SUPREME COURT OF THE UNITED STATES
MERRICK B. GARLAND, ATTORNEY GENERAL, et al., PETITIONERS v.
ESTEBAN ALEMAN GONZALEZ, et al.
MERRICK B. GARLAND, ATTORNEY GENERAL, et al., PETITIONERS v.
EDWIN OMAR FLORES TEJADA, et al.
on writ of certiorari to the united states court of appeals for the ninth circuit
[June 13, 2022]
Justice Sotomayor, with whom Justice Kagan joins, and with whom Justice Breyer joins as to Parts II–A–2, II–B–2, and III, concurring in the judgment in part and dissenting in part.
The Court holds that lower federal courts are powerless to issue classwide injunctive relief against the Executive Branch’s violation of noncitizens’ rights under several provisions of the Immigration and Nationality Act (INA). It reaches this conclusion in a purportedly textualist opinion that, in truth, elevates piecemeal dictionary definitions and policy concerns over plain meaning and context. I respectfully dissent from the Court’s blinkered analysis, which will leave many vulnerable noncitizens unable to protect their rights.[1
Respondents in these two cases are named plaintiffs in two class actions: Esteban Aleman Gonzalez and Jose Eduardo Gutierrez Sanchez in the Aleman Gonzalez
litigation, and Edwin Omar Flores Tejada in the Flores Tejada
litigation. Respondents sought withholding of removal under the INA based on their fear that, if returned to their countries of origin, they would face persecution or torture. See ante,
at 2; Johnson
v. Guzman Chavez
, 594 U. S. ___, ___–___ (2021) (slip op., at 5–7) (explaining “withholding-only proceedings”). The Government detained them pending their proceedings, a detention this Court has held authorized by
8 U. S. C. §1231. See Guzman Chavez
, 594 U. S., at ___ (slip op., at 1).
In both cases, respondents raised statutory and constitutional challenges to their prolonged detention without bond hearings. In both cases, respondents moved to certify classes of similarly situated individuals. In Aleman Gonzalez
, the District Court certified a class of “ ‘all individuals who are detained pursuant to
8 U. S. C. §1231(a)(6) in the Ninth Circuit . . . and who have reached or will reach six months in detention, and have been or will be denied a prolonged detention bond hearing before an Immigration Judge.’ ” Gonzalez
, 325 F.R.D. 616, 621, 626 (ND Cal. 2018). In Flores Tejada
, the District Court certified a class of “ ‘[a]ll individuals who (1) were placed in withholding only proceedings . . . in the Western District of Washington . . . , and (2) have been detained for 180 days (a) without a custody hearing or (b) since receiving a custody hearing.’ ” App. to Pet. for Cert. 149a. By these definitions, the specified classes include only individuals against whom the Government has initiated removal proceedings.
Both District Courts held that §1231(a)(6) did not authorize prolonged detention exceeding six months without bond hearings.[2
] Both District Courts issued classwide injunctive relief (preliminary in Aleman Gonzalez
and permanent in Flores Tejada
) requiring individualized bond hearings. The Ninth Circuit affirmed in relevant part.
When the Government petitioned for certiorari, it challenged only the lower courts’ interpretations of §1231(a)(6) as requiring bond hearings after six months of detention. See Pet. for Cert. I. The Court granted certiorari on the question presented by the Government in these cases and a companion case from the Third Circuit. 594 U. S. ___ (2021); see Johnson
, 596 U. S. ___ (2022). The Court additionally directed the parties in these cases “to brief and argue the following question: Whether, under
8 U. S. C. §1252(f )(1), the courts below had jurisdiction to grant classwide injunctive relief.” 594 U. S. ___. As to that question, the Court now holds that §1252(f )(1) barred the lower courts from granting such relief.
Section 1252(f )(1) sets forth a precise limitation on the lower federal courts’ jurisdiction to enter injunctive relief in cases involving specified sections of the INA. The provision states:
“(f ) Limit on injunctive relief
“(1) In general
“Regardless of the nature of the action or claim or of the identity of the party or parties bringing the action, no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of [§§1221–1232], as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, other than with respect to the application of such provisions to an individual alien against whom proceedings under such part have been initiated.”
