NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
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.
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 under
8 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.”
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.” 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.” 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.” 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.” Id.
, at 348a–349a.
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 options”: 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.” 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.” 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.” 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.” 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].” 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.” 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.” 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.” Id.
, at 262a.
In light of those conclusions, the Secretary announced that he was once again “hereby terminating MPP.” Id.
, at 263a. He explained that DHS would “continue complying with the [District Court’s] injunction requiring good-faith implementation and enforcement of MPP.” 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.” 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.’ ” 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.” 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.” 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.” Id.
, at 941.
We granted certiorari, 595 U. S. ___ (2022), and expedited consideration of this appeal at the Government’s request.
We begin with jurisdiction. The Government contends that the injunction the District Court entered was barred by
8 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.”
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.” 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. See
28 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.”). 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.” United States
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 ”—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 . . .”). 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.” Williams
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. . . .” (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.”
Our prior cases have already embraced this straightforward conclusion. Most relevantly, the Court previously encountered a virtually identical situation in Nielsen
, 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.” Id.
, at ___–___ (Alito, J., joined by Roberts, C. J., and Kavanaugh, J.) (slip op., at 8–9); see also Jennings
, 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.”).
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.” But “[j]urisdiction . . . is a word of many, too many meanings.” 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
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 claims”). 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
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.” 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.” 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
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 authority”); 20 F. 4th, at 996, n. 18 (“It’s obviously true that §1225(b)(2)(C) is discretionary.”). 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.” 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.’ ”). 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 return” 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.”).
The principal dissent emphasizes that section 1225(b)(2)(A) requires detention of all aliens that fall within its terms. See, e.g.
at 8 (Alito, J., dissenting) (“The language of
8 U. S. C. §1225(b)(2)(A) is unequivocal.”). 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,’ ” post
, at 9, and criticizes the Government’s “argument that ‘shall’ means ‘may,’ ” 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.
, 593 U. S. ___, ___ (2021) (slip op., at 9) (textual analysis confirmed by “a wider look at [the statute’s] structure and history”). 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,
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.” 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 (“may”) 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.” Zivotofsky
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.” 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.” 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.” §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. See
8 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.” 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
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.
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
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.” 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.’ ” 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.” Id.
, at ___ (slip op., at 14). Alternatively, “the agency can ‘deal with the problem afresh’ by taking new
agency action.” Ibid.
v. Chenery Corp.
332 U.S. 194
, 201 (1947) (Chenery II
)). “An agency taking this route is not limited to its prior reasons.” 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,” 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.” 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.”). 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,” while only the decision itself “had legal effect.” 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.”
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.”); see also 20 F. 4th, at 961 (questioning how the October 29 Memoranda “[could] be anything more than post hoc
rationalizations of the Termination Decision”). 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,” 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.’ ” 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.” 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,” 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,” Michigan
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 action”—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,” 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
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.” 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
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.” 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.” 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,” 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,” 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 things”). 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.” 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.”). 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
, 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[ ] the same result.” 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.”).
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.