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SUPREME COURT OF THE UNITED STATES
_________________
No. 21–954
_________________
JOSEPH R. BIDEN, JR., PRESIDENT OF THE UNITED STATES,
et al., PETITIONERS
v. TEXAS,
et al.
on writ of certiorari to the united states court of appeals for
the fifth circuit
[June 30, 2022]
Chief Justice Roberts delivered the opinion of the Court.
In January 2019, the Department of Homeland
Security—under the administration of President
Trump—established the Migrant Protection
Protocols. That program provided for the return to Mexico of
non-Mexican aliens who had been detained attempting to enter the
United States illegally from Mexico. On Inauguration Day 2021, the
new administration of President Biden announced that the program
would be suspended the next day, and later that year sought to
terminate it. The District Court and the Court of Appeals, however,
held that doing so would violate the Immigration and Nationality
Act, concluding that the return policy was mandatory so long as
illegal entrants were being released into the United States. The
District Court also held that the attempted rescission of the
program was inadequately explained in violation of the
Administrative Procedure Act. While its appeal was pending, the
Government took new action to terminate the policy with a more
detailed explanation. But the Court of Appeals held that this new
action was not separately reviewable final agency action under the
Administrative Procedure Act.
The questions presented are whether the
Government’s rescission of the Migrant
Protection Protocols violated the Immigration and Nationality Act
and whether the Government’s second termination
of the policy was a valid final agency action.
I
A
On December 20, 2018, then-Secretary of Homeland Security
Kirstjen Nielsen announced a new program called Remain in Mexico,
also known as the Migrant Protection Protocols (MPP). MPP was
created in response to an immigration surge at the
country’s southern border, and a resulting
“humanitarian and border security
crisis†in which federal immigration officials were
encountering approximately 2,000 inadmissible aliens each day. 554
F. Supp. 3d 818, 831 (ND Tex. 2021). MPP provided that
certain non-Mexican nationals arriving by land from Mexico would be
returned to Mexico to await the results of their removal
proceedings under8 U. S. C.
§1229a. On the same day that Secretary Nielsen
announced the program, the Government of Mexico agreed that it
would cooperate in administering it, on a temporary basis.
MPP was implemented pursuant to express congressional
authorization in the Immigration and Nationality Act (INA), which
provides that “[i]n the case of an alien
. . . who is arriving on land (whether or
not at a designated port of arrival) from a foreign territory
contiguous to the United States, the Attorney General may return
the alien to that territory pending a proceeding under section
1229a of this title.â€66Stat.163, as added and amended,8
U. S. C.
§1225(b)(2)(C).[
1] Prior to the
initiation of MPP, the Department of Homeland Security (DHS) and
its predecessor agency had “primarily used
[§1225(b)(2)(C)] on an ad-hoc basis to return certain
Mexican and Canadian nationals†arriving at ports of
entry. App. to Pet. for Cert. 273a, n. 12.
A separate provision of the same section of the INA states that
if “an alien seeking admission is not clearly
and beyond a doubt entitled to be admitted, the alien shall be
detained for a proceeding under section 1229a of this
title.†§1225(b)(2)(A). Due to consistent
and significant funding shortfalls, however, DHS has never had
“sufficient detention capacity to maintain in
custody every single person described in section 1225.â€
Id., at 323a. In light of that fact, the Trump
administration chose to implement MPP in part so that
“[c]ertain aliens attempting to enter the
U. S. illegally or without documentation, including
those who claim asylum, will no longer be released into the
country, where they often fail to file an asylum application and/or
disappear before an immigration judge can determine the merits of
any claim.†554 F. Supp. 3d, at 832.
In January 2019, DHS began implementing MPP, initially in San
Diego, California, then in El Paso, Texas, and Calexico,
California, and then nationwide. By December 31, 2020, DHS had
enrolled 68,039 aliens in the program.
Following the change in Presidential administrations, however,
the Biden administration sought to terminate the program. On
January 20, 2021, the Acting Secretary of Homeland Security wrote
that “[e]ffective January 21, 2021, the
Department will suspend new enrollments in [MPP] pending further
review of the program. Aliens who are not already enrolled in MPP
should be processed under other existing legal
authorities.â€
Id., at 836. President Biden also
issued Executive Order No. 14010, which directed the new Secretary
of Homeland Security, Alejandro N. Mayorkas, to
“promptly review and determine whether to
terminate or modify the [MPP] program.†86 Fed. Reg.
8269 (2021).
On June 1, 2021, Secretary Mayorkas issued a memorandum
officially terminating MPP (the June 1 Memorandum). In that
memorandum, the Secretary noted his determination
“that MPP [d]oes not adequately or sustainably
enhance border management in such a way as to justify the
program’s extensive operational burdens and
other shortfalls.†App. to Pet. for Cert. 351a. He also
emphasized that, since its inception, MPP had
“played an outsized role in
[DHS’s] engagement with the Government of
Mexico,†given the “significant
attention that it draws away from other elements that necessarily
must be more central to the bilateral relationship.â€
Id., at 357a. For those and other reasons, the Secretary
announced that he was “by this memorandum
terminating the MPP program,†and
“direct[ed] DHS personnel to take all
appropriate actions to terminate MPP, including taking all steps
necessary to rescind implementing guidance and other directives or
policy guidance issued to implement the program.â€
Id., at 348a–349a.