Section 1252(f )(1) includes two operative clauses: a primary clause that strips courts of authority “to enjoin or restrain the operation of ” the specified provisions of the INA, and a saving clause that reserves that authority as applied to a noncitizen “against whom proceedings . . . have been initiated.” Properly read, both clauses independently preserve the lower courts’ authority to order classwide injunctive relief compelling the Executive Branch to comply with the INA in these cases. The Court holds otherwise only by disregarding the language Congress used in §1252(f )(1) itself, elsewhere in §1252, and in the INA as a whole.
Section 1252(f )(1)’s primary clause provides that the lower federal courts may not “enjoin or restrain the operation of ” the specified provisions of the INA. An injunction that compels the Executive Branch to comply with the specified provisions (or, phrased differently, prohibits the unlawful implementation of the specified provisions) does not “enjoin or restrain” the “operation” of those provisions.
This is clear as a matter of plain meaning. Starting with the word “operation,” all agree that the ordinary meaning of “operation” is “functioning” or “working.” Ante,
at 5. An injunction requiring the Executive Branch to conform its conduct with a statute or to cease statutorily unauthorized conduct does not enjoin or restrain the “functioning or working” of the statute. That is because unlawful agency action is not a part of the functioning or working of the authorizing statute.
The Government responds that “operation,” as used in §1252(f )(1), is synonymous with “implementation,” which may include either lawful or unlawful implementation. This contention, however, disregards Congress’ careful choice of language. Section 1252(f )(1) says nothing about enjoining or restraining the Executive Branch’s “implementation” of the law. By contrast, in other subsections of §1252 enacted simultaneously with this one, Congress twice expressly limited jurisdiction over challenges to “implementation” of a statute or order or specified a particular forum for judicial review of such challenges. See §1252(a)(2)(A)(i) (restricting jurisdiction to review claims “arising from or relating to the implementation or operation of an order of removal”); §1252(e)(3)(A) (channeling review of the “implementation” of specified provisions into the U. S. District Court for the District of Columbia); see also §1252(a)(2)(A)(iv) (limiting jurisdiction to review “procedures and policies adopted by the Attorney General to implement” a certain provision). As this Court previously explained when interpreting this very statute: “ ‘[W]here Congress includes particular language in one section of a statute but omits it in another section . . . it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.’ ” Nken
556 U.S. 418
, 430 (2009). “This is particularly true here, where [the relevant subsections of §1252] were enacted as part of a unified overhaul of judicial review procedures.” Id.,
In addition to Congress’ deliberate use of “operation,” its use of “enjoin or restrain” in this context is most naturally read to bar only lower court injunctions that stop the operation of a statute, not those that command the Executive Branch to conform its conduct to the statute. It is true that, depending on the context, the word “enjoin” may describe a prohibition (“abstain or desist from . . . some act”) or an affirmative command (“perform . . . some act”). Black’s Law Dictionary 529 (6th ed. 1990); see ante,
at 4. In §1252(f )(1), however, clear textual signals point to the conclusion that “enjoin” refers to a prohibition on the operation of a statute. First, Congress consistently has used the term “enjoin” in Title 8 to refer to prohibitions, including in the immediately neighboring and simultaneously enacted subsection, §1252(f )(2).[3
] “A standard principle of statutory construction provides that identical words and phrases within the same statute should normally be given the same meaning,” Powerex Corp.
v. Reliant Energy Services, Inc.
551 U.S. 224
, 232 (2007), particularly where, as here, “the same term was used in related provisions enacted at the same time,” Return Mail, Inc.
v. Postal Service
, 587 U. S. ___, ___ (2019) (slip op., at 12). Even beyond §1252 itself, every use of “enjoin” in Title 8 refers to prohibitory injunctions.[4
] Moreover, in §1252(f )(1) specifically, “enjoin” is paired with the term “restrain,” which means to “check, hold back, or prevent (a person or thing) from some course of action.” 8 Oxford English Dictionary 756 (2d ed. 1989) (emphasis deleted). “[T]he company [the word] keeps,” Direct Marketing Assn.
575 U.S. 1, 13 (2015), thus cements a prohibitory reading of “enjoin.” Under this reading, lower courts may not prohibit the operation of the specified statutes, but nothing in §1252(f )(1) prevents them from commanding compliance with the statutes or enjoining unauthorized agency action.
