SUPREME COURT OF THE UNITED STATES
UNITED STATES, et al., PETITIONERS
TEXAS, et al.
on writ of certiorari to the united states
court of appeals for the fifth circuit
[June 23, 2023]
Justice Alito, dissenting.
The Court holds Texas lacks standing to
challenge a federal policy that inflicts substantial harm on the
State and its residents by releasing illegal aliens with criminal
convictions for serious crimes. In order to reach this conclusion,
the Court brushes aside a major precedent that directly controls
the standing question, refuses to apply our established test for
standing, disregards factual findings made by the District Court
after a trial, and holds that the only limit on the power of a
President to disobey a law like the important provision at issue is
Congress’s power to employ the weapons of inter-branch
warfare—withholding funds, impeachment and removal, etc. I
would not blaze this unfortunate trail. I would simply apply
settled law, which leads ineluctably to the conclusion that Texas
This Court has long applied a three-part test to
determine whether a plaintiff has standing to sue. Under that test,
a plaintiff must plead and ultimately prove that it has been
subjected to or imminently faces an injury that is:
(1) “concrete and particularized,” (2)
“fairly traceable to the challenged action,” and (3)
“likely” to be “redressed by a favorable
v. Defenders of Wildlife
, 560–561 (1992) (internal quotation marks and
alterations omitted). Under that familiar test, Texas clearly has
standing to bring this suit.[1
Nevertheless, the United States (the defendant
in this case) has urged us to put this framework aside and adopt a
striking new rule. At argument, the Solicitor General was asked
whether it is the position of the United States that the
Constitution does not allow any party to challenge a
President’s decision not to enforce laws he does not like.
What would happen, the Solicitor General was asked, if a President
chose not to enforce the environmental laws or the labor laws?
Would the Constitution bar an injured party from bringing suit? She
“That’s correct under this
, but the framers intended political
checks in that circumstance. You know, if—if an
administration did something that extreme and said we’re just
not going to enforce the law at all, then the President would be
held to account by the voters, and Congress has tools at its
disposal as well.” Tr. of Oral Arg. 50 (emphasis added).
Thus, according to the United States, even if a
party clearly meets our three-part test for Article III standing,
the Constitution bars that party from challenging a
President’s decision not to enforce the law. Congress may
wield what the Solicitor General described as “political
. . . tools”—which presumably means such
things as withholding funds, refusing to confirm Presidential
nominees, and impeachment and removal—but otherwise Congress
and the American people must simply wait until the
President’s term in office expires.
The Court—at least for now—does not
fully embrace this radical theory and instead holds only that, with
some small and equivocal limitations that I will discuss, no party
may challenge the Executive’s “arrest and prosecution
, at 12, n. 5. But the Court
provides no principled explanation for drawing the line at this
point, and that raises the concern that the Court’s only
reason for framing its rule as it does is that no more is needed to
dispose of this
case. In future cases, Presidential power
may be extended even further. That disturbing possibility is
bolstered by the Court’s refusal to reject the
Government’s broader argument.
As I will explain, nothing in our precedents
even remotely supports this grossly inflated conception of
“executive Power,” U. S. Const., Art. II, §1,
which seriously infringes the “legislative Powers” that
the Constitution grants to Congress, Art. I, §1. At issue here
is Congress’s authority to control immigration, and
“[t]his Court has repeatedly emphasized that ‘over no
conceivable subject is the legislative power
of Congress more complete than it is
over’ the admission of aliens.” Fiallo
, 430 U.S.
, 792 (1977). In the exercise of that power, Congress passed
and President Clinton signed a law that commands the detention and
removal of aliens who have been convicted of certain particularly
dangerous crimes. The Secretary of Homeland Security, however, has
instructed his agents to disobey this legislative command and
instead follow a different policy that is more to his liking. And
the Court now says that no party injured by this policy is allowed
to challenge it in court.
That holding not only violates the
Constitution’s allocation of authority among the three
branches of the Federal Government; it also undermines federalism.