B
On April 13, 2021, the States of Texas and Missouri
(respondents) initiated this lawsuit in the Northern District of
Texas against Secretary Mayorkas and others.
Respondents’ initial complaint challenged the
Acting Secretary’s January 20 suspension of new
enrollments in MPP, but following the June 1 Memorandum, they
amended their complaint to challenge the
Secretary’s June 1 rescission of the entire
program. The amended complaint asserted that the June 1 Memorandum
violated the INA and the Administrative Procedure Act (APA),5
U. S. C. §701
et seq., and sought preliminary and permanent
injunctive relief, declaratory relief, and vacatur of the
rescission pursuant to the APA.
The District Court conducted a one-day bench trial and entered
judgment for respondents. The court first concluded that
terminating MPP would violate the INA. It reasoned that section
1225 of the INA “provides the government two
optionsâ€: mandatory detention pursuant to section
1225(b)(2)(A) or contiguous-territory return pursuant to section
1225(b)(2)(C). 554 F. Supp. 3d, at 852. Because the
Government was unable to meet its detention obligations under
section 1225(b)(2)(A) due to resource constraints, the court
concluded, “terminating MPP necessarily leads to
the systemic violation of Section 1225 as aliens are released into
the United States.â€
Ibid. Second, the District
Court found that the agency failed to engage in reasoned
decisionmaking and therefore acted arbitrarily and capriciously in
violation of the APA.
Id., at
847–851.
Based on these conclusions, the District Court
“vacated [the June 1 Memorandum] in its entirety
and remanded to DHS for further consideration.â€
Id., at 857 (boldface and capitalization omitted). And it
imposed a nationwide injunction ordering the Government to
“enforce and implement MPP
in good faith
until such a time as it has been lawfully rescinded in compliance
with the APA
and until such a time as the federal government
has sufficient detention capacity to detain all aliens subject to
mandatory detention under [section 1225] without releasing any
aliens
because of a lack of detention
resources.â€
Ibid. (emphasis in original).
The Government appealed and sought a stay of the injunction,
which the District Court and the Court of Appeals each denied. The
Government then applied to this Court for a stay. The Court denied
the application, finding that the Government
“had failed to show a likelihood of success on
the claim that the [June 1 Memorandum] was not arbitrary and
capricious.†594 U. S. ___ (2021). The
Court did not address the District Court’s
interpretation of the INA.
The parties proceeded to briefing in the Court of Appeals. While
the Government’s appeal was pending, however,
Secretary Mayorkas “considered anew whether to
maintain, terminate, or modify MPP in various ways.â€
App. to Pet. for Cert. 286a. On September 29, 2021, the Secretary
publicly announced his “inten[tion] to issue in
the coming weeks a new memorandum terminating [MPP].â€
20 F. 4th 928, 954 (CA5 2021). The Government then moved to hold
the appeal in abeyance pending the Secretary’s
formal decision, but the Court of Appeals denied the motion.
On October 29, the Secretary released a four-page memorandum
that again announced the termination of MPP, along with a 39-page
addendum explaining his reasons for doing so (the October 29
Memoranda). As the Secretary explained, this new assessment of MPP
“examined considerations that the District Court
determined were insufficiently addressed in the June 1 memo,
including claims that MPP discouraged unlawful border crossings,
decreased the filing of non-meritorious asylum claims, and
facilitated more timely relief for asylum seekers, as well as
predictions that termination of MPP would lead to a border surge,
cause [DHS] to fail to comply with alleged detention obligations
under the [INA], impose undue costs on states, and put a strain on
U. S.-Mexico relations.†App. to Pet. for
Cert. 259a–260a.
The Secretary acknowledged what he called
“the strongest argument in favor of retaining
MPP: namely, the significant decrease in border encounters
following the determination to implement MPP across the southern
border.â€
Id., at 261a. But he nonetheless
concluded that the program’s
“benefits do not justify the costs, particularly
given the way in which MPP detracts from other regional and
domestic goals, foreign-policy objectives, and domestic policy
initiatives that better align with this
Administration’s values.â€
Ibid. Finally, the Secretary once again noted that
“[e]fforts to implement MPP have played a
particularly outsized role in diplomatic engagements with Mexico,
diverting attention from more productive efforts to fight
transnational criminal and smuggling networks and address the root
causes of migration.â€
Id., at 262a.
In light of those conclusions, the Secretary announced that he
was once again “hereby terminating
MPP.â€
Id., at 263a. He explained that DHS would
“continue complying with the [District
Court’s] injunction requiring good-faith
implementation and enforcement of MPP.â€
Id., at
264a. But he noted that “the termination of
MPP†would be “implemented as soon
as practicable after a final judicial decision to
vacate†that injunction.
Ibid. The Government
then moved to vacate the injunction on the ground that the October
29 Memoranda had superseded the June 1 Memorandum, but the Court of
Appeals denied the motion.
The Court of Appeals instead affirmed the District
Court’s judgment in full. With respect to the
INA question, the Court of Appeals agreed with the District
Court’s analysis of the relevant provisions.
That is, the court explained, section 1225(b)(2)(A)
“sets forth a general, plainly obligatory rule:
detention for aliens seeking admission,†while section
1225(b)(2)(C) “authorizes contiguous-territory
return as an alternative.†20 F. 4th, at 996.