Finally, if any ambiguity remains as to the meaning of the primary “enjoin or restrain the operation of ” clause, a longstanding clear-statement principle counsels in favor of preserving the lower courts’ remaining equitable jurisdiction. This Court “ ‘will not construe a statute to displace courts’ traditional equitable authority absent the clearest command.’ ” McQuiggin
569 U.S. 383
, 397 (2013) (quoting Holland
560 U.S. 631
, 646 (2010)); accord, e.g., Porter
v. Warner Holding Co.
328 U.S. 395
, 398 (1946); Brown
, 10 Pet. 497, 503 (1836). There can be no doubt that §1252(f )(1) operates to displace equitable authority to an extent. As explained, however, the most natural and contextual reading of the provision’s primary clause does not limit federal courts’ authority to enjoin or restrain agency action unauthorized by statute, or to compel agency action commanded by a statute. The clause contains nothing approaching the clear command necessary, under centuries of this Court’s precedents, to displace that authority.
Independently of §1252(f )(1)’s primary clause, the provision’s saving clause also operates to preserve the lower federal courts’ equitable authority here. That clause provides that lower courts may enjoin or restrain the operation of the covered statutory provisions “with respect to the application of such provisions to an individual alien against whom proceedings under such part have been initiated.” §1252(f )(1). Each beneficiary of the injunctions in these cases is “an individual alien against whom [removal] proceedings . . . have been initiated.” Ibid.
Under these circumstances,
§1252(f )(1) poses no barrier to classwide injunctive relief.
The Government contends that the phrase “an individual alien” is inconsistent with injunctive relief on a classwide basis. A class action, however, is a collection of individual claims. See, e.g., Califano
442 U.S. 682
, 701 (1979) (“Where the district court has jurisdiction over the claim of each individual member of the class, Rule 23 provides a procedure by which the court may exercise that jurisdiction over the various individual claims in a single proceeding”); Shady Grove Orthopedic Associates, P. A.
v. Allstate Ins. Co.
559 U.S. 393
, 408 (2010) (plurality opinion of Scalia, J.) (“A class action, no less than traditional joinder (of which it is a species), merely enables a federal court to adjudicate claims of multiple parties at once, instead of in separate suits”). Moreover, contextual and historical evidence demonstrates that the enacting Congress would not have prohibited classwide relief simply by using the word “individual.”
It was well understood when Congress enacted §1252(f )(1) in 1996 that mere use of the word “individual” would not preclude classwide adjudication or relief. In Califano
, a unanimous Court interpreted §205(g) of the Social Security Act, codified at
42 U. S. C. §405(g), to permit class actions and classwide relief, even though the statute provided only that “ ‘[a]ny individual’ ” could obtain judicial review. See 442 U. S., at 698–701. The Court rejected the Government’s argument that the word “individual” required “a case-by-case adjudication of claims under §205(g) that is incompatible with class relief.” Id.,
at 698–699. “[C]lass relief is consistent with the need for case-by-case adjudication,” the Court noted, “at least so long as the membership of the class is limited to those who meet the requirements of ” the provision. Id.,
“We normally assume that, when Congress enacts statutes, it is aware of relevant judicial precedent.” Merck & Co.
559 U.S. 633
, 648 (2010). When §1252(f )(1) was enacted in 1996, that precedent included both Califano
and the settled rule, discussed above, that a statute should not be construed to displace a court’s equitable authority absent a clear command. Yet Congress provided no such command against all classwide injunctive relief in §1252(f )(1).
Indeed, in other subsections of §1252, Congress provided precisely such a clear command. Section 1252(e)(1)(B), enacted simultaneously with §1252(f )(1), explicitly divests federal courts of authority to “certify a class under Rule 23 of the Federal Rules of Civil Procedure” in certain cases. The enacting Congress thus knew how to preclude classwide relief and did so in unmistakable terms when that was its intent. In §1252(f )(1), however, it made no mention of class actions or Rule 23. Again, “ ‘it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion’ ” of language, particularly where, as here, it enacted the language as part of a unified whole. Nken
, 556 U. S., at 430.