This Court has held that the Federal Government’s authority
in the field of immigration severely restricts the ability of
States to enact laws or follow practices that address harms
resulting from illegal immigration. See Arizona
, 567 U.S.
, 401 (2012). If States are also barred from bringing suit
even when they satisfy our established test for Article III
standing, they are powerless to defend their vital interests. If a
President fails or refuses to enforce the immigration laws, the
States must simply bear the consequences. That interpretation of
executive authority and Article III’s case or controversy
requirement is deeply and dangerously flawed.
The Court’s opinion omits much that is
necessary to understand the significance of its decision, and I
therefore begin by summarizing the relevant statutory provisions,
the challenged Department of Homeland Security (DHS) action, and
the District Court’s findings of fact regarding the injury
faced by the State of Texas as the result of what DHS has done.
The relevant statutory provisions have figured
in several prior decisions, and in those cases we have recounted
how they came to be enacted and have clearly described what they
require. These provisions were part of the Illegal Immigration
Reform and Immigration Responsibility Act of 1996 (IIRIRA), which
was adopted “against a backdrop of wholesale failure by the
[Immigration and Naturalization Service] to deal with increasing
rates of criminal activity by aliens.” Demore
, 538 U.S.
, 518 (2003).[2
Congress concluded that a central cause of that failure was the
Attorney General’s “broad discretion to conduct
individualized bond hearings and to release criminal aliens from
custody during their removal proceedings.” Id.
519. To remedy this problem, Congress “subtract[ed]
some of that discretion when it comes to the arrest and release of
criminal aliens.” Nielsen
U. S. ___, ___ (2019) (slip op., at 15) (emphasis in
Two such limits are important here. First, 8
U. S. C. §1226(c) directs the Government to
“take into custody any alien” inadmissible or
deportable on certain criminal or terrorist grounds “when the
alien is released” from criminal custody, including when such
an alien is released on “parole, supervised release, or
probation.” Second, §1231(a) imposes a categorical
detention mandate. Section 1231(a)(2) provides that the Government
“shall detain [an] alien” “[d]uring the removal
period,” which often begins either when an “order of
removal becomes administratively final” or when an
“alien is released from detention or confinement” not
arising from immigration process, §1231(a)(1)(B). This
requirement is reinforced by the direction that “[u]nder no
circumstance during the removal period shall the [Government]
release an alien” found inadmissible or deportable under
almost any of the grounds relevant under §1226(c).
§1231(a)(2). And §1231(a)(1)(A) commands that the
Government “shall remove the alien” within the removal
All of our recent decisions interpreting these
provisions confirm that, for covered aliens, shall
; it does not mean “may.” See
v. Guzman Chavez
, 594 U. S. ___,
___–___, and n. 2 (2021) (slip op., at 2–3, and
n. 2); Nielsen
, 586 U. S., at ___–___ (slip
op., at 16–17). Until quite recently, that was the
Government’s understanding as well. See Biden
, 597 U. S. ___, ___–___ (2022) (slip op.,
at 8–9) (Alito, J., dissenting).
Actions taken by Congress when IIRIRA was
enacted underscore this conclusion. Because the provisions
described above left the Executive with no discretion to refrain
from arresting and detaining covered aliens, even during the time
immediately after IIRIRA’s enactment when the Executive was
still “expand[ing] its capacities” to enforce the new
law, Congress passed “transition rules [that] delayed the
onset of the Secretary’s obligation to begin making arrests
as soon as covered aliens were released from criminal
, 586 U. S., at ___ (slip op.,
at 21). If the Executive had possessed the discretion to decline to
enforce the new mandates in light of “resource
constraints,” see ante
, at 8, those transition rules
would have been entirely “superfluous.” Nielsen
586 U. S., at ___ (slip op., at 21).
Despite this clear text and background, the
majority now claims that the President’s “enforcement
discretion” survived these mandates, ante
, at 7, but
there is no basis for that conclusion. Certainly it is not
supported by the cases it cites. They either underscore the
rule that the Executive possesses enforcement
discretion, see Reno
v. American-Arab Anti-Discrimination
, 525 U.S.