Accordingly, the Court of Appeals reasoned, “DHS
is violating (A)’s mandate, refusing to avail
itself of (C)’s authorized alternative, and then
complaining that it doesn’t like its
options.â€
Ibid., n. 18.
The Court of Appeals also held that “[t]he
October 29 Memoranda did not constitute a new and separately
reviewable ‘final agency
action.’ â€
Id.,
at 951. The Court of Appeals distinguished
“DHS’s June 1 decision to
terminate MPP,†which it claimed
“had legal effect,†from the June 1
Memorandum, the October 29 Memoranda, and “any
other subsequent memos,†which it held
“simply
explained
DHS’s decision.â€
Ibid. The
Court of Appeals then criticized the Government for proceeding
“without a hint of an intention to put the
Termination Decision back on the chopping block and rethink
things,†and for ultimately “just
further defend[ing] what it had previously decided.â€
Id., at 955. And the Court of Appeals drew a dichotomy
between taking new agency action and appealing an adverse decision,
asserting that “DHS chose not to take a new
agency action†but “instead chose to
notice an appeal and defend its Termination Decision in our
court.â€
Id., at 941.
We granted certiorari, 595 U. S. ___ (2022), and
expedited consideration of this appeal at the
Government’s request.
II
We begin with jurisdiction. The Government contends that the
injunction the District Court entered was barred by8
U. S. C.
§1252(f )(1). That provision reads as
follows:
“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 [8
U. S. C.
§§1221–1232], other than
with respect to the application of such provisions to an individual
alien against whom proceedings under [those provisions] have been
initiated.â€
As we recently held in
Garland v.
Aleman Gonzalez,
596 U. S. ___ (2022), section 1252(f )(1)
“generally prohibits lower courts from entering
injunctions that order federal officials to take or to refrain from
taking actions to enforce, implement, or otherwise carry out the
specified statutory provisions.â€
Id., at ___
(slip op., at 5). The District Court’s
injunction in this case violated that provision. But that fact
simply presents us with the following question: whether section
1252(f )(1) deprives
this Court of jurisdiction
to reach the merits of an appeal, where the lower court entered a
form of relief barred by that provision. See
Steel Co. v.
Citizens for Better Environment,
523 U.S.
83, 95 (1998) (“Every federal appellate
court has an obligation to satisfy itself not only of its own
jurisdiction, but also that of the lower courts in a cause under
review, even though the parties are prepared to concede
it.†(internal quotation marks and alterations
omitted)).
Absent section 1252(f )(1), the District Court
clearly had federal question jurisdiction over
respondents’ suit, which asserted claims arising
under two federal statutes, the INA and the APA. See28
U. S. C. §1331
(“The district courts shall have original
jurisdiction of all civil actions arising under the Constitution,
laws, or treaties of the United States.â€). The
question, then, is whether section 1252(f )(1) strips
the lower courts of subject matter jurisdiction over these claims.
The parties agree that the answer to that question is no, and so do
we. That is because section 1252(f )(1) withdraws a
district court’s
“jurisdiction or authority†to grant
a particular form of relief. It does not deprive the lower courts
of all subject matter jurisdiction over claims brought under
sections 1221 through 1232 of the INA.
The text of the provision makes that clear. Section
1252(f )(1) deprives courts of the power to issue a
specific category of remedies: those that
“enjoin or restrain the operation
of †the relevant sections of the statute.
A limitation on subject matter jurisdiction, by contrast, restricts
a court’s “power to
adjudicate a case.â€
United States v.
Cotton,
535 U.S.
625, 630 (2002). Section 1252(f )(1) bears no
indication that lower courts lack power to hear any claim brought
under sections 1221 through 1232. If Congress had wanted the
provision to have that effect, it could have said so in words far
simpler than those that it wrote. But Congress instead provided
that lower courts would lack jurisdiction to
“enjoin or restrain the operation
of †the relevant provisions, and it
included that language in a provision whose
title—“Limit on injunctive
relief â€â€”makes clear the
narrowness of its scope.
A second feature of the text of section 1252(f )(1)
leaves no doubt that this Court has jurisdiction: the parenthetical
explicitly preserving this Court’s power to
enter injunctive relief. See §1252(f )(1)
(“[N]o court (other than the Supreme Court)
shall have jurisdiction or authority
. . .â€). If section
1252(f )(1) deprived lower courts of subject matter
jurisdiction to adjudicate any non-individual claims under sections
1221 through 1232, no such claims could ever arrive at this Court,
rendering the provision’s specific carveout for
Supreme Court injunctive relief nugatory. Indeed, that carveout
seems directed at precisely the question before us here: whether
section 1252(f )(1)’s
“[l]imit on injunctive
relief †has any consequence for the
jurisdiction of this Court. Congress took pains to answer that
question in the negative. Interpreting section
1252(f )(1) to deprive this Court of jurisdiction under
these circumstances would therefore fail to
“give effect, if possible, to every clause and
word of [the] statute.â€
Williams v.
