necessary to ensure” that the pandemic did not put low- and middle-income borrowers “in a worse position” to repay their loans. §§1098bb(a)(1)–(2).[1] With those boxes checked,
- ↑ More specifically, the Secretary determined that without a loan discharge, borrowers making less than $125,000 are likely to experience higher delinquency and default rates because of the pandemic’s economic effects. See App. 234–242, 257–259. In a puzzling footnote, the majority