, 490–491 (1999), or pair that general rule with the
observation that the States
cannot limit the
Government’s discretion in pursuing removal, see
, 567 U. S., at 396, 409. Nothing in those
decisions is inconsistent with Congress’s power to displace
executive discretion, and the fact that “five Presidential
administrations” sometimes neglected the mandates is likewise
irrelevant. See ante
, at 8. As I have stressed before, the
Executive cannot “acquire authority forbidden by law through
a process akin to adverse possession,” Biden
, 597 U. S., at ___ (dissenting opinion) (slip
op., at 15), and that is true even if the adverse possession is
The events that gave rise to this case began
on January 20, 2021, when the Acting Secretary of DHS issued a
memorandum with “enforcement priorities” for the
detention and removal of aliens found to be in this country
illegally. This memorandum prioritized: (1) aliens “whose
apprehension” implicated “national security,” (2)
aliens not present “before November 1, 2020,” and (3)
aliens due to be released from criminal confinement who had both
been “convicted of an ‘aggravated felony’ ”
and were “determined to pose a threat to public
safety.” 606 F. Supp. 3d 437, 454 (SD Tex. 2022)
(internal quotation marks omitted); see §1101(a)(43) (defining
“aggravated felony”). This prioritization was
inconsistent with the §1226(c) arrest mandate, which extends
to all aliens convicted of any crime within a long list of
statutory categories. 606 F. Supp. 3d, at 454–455.
In February, Immigrations and Customs
Enforcement (ICE), an arm of DHS, issued a second memorandum that
slightly modified the earlier priorities and stated that
“ ‘preapproval’ ” would generally
be required “for enforcement actions” against persons
outside these priority groups. Id.
, at 455–456. This
memorandum was also inconsistent with the relevant statutes.
After some litigation regarding these two
memoranda, a new DHS Secretary issued a Final Memorandum
instructing that even aliens in priority groups need not
necessarily be apprehended and removed. App. 113–115. Rather,
the Final Memorandum directed DHS personnel to consider
non-statutory “aggravating and mitigating factors” in
deciding whether to detain an alien. Id.
, at 114–115.
It further stated that DHS “personnel should not rely on the
fact of [a qualifying] conviction” when exercising
“prosecutorial discretion.” Id
., at 115.
Thus, the Final Memorandum did not simply permit
from the statutory mandates; it flatly contradicted
mandates by stating that qualifying convictions were insufficient
grounds for initiating arrest, detention, and removal.
Texas and Louisiana challenged this Final
Memorandum in federal court under the Administrative Procedure Act
(APA). After a 2-day bench trial, the District Court found in favor
of the States and made detailed findings of fact that bear on the
issue of standing.
Much of the District Court’s analysis of
that issue focused on the Final Memorandum’s effect on the
“detainer” system, 606 F. Supp. 3d, at
459–463, and it is therefore important to understand how that
system works in relation to the relevant statutory provisions. When
an alien in state custody for a criminal offense is identified as
falling within a category of aliens whose apprehension and
detention is required by §§1226(a) and (c), the
Government should lodge a “detainer” with the State so
that the Government can take the alien into custody when he or she
is released by the State. Then, when an alien is about to be
released, a cooperative State will notify DHS so that it can be
ready to assume its obligation under §§1226(a) and (c) to
take the alien into federal custody. When that occurs, the State is
spared the burdens it would have to bear if the alien, after
release, had been placed under state law on probation, parole, or
supervised release. But if DHS rescinds a detainer before such an
alien is released (or never lodges a detainer in the first place),
those burdens fall on the State.
After reviewing the parties’ evidence, the
District Court found that in the first month after the substantive
policy change brought about by the January 2021 DHS memorandum, ICE
had rescinded 141 detainers in Texas.[3
] Ninety-five of the criminal aliens whose detainers were
rescinded were then released on a form of state supervision.
Seventeen of them went on to violate their terms of supervision,
and four committed new crimes. Id.
, at 459.