Taylor,
529 U.S.
362, 404 (2000).[
2]
Statutory structure confirms our conclusion. Elsewhere in
section 1252, where Congress intended to deny subject matter
jurisdiction over a particular class of claims, it did so
unambiguously. Section 1252(a)(2), for instance, is entitled
“Matters not subject to judicial
review†and provides that “
no
court shall have jurisdiction to review†several
categories of decisions, such as “any final
order of removal against an alien who is removable by reason of
having committed a criminal
offense. . . .â€
(Emphasis added.) Congress could easily have added one more item to
this list: any action taken pursuant to sections 1221 through 1232.
Or it could have worded section 1252(f )(1) similarly
to the immediately adjacent section 1252(g), which provides that
“
no court shall have jurisdiction to hear any
cause or claim by or on behalf of any alien arising from the
decision or action by the Attorney General to commence proceedings,
adjudicate cases, or execute removal orders against [the
alien].†(Emphasis added.) But Congress did neither.
Instead, it constructed a carefully worded provision depriving the
lower courts of power to “enjoin or restrain the
operation of †certain sections of the
statute, and it entitled that provision a
“[l]imit on injunctive relief.â€
Our prior cases have already embraced this straightforward
conclusion. Most relevantly, the Court previously encountered a
virtually identical situation in
Nielsen v.
Preap,
586 U. S. ___ (2019). There, as here, the plaintiffs
sought declaratory as well as injunctive relief in their complaint,
and there, as here, the District Court awarded only the latter. Yet
this Court proceeded to reach the merits of the suit,
notwithstanding the District Court’s apparent
violation of section 1252(f )(1), by reasoning that
“[w]hether the [District] [C]ourt had
jurisdiction to enter such an injunction is irrelevant because the
District Court had jurisdiction to entertain the
plaintiffs’ request for declaratory
relief.â€
Id., at ___–___
(Alito, J., joined by Roberts, C. J., and Kavanaugh, J.) (slip op.,
at 8–9); see also
Jennings v.
Rodriguez, 583 U. S. ___, ___ (2018) (Breyer,
J., joined by Ginsburg and Sotomayor, JJ., dissenting) (slip op.,
at 31) (concluding that “a court could order
declaratory relief †notwithstanding
section 1252(f )(1)). Our disposition in
Preap
is inconsistent with an interpretation of the limitation in section
1252(f )(1) that strips the lower courts of subject
matter jurisdiction.[
3] And previous statements
from this Court regarding section 1252(f )(1) are in
accord. See
Reno v.
American-Arab Anti-Discrimination
Comm.,
525 U.S.
471, 481 (1999) (“By its plain terms, and
even by its title, [section 1252(f )(1)] is nothing
more or less than a limit on injunctive relief.â€).
In short, we see no basis for the conclusion that section
1252(f )(1) concerns subject matter jurisdiction. It is
true that section 1252(f )(1) uses the phrase
“jurisdiction or authority,†rather
than simply the word “authority.â€
But “[j]urisdiction
. . . is a word of many, too many
meanings.â€
Steel Co., 523 U. S., at
90. And the question whether a court has jurisdiction to grant a
particular remedy is different from the question whether it has
subject matter jurisdiction over a particular class of claims. See
Reed Elsevier,
Inc. v.
Muchnick,
559 U.S.
154, 163–164 (2010) (concluding that
“[t]he word
‘jurisdiction’
. . . says nothing about whether a federal
court has subject-matter jurisdiction to adjudicate
claimsâ€). Section 1252(f )(1) no doubt
deprives the lower courts of
“jurisdiction†to grant classwide
injunctive relief. See
Aleman Gonzalez, 596
U. S., at ___ (slip op., at 11). But that limitation
poses no obstacle to jurisdiction in this Court.[
4]
III
We now turn to the merits. Section 1225(b)(2)(C) provides:
“In the case of an alien
. . . who is arriving on land
. . . from a foreign territory contiguous
to the United States, the [Secretary] may return the alien to that
territory pending a proceeding under section 1229a.â€
Section 1225(b)(2)(C) plainly confers a
discretionary
authority to return aliens to Mexico during the pendency of their
immigration proceedings. This Court has
“repeatedly observed†that
“the word
‘may’
clearly connotes
discretion.â€
Opati v.
Republic of Sudan,
590 U. S. ___, ___ (2020) (slip op., at 10) (emphasis
in original); see also,
e.g.,
Weyerhaeuser Co. v.
United States Fish and Wildlife Serv., 586 U. S.
___, ___ (2018) (slip op., at 14);
Jama v.
Immigration
and Customs Enforcement,
543 U.S.
335, 346 (2005). The use of the word
“may†in section 1225(b)(2)(C) thus
makes clear that contiguous-territory return is a tool that the
Secretary “has the authority, but not the
duty,†to use.
Lopez v.
Davis,
531 U.S.
230, 241 (2001).
Respondents and the Court of Appeals concede this point. Brief
for Respondents 21 (contiguous-territory return is a
“discretionary authorityâ€); 20 F.
4th, at 996, n. 18
(“It’s obviously true that
§1225(b)(2)(C) is discretionary.â€). They
base their interpretation instead on section 1225(b)(2)(A), which
provides that, “in the case of an alien who is
an applicant for admission, if the examining immigration officer
determines that an alien seeking admission is not clearly and
beyond a doubt entitled to be admitted, the alien shall be detained
for a proceeding under section 1229a of this title.â€
Respondents and the Court of Appeals thus urge an inference from
the statutory structure: Because section 1225(b)(2)(A) makes
detention mandatory, they argue, the otherwise-discretionary return
authority in section 1225(b)(2)(C) becomes mandatory when the
Secretary violates that detention mandate.
