Kagan, J., dissenting
the Secretary’s waiver/modification powers kick in. And the Secretary used them just as described in the hypothetical above. For purposes of the COVID program, he scratched the conditions for loan discharge contained in several provisions. See App. 261–262 (citing §§1087, 1087dd(g); 34 CFR §§682.402, 685.212). He then altered those provisions by specifying different conditions, which opened up loan forgiveness to more borrowers. So he “waive[d]” and “modif[ied]” pre-existing law and, in so doing, applied new “terms and conditions” “in lieu of” the old. §§1098bb(a)(1), (b)(2); see 87 Fed. Reg. 61514. As in the prior hypothetical, then, he used his statutory emergency powers in the manner Congress designed.
How does the majority avoid this conclusion? By picking the statute apart, and addressing each segment of Congress’s authorization as if it had nothing to do with the others. For the first several pages—really, the heart—of its analysis, the majority proceeds as though the statute contains only the word “modify.” See ante, at 13–15. It eventually gets around to the word “waive,” but similarly spends most of its time treating that word alone. See ante, at 15–16. Only when that discussion is over does the majority in-
expresses doubt about that finding, though says that its skepticism plays no role in its decision. See ante, at 18–19, n. 6. Far better if the majority had ruled on that alternative ground. Then, the Court’s invalidation of the Secretary’s plan would not have neutered the statute for all future uses. But in any event, the skepticism is unwarranted. All the majority says to support it is that the current “paus[e]” on “interest accrual and loan repayments” could achieve the same end. Ibid. But the majority gives no reason for concluding that the pause would work just as well to ensure that borrowers are not “placed in a worse position financially in relation to” their loans because of the COVID emergency. §1098bb(a)(2)(A). How could it possibly know? And in any event, the majority’s view of the statute would also make the pause unlawful, as later discussed. See infra, at 21. So the availability of the pause can hardly provide a basis for the majority’s questioning of the Secretary’s finding that cancellation is necessary.
