Page:Department of Education v. Brown.pdf/12

8 Island Institute, 555 U. S. 488, 496–497 (2009).

We emphasized this requirement in Summers, where we were asked to review U. S. Forest Service regulations exempting certain minor land-management decisions from the typical notice-and-comment process. Id., at 490–491. The plaintiffs in that case did not have any “concrete plans to observe nature in [a] specific area” affected by actions the Service took pursuant to this exemption, id., at 497, and we therefore held that they lacked standing, id., at 494–497. As we put it, the “deprivation of a procedural right without some concrete interest that is affected by the deprivation—a procedural right in vacuo—is insufficient to create Article III standing.” Id., at 496.

Before applying this framework, we pause to explain both respondents’ theory of standing and the substance of their claim, which have not always been readily ascertainable—or consistently described—during this litigation.

Upon initial inspection, respondents’ merits theory appears to be in tension with the possibility that the Department could redress their injury. Respondents argue simultaneously (1) that the Department might have treated them more generously if it had solicited their input in developing the Plan and (2) that the Department lacks substantive authority to promulgate broad-based loan forgiveness under the HEROES Act. It would be quite odd for Brown and Taylor to complain about being unable to seek an increase in the scope of an administrative action that they think the Department cannot lawfully take.

Respondents belatedly attempted to address this strange feature of their argument. Their complaint does not say a word about standing. But in their reply supporting their motion in the District Court for an injunction against the Plan, they ventured a brief attempt to explain their position on this threshold issue. They insisted that the Department