The problem is that the statute does not say anything like that.
The statute says “may.†And
“may†does not just suggest
discretion, it “
clearly
connotes†it.
Opati, 590 U. S., at
___ (slip op., at 10) (emphasis in original); see also
Jama,
543 U. S., at 346 (“That connotation
is particularly apt where, as here,
‘may’ is used in
contraposition to the word
‘shall.’ â€).
Congress’s use of the word
“may†is therefore inconsistent with
respondents’ proposed inference from the
statutory structure. If Congress had intended section 1225(b)(2)(C)
to operate as a mandatory cure of any noncompliance with the
Government’s detention obligations, it would not
have conveyed that intention through an unspoken inference in
conflict with the unambiguous, express term
“may.†It would surely instead have
coupled that grant of discretion with some indication of its
sometimes-mandatory nature—perhaps by providing
that the Secretary “may returnâ€
certain aliens to Mexico, “unless the government
fails to comply with its detention obligations, in which case the
Secretary must return them.†The statutory grant of
discretion here contains no such caveat, and we will not rewrite it
to include one. See
id., at 341 (“We do
not lightly assume that Congress has omitted from its adopted text
requirements that it nonetheless intends to
apply.â€).
The principal dissent emphasizes that section 1225(b)(2)(A)
requires detention of all aliens that fall within its terms. See,
e.g.,
post, at 8 (Alito, J., dissenting)
(“The language of8
U. S. C. §1225(b)(2)(A) is
unequivocal.â€). While the Government contests that
proposition, we assume
arguendo for purposes of this opinion
that the dissent’s interpretation of section
1225(b)(2)(A) is correct, and that the Government is currently
violating its obligations under that provision.[
5] Even so, the dissent’s conclusions
regarding section 1225(b)(2)(C) do not follow. Under the actual
text of the statute, Justice Alito’s
interpretation is practically self-refuting. He emphasizes that
“ ‘[s]hall be
detained’ means ‘shall be
detained,’ â€
post, at 9, and criticizes the
Government’s “argument that
‘shall’ means
‘may,’ â€
post, at 10. But the theory works both ways. Congress
conferred contiguous-territory return authority in expressly
discretionary terms.
“ ‘[M]ay return
the alien’ means ‘may return
the alien.’ †The desire
to redress the Government’s purported violation
of section 1225(b)(2)(A) does not justify transforming the nature
of the authority conferred by section 1225(b)(2)(C).[
6]
The historical context in which the provision was adopted
confirms the plain import of its text. See,
e.g.,
Niz-Chavez v.
Garland, 593 U. S. ___, ___
(2021) (slip op., at 9) (textual analysis confirmed by
“a wider look at [the
statute’s] structure and historyâ€).
Section 1225(b)(2)(C) was not added to the statute until 1996, in
the Illegal Immigration Reform and Immigrant Responsibility Act of
1996 (IIRIRA),
§302,110Stat.300–583—more
than 90 years after the Immigration Act of 1903 added the
“shall be detained†language that
appears in section 1225(b)(2)(A). And section 1225(b)(2)(C) was
enacted in the immediate aftermath of a Board of Immigration
Appeals (BIA) decision that specifically called into question the
legality of the contiguous-territory return practice. Prior to that
decision, the longstanding practice of the Immigration and
Naturalization Service (INS) had been to require some aliens
arriving at land border ports of entry to await their exclusion
proceedings in Canada or Mexico. The BIA noted the lack of
“any evidence that this is a practice known to
Congress†and “the absence of a
supporting regulation.â€
In re
Sanchez-Avila, 21 I. & N. Dec. 444, 465 (1996) (en banc).
Congress responded mere months later by adding section
1225(b)(2)(C) to IIRIRA and conferring on the Secretary express
authority (“mayâ€) to engage in the
very practice that the BIA had questioned. And INS acknowledged
that clarification shortly thereafter, explaining that section
1225(b)(2)(C) and its implementing regulation
“simply add[ ] to the statute and
regulation a long-standing practice of the Service.†62
Fed. Reg. 445 (1997). That modest backstory suggests a more humble
role for section 1225(b)(2)(C) than as a mandatory
“safety valve†for any alien who is
not detained under section 1225(b)(2)(A).
In addition to contradicting the statutory text and context, the
novelty of respondents’ interpretation bears
mention. Since IIRIRA’s enactment 26 years ago,
every Presidential administration has interpreted section
1225(b)(2)(C) as purely discretionary. Indeed, at the time of
IIRIRA’s enactment and in the decades since,
congressional funding has consistently fallen well short of the
amount needed to detain all land-arriving inadmissible aliens at
the border, yet no administration has ever used section
1225(b)(2)(C) to return all such aliens that it could not otherwise
detain.
And the foreign affairs consequences of mandating the exercise
of contiguous-territory return likewise confirm that the Court of
Appeals erred. Article II of the Constitution authorizes the
Executive to “engag[e] in direct diplomacy with
foreign heads of state and their ministers.â€
Zivotofsky v.
Kerry,576 U.S. 1, 14 (2015).