The Government responds that this reading of §1252(f )(1)’s saving clause renders the word “individual” superfluous. “ ‘[S]ometimes the better overall reading of the statute contains some redundancy,’ ” however, as Congress may “emplo[y] a belt and suspenders approach” to ensure its aims are met. Atlantic Richfield Co.
, 590 U. S. ___, ___, n. 5 (2020) (slip op., at 10, n. 5). Relevant here, parties other than individuals in removal proceedings may bring immigration-related lawsuits. For example, prior to 1996, several organizations brought preenforcement challenges to immigration statutes. See Brief for Respondents 55 (collecting examples). In recent years, States, too, increasingly have sued on behalf of their own interests. See, e.g., Biden
, No. 21–954, now pending before the Court; Department of Homeland Security
v. Regents of Univ. of Cal.
, 591 U. S. ___ (2020); United States
579 U.S. 547 (2016) (per curiam
In drafting §1252(f )(1), Congress had every reason “to be doubly sure,” Barton
, 590 U. S. ___, ___ (2020) (slip op., at 16), that only individuals in removal proceedings and not other entities would receive injunctive relief restraining the operation of the specified provisions of the INA. Additionally, the Government’s redundancy concern is particularly unpersuasive because Congress used the adjective “individual” redundantly in other immigration-related provisions within Title 8. See §1446(a) (authorizing the Attorney General to waive investigation of applicant for naturalization “in an individual case or in such cases or classes of cases as may be designated by him”); §1601(4) (expressing concern that “individual aliens,” prior to 1996, were “burden[ing] the public benefits system”).
In sum, the courts below retained their equitable authority to issue classwide injunctive relief for two independent reasons. First, the relief the District Courts issued did not purport “to enjoin or restrain the operation of ” any statute; rather, the District Courts sought to enforce a statute and enjoin what they deemed to be unlawful agency action. Second, and in any event, the injunctive relief issued below fell within §1252(f )(1)’s saving clause because it concerned only the application of provisions of the INA to individual noncitizens in removal proceedings.
This interpretation is a reasonable one. Congress’ express and particular use of words in §1252(f )(1) protected the specified statutory provisions against restraint by lower court injunctions, but evinced no quarrel with lower courts ensuring that the Executive Branch complied with the commands in those provisions. In addition, Congress ensured that this goal did not come at the expense of violating the rights of noncitizens in removal proceedings.
The Court reaches a contrary result only by prioritizing unavailing and largely atextual concerns.
Starting with the primary “enjoin or restrain the operation of ” clause, the Court accepts the Government’s argument that “the ‘operation of ’ the relevant statutes is best understood to refer to the Government’s efforts to enforce or implement them.” Ante,
at 5. Aside from ignoring Congress’ choice to restrict judicial review of “implementation” in some subsections of §1252 but not others, the Court misapprehends how statutes operate. No doubt, “laws ordinarily ‘work’ or ‘function’ . . . through the actions of officials or other persons who implement them.” Ante,
at 5. That proposition, however, only holds if those individuals properly implement the relevant statute. An unlawful implementation of a statute is not the “work[ing]” or “function[ing]” of the statute at all; it is simply unauthorized. Restraining such action does not interfere with the operation of the statute for purposes of §1252(f )(1).
Resisting this result, the Court offers a string cite of several inapt uses of “operation,” none of which concern the operation of legal authority. See ante,
at 7–8. The Court wonders why, “[i]f cars, trucks, railroads, water utilities, drainage ditches, auto dealerships, planes, radios, video poker machines, cable TV systems, and many other things can be unlawfully or improperly operated, . . . the same cannot be said of a statute.” Ante,
at 8. The answer is obvious: Unlike all of those examples, a statute is the law. Officials may implement a statute unlawfully, but a statute does not operate
in conflict with itself.[5
The Court also agrees with the Government that “enjoin,” as used in §1252(f )(1), necessarily takes on both affirmative and negative connotations, but only by rigidly segmenting each word in the clause, defining each in isolation, and adding those definitions together. See ante,
at 4. Elsewhere, however, this Court has cautioned against such a piecemeal approach to statutory interpretation. Cf., e.g., FCC
v. AT&T Inc.
