Kagan, J., dissenting
goalposts for triggering the major-questions doctrine. Who knows—by next year, the Secretary of Health and Human Services may be found unable to implement the Medicare program under a broad delegation because of his actions’ (enormous) “economic impact.” Ante, at 21.
To justify this use of its heightened-specificity requirement, the majority relies largely on history: “[P]ast waivers and modifications,” the majority argues, “have been extremely modest.” Ante, at 20. But first, it depends what you think is “past.” One prior action, nowhere counted by the majority, is the suspension of loan payments and interest accrual begun in COVID’s first days. That action cost the Federal Government over $100 billion, and benefited many more borrowers than the forgiveness plan at issue. See supra, at 21. And second, it’s all relative. Past actions were more modest because the precipitating emergencies were more modest. (The COVID emergency generated, all told, over $5 trillion in Government relief spending.) In providing more significant relief for a more significant emergency—or call it unprecedented relief for an unprecedented emergency—the Secretary did what the HEROES Act contemplates. Imagine asking the enacting Congress: Can the Secretary use his powers to give borrowers more
Barrett’s views on properly contextual interpretation of delegation provisions. See West Virginia, 597 U. S., at ___–___ (dissenting opinion) (slip op., at 14–19). But then consider two of the contextual factors Justice Barrett views as “telltale sign[s]” of whether an agency has exceeded the scope of a delegation. Ante, at 12. First, she asks, is there a “mismatch[]” between a “backwater provision” or “subtle device” and an agency’s exercise of power? Ibid. And second, is the agency official operating within or “outside [his] wheelhouse”? Ante, at 12–13. Here, for the reasons stated above, there is no mismatch: The broadly worded “waive or modify” delegation IS the HEROES Act, not some tucked away ancillary provision. And as Justice Barrett agrees, “this is not a case where the agency is operating entirely outside its usual domain.” Ante, at 15. So I could practically rest my case on Justice Barrett’s reasoning.