Accordingly, the Court has taken care to avoid
“the danger of unwarranted judicial interference
in the conduct of foreign policy,†and declined to
“run interference in [the] delicate field of
international relations†without
“the affirmative intention of the Congress
clearly expressed.â€
Kiobel v.
Royal Dutch
Petroleum Co.,
569 U.S.
108, 115–116 (2013). That is no less true in
the context of immigration law, where “[t]he
dynamic nature of relations with other countries requires the
Executive Branch to ensure that enforcement policies are consistent
with this Nation’s foreign policy.â€
Arizona v.
United States,
567
U.S. 387, 397 (2012).
By interpreting section 1225(b)(2)(C) as a mandate, the Court of
Appeals imposed a significant burden upon the
Executive’s ability to conduct diplomatic
relations with Mexico. MPP applies exclusively to non-Mexican
nationals who have arrived at ports of entry that are located
“in the United States.â€
§1225(a)(1). The Executive therefore cannot
unilaterally return these migrants to Mexico. In attempting to
rescind MPP, the Secretary emphasized that
“[e]fforts to implement MPP have played a
particularly outsized role in diplomatic engagements with Mexico,
diverting attention from more productive efforts to fight
transnational criminal and smuggling networks and address the root
causes of migration.†App. to Pet. for Cert. 262a. Yet
under the Court of Appeals’ interpretation,
section 1225(b)(2)(C) authorized the District Court to force the
Executive to the bargaining table with Mexico, over a policy that
both countries wish to terminate, and to supervise its continuing
negotiations with Mexico to ensure that they are conducted
“in good faith.†554
F. Supp. 3d, at 857 (emphasis deleted). That stark
consequence confirms our conclusion that Congress did not intend
section 1225(b)(2)(C) to tie the hands of the Executive in this
manner.
Finally, we note that—as DHS explained in its
October 29 Memoranda—the INA expressly
authorizes DHS to process applicants for admission under a third
option: parole. See8 U. S. C.
§1182(d)(5)(A). Every administration, including the
Trump and Biden administrations, has utilized this authority to
some extent. Importantly, the authority is not unbounded: DHS may
exercise its discretion to parole applicants
“only on a case-by-case basis for urgent
humanitarian reasons or significant public benefit.â€
Ibid. And under the APA, DHS’s exercise
of discretion within that statutory framework must be reasonable
and reasonably explained. See
Motor Vehicle Mfrs. Assn. of
United States,
Inc. v.
State Farm Mut. Automobile
Ins. Co.,
463 U.S.
29 (1983). But the availability of the parole option
additionally makes clear that the Court of Appeals erred in holding
that the INA required the Government to continue implementing
MPP.
In sum, the contiguous-territory return authority in section
1225(b)(2)(C) is discretionary—and remains
discretionary notwithstanding any violation of section
1225(b)(2)(A). To reiterate: we need not and do not resolve the
parties’ arguments regarding whether section
1225(b)(2)(A) must be read in light of traditional principles of
law enforcement discretion, and whether the Government is lawfully
exercising its parole authorities pursuant to sections 1182(d)(5)
and 1226(a). We merely hold that section 1225(b)(2)(C) means what
it says: “may†means
“may,†and the INA itself does not
require the Secretary to continue exercising his discretionary
authority under these circumstances.
IV
The Court of Appeals also erred in holding that
“[t]he October 29 Memoranda did not constitute a
new and separately reviewable ‘final agency
action.’ †20 F. 4th, at
951. To recap, the Secretary first attempted to terminate MPP
through the June 1 Memorandum. As the Court of Appeals correctly
held, that constituted final agency action. See
id., at 947
(citing
Bennett v.
Spear,
520
U.S. 154 (1997)). But the District Court found that the
Secretary’s stated grounds in the June 1
Memorandum were inadequate, and therefore
“vacated†the June 1 Memorandum and
“remanded [the matter] to DHS for further
consideration.†554 F. Supp. 3d, at
857.
As we explained two Terms ago in
Department of Homeland
Security v.
Regents of Univ. of Cal., 591
U. S. ___ (2020), upon finding that the grounds for
agency action are inadequate, “a court may
remand for the agency to do one of two things.â€
Id., at ___ (slip op., at 13). “First,
the agency can offer ‘a fuller explanation of
the agency’s reasoning at the time of the agency
action.’ â€
Ibid.
(emphasis deleted). If it chooses this route,
“the agency may elaborate†on its
initial reasons for taking the action, “but may
not provide new ones.â€
Id., at ___ (slip op., at
14). Alternatively, “the agency can
‘deal with the problem
afresh’ by taking
new agency
action.â€
Ibid. (quoting
SEC v.
Chenery
Corp.,
332 U.S.
194, 201 (1947) (
Chenery II)). “An
agency taking this route is not limited to its prior
reasons.â€
Regents, 591 U. S
.,
at ___ (slip op., at 14).
Here, perhaps in light of this Court’s
previous determination that the Government had
“failed to show a likelihood of success on the
claim that the [June 1 Memorandum] was not arbitrary and
capricious,†594 U. S. ___, the Secretary
selected the second option from
Regents: He accepted the
District Court’s vacatur and dealt with the
problem afresh. The October 29 Memoranda made that clear
“by its own terms,â€
Regents,
591 U. S., at ___ (slip op., at 14), in which the
Secretary stated: “I am hereby terminating MPP.