562 U.S. 397
, 406 (2011) (cautioning that “two words together may assume a more particular meaning than those words in isolation”). Moreover, the Court pays no mind to Congress’ other uses of “enjoin” in §1252 and elsewhere in Title 8 as meaning banning or stopping.
The Court offers one final purportedly textual basis for its strained reading of the primary clause: that it is the only option consistent with §1252(f )(1)’s prefatory clause. See ante,
at 8–9; §1252(f )(1) (“Regardless of the nature of the action or claim . . . ”). The prefatory clause, however, does not purport to expand the scope of §1252(f )(1)’s restriction; it simply makes clear that the restriction must apply to all claims that would otherwise fall within it, without exception. See Atlantic Richfield Co.
, 590 U. S., at ___, n. 5 (slip op., at 10, n. 5) (reasoning similarly as to phrase “ ‘without regard to the citizenship of the parties or the amount in controversy’ ”).
The Court closes with two policy arguments. It deems it “most unlikely” that Congress would enact a statute that disproportionately limits lower courts’ authority to issue injunctive relief to remedy constitutional claims, a result it contends would flow from respondents’ reading. Ante,
at 9. This is in large part a problem of the Court’s own making. As explained, a proper interpretation of §1252(f )(1)’s saving clause preserves lower courts’ authority to issue injunctive relief on constitutional claims, including on a classwide basis, so long as all plaintiffs are individuals against whom removal proceedings have been initiated. Moreover, even in preenforcement challenges brought by entities or by individuals not in removal proceedings, respondents’ reading of §1252(f )(1) does not prohibit injunctive relief exclusively as to constitutional claims, but also as to claims that arise from any statutes external to the covered INA provisions (for example, a claim that a covered provision violates the Religious Freedom Restoration Act (RFRA)). See ante,
at 9, n. 4. The correct reading of §1252(f )(1) evenhandedly protects the specified INA provisions from all such external, preenforcement, lower court injunctions, whether on statutory or constitutional grounds, without shielding unlawful agency action inconsistent with the specified provisions. Whatever the Court may think of the wisdom of that policy, it is a perfectly plausible one.
The Court also worries that under this reading of §1252(f )(1), the inquiry as to whether injunctive relief is available may overlap with the merits of a claim that a covered provision has been violated. Ante,
at 9–10. The Court is wrong to find “anything unusual about that consequence.” Wal-Mart Stores, Inc.
564 U.S. 338
, 351 (2011). Even as to the question of subject-matter jurisdiction (as opposed to the remedial authority at issue here), “[t]he necessity of touching aspects of the merits . . . is a familiar feature of litigation.” Id.,
at 351–352; accord, e.g., Perry
v. Merit Systems Protection Bd.
, 582 U. S. ___, ___ (2017) (slip op., at 14) (“[T]he distinction between jurisdictional and merits issues is not inevitably sharp, for the two inquiries may overlap”). Any overlap may be substantial: Under the Federal Tort Claims Act, for instance, “all elements of a meritorious claim are also jurisdictional.” Brownback
, 592 U. S. ___, ___ (2021) (slip op., at 8).[6
] This concern, too, offers no justification for the Court’s departure from ordinary meaning or its disregard of clear contextual evidence contrary to its view.
The Court’s arguments in support of its reading of the saving clause fare little better. The Court opens with language from past cases suggesting support for its interpretation. See ante,
at 5–6. None of the cases the Court quotes, however, presented or decided the scope of §1252(f )(1)’s bar on injunctive relief.
The Court next affords dispositive weight to its class- exclusive view of the word “individual” in §1252(f )(1). See ante,
at 6. The Court distinguishes Califano
in a footnote, asserting that §1252(f)(1)’s saving clause should be construed narrowly because it is an exception to the primary clause. See ante,
at 11, n. 6. The point, however, is not that the statute interpreted in Califano
was identical to §1252(f)(1), but that Califano
established that a statute’s mere use of the word “individual” does not suffice to preclude classwide relief. Moreover, the Court overlooks that it is §1252(f)(1)’s primary clause (which divests lower courts of their “ ‘traditional equitable authority’ ”) that constitutes an exception to the norm. McQuiggin
, 569 U. S., at 397. The Court ignores the clear-statement rule for such displacements of courts’ equitable jurisdiction. Califano
and the clear-statement rule both instruct that Congress would not have done so much so obliquely, particularly when it clearly prohibited class relief in another subsection of the same statute.
