In her concurring opinion, Justice Amy Coney Barrett stated that she agreed with the majority’s holding, but wrote separately to address the major questions doctrine. She noted that ordinary tools of statutory interpretation were all that was needed for the Court to reach its conclusion, but that the major questions doctrine reinforces it.  

Barrett began by acknowledging that the major questions doctrine may seem inconsistent with textualism if it’s viewed as a “substantive canon, or a rule that overrules the most natural reading of a text to internalize a specific policy value. However, she argued that the doctrine is actually an interpretive tool used to determine the text’s most natural meaning by emphasizing the importance of context. 

Barrett argued that the major question doctrine reflects common sense regarding how Congress delegates authority, and used two analogies to explain why a broad, open-ended instruction should not always be read to its literal limit. In the first example, she explained that if a grocer tells a clerk to “go to the orchard and buy apples,” the clerk understands based on context from their past dealings and the size of the store that they shouldn't buy 1,000 apples if the store usually only stocks 200. In the second, she explained that if a parent tells a babysitter to “make sure the kids have fun” and hands over a credit card, it’s unreasonable for the babysitter to take the children on an overnight trip to an out-of-town amusement park. A reasonable person understands that a general instruction for “fun” covers local trips like ice cream or a movie, not massive excursions. 

Barrett then connected these analogies to the relationship between Congress and executive agencies. Barrett explained that just as a parent would be expected to speak clearly if they intended to authorize a major trip, a “reasonably informed interpreter” expects Congress to speak clearly if it intends to assign decisions of vast “economic and political significance” to an agency. She argued that Congress normally intends to make major policy decisions itself and leaves only small details for agencies to handle during daily administration. Furthermore, because Article I vests “all legislative Powers” in Congress, it’s contextually more likely that Congress would make “big-time policy calls” itself rather than “pawning them off to another branch.” 

Barrett concluded that the student loan forgiveness plan went far “beyond what Congress could reasonably be understood to have granted” in the HEROES Act. By applying the major questions doctrine as a tool of contextual interpretation, Barrett argued that the Court isn’t acting as a “policy arbiter,” but rather giving Congress’ words their best and most natural reading within a system of separated powers. 

In her dissenting opinion, Justice Elena Kagan began by examining the plain text of the HEROES Act and argued that the Secretary of Education acted well within the broad authority granted by Congress to “waive or modify any statutory or regulatory provision” during a national emergency. Kagan criticized the majority for focusing almost exclusively on the word “modify,” which typically implies minor changes, arguing that it must be read alongside “waive,” which means to eliminate entirely. Kagan argued that if the Secretary has the power to eliminate a requirement (waive) or change it slightly (modify), then he surely has the power to do anything in between. Kagan stated that to suggest otherwise would make for an “insane” and “inconsequential” law that prevents the Secretary from responding to large-scale emergencies. 

Kagan emphasized that the HEROES Act was specifically designed to handle national emergencies which are, by definition, major in scope and unpredictable. She pointed out that the goal of the HEROES Actw as to ensure that borrowers are not placed in a “worse position financially” because of a crisis, so by providing the Secretary with discretionary authority to apply new terms and conditions in lieu of old ones, Congress intended for the Executive to have the flexibility to offer meaningful relief, such as the student loan forgiveness plan. 

Kagan strongly criticized the Court’s use of the major questions doctrine to strike down the plan, arguing that it has become a way for the Court to “negate broad delegations Congress has approved” simply because the Court finds the regulatory impact too significant. Kagan noted that Congress delegates broadly because agencies have expertise Congress lacks, and they can respond more quickly to changing circumstances. By requiring "heightened-specificity," the Court is making it nearly impossible for Congress to ensure adequate responses to unforeseen events. 

Kagan concluded by warning that the majority’s decision was a threat to both the separation of powers and democratic order. She pointed out that the Secretary and the President are politically accountable to the voters for the success or failure of their policies, but the members of the Court are “detached from the body politic.” She stated that by refusing to respect the full scope of the delegation made by Congress, Court had transformed itself into the “arbiter—indeed, the maker—of national policy.”