The court then examined what had taken place
during just the time “since the Final Memorandum became
effective” and found that “because of the Final
Memorandum,” “ICE ha[d] continued to rescind detainers
placed on criminal aliens in [Texas’s] custody,” and
the court identified 15 specific cases in which this had occurred.
, at 460. Rejecting the Government’s claim that
these dropped detainers were necessary in light of “limited
resources,” the court found that “the Government
. . . persistently underutilized existing detention
facilities” during the relevant time and that the average
daily detained population in April 2022 was less than 40% of the
3-year high in August 2019. Id.
, at 453, 481, 488.
Based on these findings of fact and historical
data, the District Court identified four categories of costs that
Texas had suffered and would continue to bear as a result of the
relevant DHS actions. First, the court calculated the
dollars-and-cents cost that Texas had to bear in order to supervise
criminal aliens who were released in violation of
§§1226(a), (c). Id.
, at 463. Second, it noted the
costs associated with criminal recidivism. Id.
, at 464.
Third, it found that some juvenile offenders who “are not
detained by ICE because of the Final Memorandum” will attend
Texas public schools (and at least one juvenile due to be released
will do so). Ibid.
Fourth, it concluded that the hundreds of
millions of dollars that Texas annually spends on healthcare for
illegal aliens would increase when some criminal aliens not
detained “because of the Final Memorandum” make use of
those services. Id.
, at 465.
Concluding that these costs established
Texas’s injury for standing purposes, the District Court went
on to hold that the Final Memorandum was contrary to law and that
Texas had therefore established a violation of the APA.[4
] As I will explain, it is a common
practice for courts in APA cases to set aside an improper final
agency action, and that is what the District Court did here. It
vacated the Final Memorandum pending further action by DHS,
, at 499, but it declined to issue injunctive or
declaratory relief, id.
, at 501–502.
The Government asked the Court of Appeals to
stay the District Court’s order vacating the Final
Memorandum, but that court refused to do so and observed that the
Government had not “come close” to showing
“ ‘clear error’ ” in the District
Court’s factual findings on the injuries that Texas had
already incurred and would continue to incur because of the Final
Memorandum. 40 F. 4th 205, 216–217 (CA5 2022).
Before I address the Court’s
inexplicable break from our ordinary standing analysis, I will
first explain why Texas easily met its burden to show a concrete,
particularized injury that is traceable to the Final Memorandum and
redressable by the courts. Lujan
, 504 U. S., at
Injury in fact.
Court’s factual findings, which must be accepted unless
clearly erroneous, quantified the cost of criminal supervision of
aliens who should have been held in DHS custody and also identified
other burdens that Texas had borne and would continue to bear going
forward. These findings sufficed to establish a concrete injury
that was specific to Texas. TransUnion LLC
, 594 U. S. ___, ___ (2021) (slip op., at 9);
, at 4 (conceding that such costs are “of
course an injury”).
The District Court found
that each category of cost would increase “because of
the Final Memorandum,” rather than decisions that DHS
personnel would make irrespective of the directions that memorandum
contains. 606 F. Supp. 3d, at 460, 464, 465 (emphasis
The majority does not hold—and in my
judgment, could not plausibly hold—that these findings are
clearly erroneous. Instead, it observes only that a
“State’s claim for standing can become more
attenuated” when based on the “indirect effects”
of federal policies “on state revenues or state
, at 9, n. 3. But while it is
certainly true that indirect injuries may be harder to prove, an
indirect financial injury that is
proved at trial supports
standing. And that is what happened here. As Justice Gorsuch notes,
just a few years ago, we found in a very important case that a
State had standing based in part on indirect financial injury.
, at 3 (opinion concurring in judgment) (citing
Department of Commerce
v. New York
, 588 U. S.
___, ___–___ (2019) (slip op., at 9–10)). There is no
justification for a conflicting holding here.
