Page:Department of Education v. Brown.pdf/13

Rh cannot adopt the Plan under the HEROES Act regardless of the procedures it follows. Reply in No. 4:22–cv–908 (ND Tex., Oct. 20, 2022), ECF Doc. 26, pp. 3–4. But they observed that the Department has claimed it also has authority to forgive loans under a different statute, the Higher Education Act of 1965 (HEA), which authorizes the Secretary to “compromise, waive, or release any right, title, claim, lien, or demand.” 20 U. S. C. §1082(a)(6). Thus, respondents argued, there is a chance that vacating the Plan would prompt the Department to pursue loan relief under the HEA instead. In this Court, Brown and Taylor discuss the HEA at length for the first time in this litigation. See Brief for Respondents 28–32.

Having recounted this history, we now understand respondents’ claim and theory of standing as follows. First, because the HEROES Act does not substantively authorize the Plan, the Department was obligated to follow the typical negotiated-rulemaking and notice-and-comment requirements. Second, if the Department had observed those procedures, respondents might have used those opportunities to convince the Department (1) that proceeding under the HEROES Act is unlawful or otherwise undesirable, and (2) that it should adopt a different loan-forgiveness plan under the HEA instead, one that is more generous to them than the HEROES Act plan that they allege is unlawful. They assert there is at least a chance that this series of events will come to pass now if we vacate the Plan. Id., at 19.

Describing respondents’ claim illustrates how unusual it is. They claim they are injured because the Government has not adopted a lawful benefits program under which they would qualify for assistance. But the same could be said of anyone who might benefit from a benefits program that the Government has not chosen to adopt. It is difficult