Effective immediately, I hereby supersede and rescind the June 1
memorandum.†App. to Pet. for Cert.
263a–264a. And consistent with that approach,
the October 29 Memoranda offered several “new
reasons absent from†the June 1 Memorandum,
Regents, 591 U. S., at ___ (slip op., at 14),
including an examination of the “considerations
that the District Court determined were insufficiently addressed in
the June 1 memo,†App. to Pet. for Cert. 259a.
The October 29 Memoranda were therefore final agency action for
the same reasons that the June 1 Memorandum was final agency
action. That is, both the June 1 Memorandum and the October 29
Memoranda, when they were issued, “mark[ed] the
‘consummation’ of the
agency’s decisionmaking process†and
resulted in “rights and obligations [being]
determined.â€
Bennett, 520 U. S., at
178. As the Court of Appeals explained, the June 1 Memorandum
“bound DHS staff by forbidding them to continue
the program in any way from that moment on.†20 F. 4th,
at 947. That rationale also applies to the October 29 Memoranda,
which were therefore final agency action under the APA.[
7]
The various rationales offered by respondents and the Court of
Appeals in support of the contrary conclusion lack merit.[
8] First, the Court of Appeals framed the question by
postulating the existence of an agency decision wholly apart from
any “agency statement of general or particular
applicability . . . designed to
implement†that decision. 5
U. S. C. §551(4); see 20 F.
4th, at 950–951 (“The States
are challenging the
Termination
Decision—not the June 1 Memorandum, the
October 29 Memoranda, or any other memo.â€). To the
extent that the Court of Appeals understood itself to be reviewing
an abstract decision apart from specific agency action, as defined
in the APA, that was error. It was not the case that the June 1
Memorandum and the October 29 Memoranda “simply
explained DHS’s decision,â€
while only the decision itself “had legal
effect.â€
Id., at 951. To the contrary, the June
1 Memorandum and the October 29 Memoranda were themselves the
operative agency actions, each of them an
“agency statement . . .
designed to implement, interpret, or prescribe law or
policy.â€5 U. S. C.
§551(4).
Second, and relatedly, respondents characterized the October 29
Memoranda as
post hoc rationalizations of the
June 1 Memorandum under our decision in
Regents. Brief for
Respondents 40 (“[T]he [October 29] Memoranda
are nothing more than improper, post hoc
rationalizations for terminating MPP.â€); see also 20 F.
4th, at 961 (questioning how the October 29 Memoranda
“[could] be anything more than
post hoc rationalizations of the Termination
Decisionâ€). But
Regents involved the exact
opposite situation from this one. There, as here, DHS had attempted
to rescind a prior administration’s immigration
policy, but a District Court found the rescission inadequately
explained. Faced with the same two options outlined above, then-
Secretary Nielsen elected the first option rather than the second.
That is, she chose to “rest on the [original]
Memorandum while elaborating on [her] prior reasoning,â€
rather than “issue a new rescission bolstered by
new reasons absent from the [original] Memorandum.†591
U. S., at ___ (slip op., at 14). As such, her
elaboration “was limited to the
agency’s original reasons,†and was
“ ‘viewed
critically’ to ensure that the rescission [was]
not upheld on the basis of impermissible
‘
post hoc
rationalization.’ â€
Id., at ___–___ (slip op., at
14–15). And because the
then-Secretary’s reasoning had
“little relationship to that of her
predecessor,†the Court characterized the new
explanations as “impermissible
post hoc rationalizations
. . . not properly before us.â€
Id., at ___ (slip op., at 15).
The prohibition on
post hoc rationalization
applies only when the agency proceeds by the first option from
Regents. Under that circumstance, because the agency has
chosen to “rest on [its original action] while
elaborating on its prior reasoning,â€
id., at ___
(slip op., at 14), the bar on
post hoc
rationalization operates to ensure that the
agency’s supplemental explanation is anchored to
“the grounds that the agency invoked when it
took the action,â€
Michigan v.
EPA,576
U.S. 743, 758 (2015). By contrast, as noted above, the Secretary
here chose the second option from
Regents, and
“ ‘deal[t] with
the problem afresh’ by taking
new agency
action.†591 U. S., at ___ (slip op., at
14). That second option can be more procedurally onerous than the
first—the agency “must comply
with the procedural requirements for new agency
actionâ€â€”but the benefit is that the
agency is “not limited to its prior
reasons†in justifying its decision.
Ibid.
Indeed, the entire purpose of the October 29 Memoranda was for the
Secretary to “issue a new rescission bolstered
by new reasons absent from the [June 1] Memorandum,â€
ibid.—reasons that he hoped would answer
the District Court’s concerns from the first
go-round. Having returned to the drawing table and taken new
action, therefore, the Secretary was not subject to the charge of
post hoc rationalization.
Third, respondents invoke our decision in
Department of
Commerce v.