In any event, many of the costs in this case are
not indirect. When the Federal Government refuses or fails to
comply with §§1226(a) and (c) as to criminal aliens, the
result in many cases is that the State must continue
its supervision. As noted, the District Court made specific
findings about the financial cost that Texas incurred as a result
of DHS’s failure to assume custody of aliens covered by
§§1226(a) and (c). And the costs that a State must bear
when it is required to assume the supervision of criminal aliens
who should be kept in federal custody are not only financial.
Criminal aliens whom DHS unlawfully refuses to detain may be placed
on state probation, parole, or supervised release, and some will
commit new crimes and end up in a state jail or prison. Probation,
parole, and corrections officers are engaged in dangerous work that
can put their lives on the line.
A court order that
forecloses reliance on the memorandum would likely redress the
States’ injuries. If, as the District Court found, DHS
personnel rescind detainers “because of ” the
Final Memorandum, then vacating that memorandum would likely lead
to those detainers’ remaining in place.
While the majority does not contest
redressability, Justice Gorsuch’s concurrence does, citing
two reasons. But the first is contrary to precedent, and the second
should not be addressed in this case.
The first asserted reason is based on the
inability of the lower courts to issue a broad injunction
forbidding enforcement of the Final Memorandum. See
this case, the District Court did not issue injunctive relief.
Instead, it vacated the Final Memorandum, and Justice Gorsuch
argues that this relief did not redress Texas’s injuries
because it does not “require federal officials to change how
they exercise [their prosecutorial] discretion in the [Final
Memorandum’s] Guidelines’ absence.” Ante
at 6. There are two serious problems with this argument.
First, §1252(f )(1) bars injunctive
relief by courts “other than
the Supreme Court.”
(Emphasis added.) As a result, redress in the form of an injunction
be awarded by this Court. According to the Court’s
decision last Term in Biden
, our authority
to grant such relief “le[ft] no doubt” as to our
jurisdiction even if §1252(f )(1) precluded the lower
courts from setting aside an administrative action under the APA.
597 U. S., at ___ (slip op., at 10). We have not been asked to
revisit this holding, see id.
, at ___–___ (Barrett,
J., dissenting) (slip op., at 3–4), and I would not do so
Second, even if Biden
could be distinguished and no injunctive relief can be awarded by
any court, setting aside the Final Memorandum satisfies the
redressability requirement. Our decision in Franklin
, 505 U.S.
(1992), settles that question. There, the Court held that a
declaratory judgment regarding the lawfulness of Executive Branch
action satisfied redressability because “it [was]
substantially likely that the President and other executive
. . . officials would abide by an authoritative
interpretation” of the law “even though they would not
be directly bound by such a determination.” Id
803 (opinion of O’Connor, J.).[6
] Here, we need not speculate about how DHS officers
would respond to vacatur of the Final Memorandum because the
District Court found that the DHS personnel responsible for
detainers were rescinding them “because of ” the
Final Memorandum. 606 F. Supp. 3d, at 460. This point was
effectively conceded by the Government’s application for an
emergency stay pending our decision in this case. The Government
argued that the Final Memorandum was needed to guide prosecutorial
discretion, Application 38–39, and if the District
Court’s order were ineffectual, that would not be true. For
these reasons, the harm resulting from the Final Memorandum is
redressed by setting aside the Final Memorandum.
As to the concurrence’s second
argument—that the APA’s “set aside”
language may not permit vacatur—the concurrence acknowledges
that this would be a sea change in administrative law as currently
practiced in the lower courts. Ante
, at 16 (opinion of
Gorsuch, J.); see, e.g.
, Data Marketing Partnership,
v. United States Dept. of Labor
F. 4th 846, 859 (CA5 2022) (“The
default rule is that vacatur is the appropriate remedy” under
the APA); United Steel
v. Mine Safety and Health
, 925 F.3d 1279, 1287 (CADC 2019) (“The ordinary
practice is to vacate unlawful agency action”).[7
] We did not grant review on this very
consequential question, and I would not reach out to decide it in a
case in which Biden
resolves the issue of
To be clear, I would be less troubled than I am
today if Justice Gorsuch’s concurrence had commanded a
majority. At least then, Congress would be free to amend
§1252(f ). But the majority reaches out and redefines our
understanding of the constitutional
otherwise-available lawsuits. It is to this misunderstanding that I
The majority adopts the remarkable rule that
injuries from an executive decision not to arrest or prosecute,
even in a civil case, are generally not “cognizable.”