On the question of Congress’ disparate inclusion and exclusion of language in §1252 referring to class actions, the Court declines to decide what it thinks. Taking one path, it suggests that one should not “give much weight to this negative inference.” Ante,
at 10. But see Nken
, 556 U. S., at 430–431 (giving weight to equivalent inference when interpreting same statute). Taking another, the Court admits that adhering to its holding might well “rule out efforts to obtain any injunctive relief that applies to multiple named plaintiffs (or perhaps even rule out injunctive relief in a lawsuit brought by multiple named plaintiffs).” Ante,
at 11. That result, which would require separate remedial orders or even separate lawsuits for family members asserting legally and factually identical claims based on joint immigration applications or proceedings, is absurd. There is no conceivable benefit in requiring identical claims to be raised in separate, duplicative actions. This bizarre outcome offers further proof that the Court has erred.
The ramifications of the Court’s errors should not be ignored. Today’s holding risks depriving many vulnerable noncitizens of any meaningful opportunity to protect their rights.
To understand why, consider the practical realities of the removal and detention system. Noncitizens subjected to removal proceedings are disproportionately unlikely to be familiar with the U. S. legal system or fluent in the English language. Even so, these individuals must navigate the Nation’s labyrinthine immigration laws without entitlement to appointed counsel or legal support. If they are detained, like respondents here, they face particularly daunting hurdles. On average, immigration detention facilities are located significantly farther away from detained individuals’ communities and court proceedings than criminal jails, making it extraordinarily difficult to secure legal representation. Even for those individuals who can locate and afford counsel under these circumstances, such remote confinement impedes evidence gathering and communication with counsel. After traveling (perhaps for hours) to meet with detained clients, attorneys may be barred from doing so due to logistical or administrative errors; legal phone calls, too, frequently are nonconfidential, prohibitively costly, or otherwise unavailable. Exacerbating these challenges, the Government regularly transfers detained noncitizens between facilities, often multiple times.[7
It is one matter to expect noncitizens facing these obstacles to defend against their removal in immigration court. It is another entirely to place upon each of them the added burden of contesting systemic violations of their rights through discrete, collateral, federal-court proceedings. In a great many cases, the inevitable consequence of barring classwide injunctive relief will be that those violations will go unremedied, except as to the few fortunate enough to afford competent collateral counsel or to secure vigorous pro bono
representation. The burdens will fall on those least able to vindicate their rights, as well as the law firms and nonprofit organizations that will endeavor to assist as many of these noncitizens as their capacity permits.[8
If, somehow, a substantial number of noncitizens are able to overcome these obstacles and file separate federal lawsuits against unlawful removal or detention policies, a different problem will arise. Class litigation not only enables individual class members to enforce their rights against powerful actors, but also advances judicial economy by eliminating the need for duplicative proceedings pertaining to each class member. In contrast, the Court’s overbroad reading of §1252(f )(1) forces noncitizens facing unlawful detention, if they are able, “to flood district court dockets with individual habeas actions raising materially indistinguishable claims and requesting materially indistinguishable injunctive relief.” Brief for Retired Federal Judges as Amici Curiae
15. There is no reason to think Congress intended either of these untenable results.
In fairness, the Court’s decision is not without limits. For instance, the Court does not purport to hold that §1252(f )(1) affects courts’ ability to “hold unlawful and set aside agency action, findings, and conclusions” under the Administrative Procedure Act.
5 U. S. C. §706(2). No such claim is raised here. In addition, the Court rightly does not embrace the Government’s eleventh-hour suggestion at oral argument to hold that §1252(f )(1) bars even classwide declaratory relief,[9
] a suggestion that would (if accepted) leave many noncitizens with no practical remedy whatsoever against clear violations by the Executive Branch.
Even with these limits, however, the repercussions of today’s decision will be grave. In view of the text and context of §1252(f )(1), these repercussions offer yet more evidence that the Court’s interpretive effort has gone badly astray.
* * *
The essence of statutory interpretation is to review the plain meaning of a provision in its context. The Court’s analysis, by violating several interpretive principles, ultimately fails in that endeavor. I respectfully dissent.