New York, 588 U. S. ___ (2019),
to contend that DHS’s failure to
“hew[ ] to the administrative
straight and narrow†deprives the October 29 Memoranda
of the presumption of regularity that normally attends agency
action, Brief for Respondents 43. As we explained in that case,
“in reviewing agency action, a court is
ordinarily limited to evaluating the agency’s
contemporaneous explanation in light of the existing administrative
record.â€
Department of Commerce, 588
U. S., at ___ (slip op., at 23).
Department of
Commerce involved a “narrow exception to
th[at] general rule†that applies where the challengers
to the agency’s action make a
“strong showing of bad faith or improper
behavior†on the part of the agency.
Id., at ___
(slip op., at 24) (quoting
Citizens to Preserve Overton
Park,
Inc. v.
Volpe,
401 U.S.
402, 420 (1971)). We held that exception satisfied by an
accumulation of “unusual
circumstances†that demonstrated an
“explanation for agency action that [was]
incongruent with what the record reveal[ed] about the
agency’s priorities and decisionmaking
process.â€
Department of Commerce, 588
U. S., at ___ (slip op., at 28).
The circumstances in this case do not come close to those in
Department of Commerce. Nothing in this record suggests a
“significant mismatch between the decision the
Secretary made and the rationale he provided.â€
Id., at ___ (slip op., at 26). Respondents direct us instead
to the Government’s litigation conduct. But the
examples of misconduct to which respondents
refer—such as a failure to timely complete the
administrative record, Brief for Respondents
42—have no bearing on the legal status of the
October 29 Memoranda. And in any event, they fall well short of the
“strong showing of bad faith or improper
behavior,â€
Overton Park, 401 U. S.,
at 420, that we require before deviating from our normal rule that
“[t]he grounds upon which an administrative
order must be judged are those upon which the record discloses that
its action was based,â€
SEC v.
Chenery
Corp.,
318 U.S.
80, 87 (1943).
The Court of Appeals leveled the related but more modest charge
that the Secretary failed to proceed with a sufficiently open mind.
See,
e.g., 20 F. 4th, at 955 (agency proceeded
“without a hint of an intention to put the
Termination Decision back on the chopping block and rethink
thingsâ€). But the agency’s
ex
ante preference for terminating MPP—like any
other feature of an administration’s policy
agenda—should not be held against the October 29
Memoranda. “It is hardly improper for an agency
head to come into office with policy preferences and ideas
. . . and work with staff attorneys to
substantiate the legal basis for a preferred policy.â€
Department of Commerce, 588 U. S., at ___ (slip
op., at 26); see also
State Farm, 463 U. S., at
59 (Rehnquist, J., concurring in part and dissenting in part)
(“As long as [an] agency remains within the
bounds established by Congress, it is entitled to assess
administrative records and evaluate priorities in light of the
philosophy of the administration.†(footnote
omitted)).
And the critique is particularly weak on these facts. The Court
of Appeals took the agency to task for its September 29
announcement of its “inten[tion] to issue in the
coming weeks a new memorandum terminating†MPP. 20 F.
4th, at 954; see
ibid. (“Rather than
announcing an intention to
reconsider its Termination
Decision, the announcement set forth DHS’s
conclusion in unmistakable terms.â€). But that
announcement came over six weeks after the District
Court’s August 13 remand—a
substantial window of time for the agency to conduct a bona fide
reconsideration.
More importantly, this Court has previously rejected criticisms
of agency closemindedness based on an identity between proposed and
final agency action. See
Little Sisters of the Poor Saints Peter
and Paul Home v.
Pennsylvania, 591 U. S.
___, ___ (2020) (slip op., at 24) (“declin[ing]
to evaluate the [agency’s] final rules under
[an] open-mindedness test†where interim and final
rules were “virtually identical†but
procedural requirements were otherwise satisfied). Similar
principles refute the Court of Appeals’
criticism of the October 29 Memoranda for their failure to
“alter the Termination Decision in any
way.†20 F. 4th, at 946. It is black-letter law that an
agency that takes superseding action on remand is entitled to
“reexamine[ ] the problem, recast
its rationale and reach[Â ] the same
result.â€
Chenery II, 332 U. S., at
196; see also
Regents, 591 U. S., at ___
(Kavanaugh, J., concurring in judgment in part and dissenting in
part) (slip op., at 4) (“Courts often consider
an agency’s . . .
additional explanations made . . . on
remand from a court, even if the agency’s
bottom-line decision itself does not change.â€).
Finally, the Court of Appeals erred to the extent it viewed the
Government’s decision to appeal the District
Court’s injunction as relevant to the question
of the October 29 Memoranda’s status as final
agency action. Nothing prevents an agency from undertaking new
agency action while simultaneously appealing an adverse judgment
against its original action. That is particularly so under the
circumstances of this case. The second condition of the District
Court’s injunction, which purported to bind DHS
to implement MPP in perpetuity subject only to congressional
funding choices outside its control, as a practical matter left the
Government no choice but to appeal. And the agency reasonably chose
to accede to the District Court’s APA analysis
of the June 1 Memorandum and seek to ameliorate those concerns in
the meantime.
*  *  *
For the reasons explained, the Government’s
rescission of MPP did not violate section 1225 of the INA, and the
October 29 Memoranda did constitute final agency action. We
therefore reverse the judgment of the Court of Appeals and remand
the case for further proceedings consistent with this opinion. On
remand, the District Court should consider in the first instance
whether the October 29 Memoranda comply with section 706 of the
APA. See
State Farm, 463 U. S., at
46–57.
It is so ordered.