, at 4 (internal quotation marks omitted). Its reasoning
has three failings. First, it fails to engage with contrary
precedent that is squarely on point. Second, it lacks support in
the cases on which it relies. Third, the exceptions (or possible
exceptions) that it notes do nothing to allay concern about the
majority’s break from our established test for Article III
standing. I address each of these problems in turn.
Prior to today’s decision, it was
established law that plaintiffs who suffer a traditional injury
resulting from an agency “decision not to proceed” with
an enforcement action have Article III standing. Federal
, 524 U.S.
, 19 (1998). The obvious parallel to the case before us is
, 549 U.S.
(2007), which has been called “the most important
environmental law case ever decided by the Court.” R.
Lazarus, The Rule of Five: Making Climate History at the Supreme
Court 1 (2020). In that prior case, Massachusetts challenged the
Environmental Protection Agency’s failure to use its civil
enforcement powers to regulate greenhouse gas emissions that
allegedly injured the Commonwealth. Massachusetts argued that it
was harmed because the accumulation of greenhouse gases would lead
to higher temperatures; higher temperatures would cause the oceans
to rise; and rising sea levels would cause the Commonwealth to lose
some of its dry land. The Court noted that Massachusetts had a
“quasi-sovereign interes[t]” in avoiding the loss of
territory and that our federalist system had stripped the
Commonwealth of “certain sovereign prerogatives” that
it could have otherwise employed to defend its interests.
, 549 U. S., at 519–520. Proclaiming
that Massachusetts’ standing claim was entitled to
“special solicitude,” the Court held that the
Commonwealth had standing. Id.
, at 520.
The reasoning in that case applies with at least
equal force in the case at hand. In Massachusetts
, the Court suggested that allowing Massachusetts to
protect its sovereign interests through litigation compensated for
its inability to protect those interests by the means that would
have been available had it not entered the Union. In the present
case, Texas’s entry into the Union stripped it of the power
that it undoubtedly enjoyed as a sovereign nation to police its
borders and regulate the entry of aliens. The Constitution and
federal immigration laws have taken away most of that power, but
the statutory provisions at issue in this case afford the State at
protection—in particular by preventing the
State and its residents from bearing the costs, financial and
non-financial, inflicted by the release of certain dangerous
criminal aliens. Our law on standing should not deprive the State
of even that modest protection. We should not treat Texas less
favorably than Massachusetts. And even if we do not view
Texas’s standing argument with any “special
solicitude,” we should at least refrain from treating it with
special hostility by failing to apply our standard test for Article
Despite the clear parallel with this case and
the States’ heavy reliance on Massachusetts
their briefing, the majority can only spare a passing footnote for
that important precedent. Ante
, at 13, n. 6; see Brief for
Respondents 11, 12, 14, 16–18, 23; see also Brief for Arizona
and 17 Other States as Amici Curiae
7–12. It first
declines to say Massachusetts
was correctly decided and
references the “disagreements that some may have” with
that decision. Ante
, at 13, n. 6. But it then concludes that
“does not control” since the
decision itself refers to “ ‘key differences between a
denial of a petition for rulemaking and an agency’s decision
not to initiate an enforcement action,’ ” with the
latter “ ‘not ordinarily
subject to judicial
review.’ ” Ante
, at 13, n. 6 (quoting 549
U. S., at 527) (emphasis added).
The problem with this argument is that the
portion of Massachusetts
to which the footnote refers deals
not with its key Article III holding, but with the scope of review
that is “ordinarily” available under the statutory
scheme. Importantly, Massachusetts
frames its statement
about declining enforcement as restating the rule of Heckler
, 470 U.S.
(1985). See 549 U. S., at 527. And as the Court
acknowledges when it invokes Heckler
directly, that decision
is not about standing; it is about the interpretation of the
statutory exception to APA review for actions “committed to
agency discretion by law.” 5 U. S. C. §701(a)(2); see
470 U. S., at 823; ante
, at 11. And even in that context,
expressly contemplates that any
“presumption” of discretion to withhold enforcement can
be rebutted by an express statutory limitation of
discretion—which is exactly what we have here. 470 U. S., at
So rather than answering questions about this
case, the majority’s footnote on Massachusetts
more questions about Massachusetts
importantly, has this monumental decision been quietly interred?
, at 3 (Gorsuch, J., concurring in judgment).
is not the
only relevant precedent that the Court brushes aside. “[I]t
is well established that [this Court] has an independent obligation
to assure that standing exists, regardless of whether it is
challenged by any of the parties.” Summers
, 555 U.S.
, 499 (2009). Yet in case after case, with that obligation
in mind, we have not questioned the standing of States that brought
suit under the APA to compel civil enforcement.
In Little Sisters of the Poor Saints Peter
and Paul Home
, 591 U. S. ___
(2020), two States sued under the APA and sought to compel the
Department of Health and Human Services to cease exercising
regulatory enforcement discretion that exempted certain religious
employers from compliance with a contraceptive-coverage mandate.
, at ___–___ (slip op., at 11–12). The issue
of the States’ standing was discussed at length in the
decision below, see Pennsylvania
v. President United
, 930 F.3d 543, 561–565 (CA3 2019), and in this
Court, no Justice suggested that the Constitution foreclosed
standing simply because the States were complaining of “the
Executive Branch’s . . . enforcement choices”
regarding third parties. Ante
, at 7.
Just last Term in Biden
two States argued that their spending on the issuance of
driver’s licenses and the provision of healthcare for illegal
immigrants sufficed to establish Article III standing and thus
enabled them to sue to compel enforcement of a detain-or-return
mandate. See Texas
, 20 F. 4th 928,
970–971 (CA5 2021). The Court of Appeals held that the States
had standing, ibid
., and the majority in this Court, despite
extended engagement with other jurisdictional questions, never
hinted that Article III precluded the States’ suit. 597
U. S., at ___–___ (slip op., at 8–12).
If the new rule adopted by the Court in this
case is sound, these decisions and others like them were all just
wasted ink. I understand that what we have called
“ ‘drive-by jurisdictional
rulings’ ” are not precedents, see Arbaugh
v. Y & H Corp.
, 546 U.S.
, 511 (2006), but the Court should not use a practice of
selective silence to accept or reject prominently presented
standing arguments on inconsistent grounds.
Examination of the precedents the majority
invokes only underscores the deficiencies in its analysis.[8
] The majority says that the
“leading precedent” supporting its holding is Linda
v. Richard D.
, 410 U.S.
, at 5. But as Justice Barrett notes,
this Court has already
definitively explained that the suit
to compel prosecution in Linda R. S.
“because of the unlikelihood that the relief requested would
redress appellant’s claimed injury.” Duke Power
v. Carolina Environmental Study Group, Inc.
, 79, n. 24 (1978); see ante
, at 2 (opinion
concurring in judgment).
The Court notes in a quick parenthetical that
the “Linda R. S.
principle” was once
“cit[ed] . . . in [the] immigration context”
in Sure-Tan, Inc.
, 897 (1984), ante
, at 5. But
’s single “[c]f.” cite to Linda
provides the Court no help. 467 U. S., at 897.
only rejected (quite reasonably) any standalone
“cognizable interest in procuring enforcement of the
immigration laws” by a party who lacked any
added). And it did so, not as part of a standing analysis, but as
part of its explanation for rejecting two employers’ attempt
to assert that seeking to have employees deported as retaliation
for union activity was “an aspect of their First Amendment
right ‘to petition the Government for a redress of
grievances.’ ” Id.
, at 896.
After these two inapposite precedents, the
majority’s authority gets even weaker. I agree with Justice
Barrett that neither Heckler
, nor Castle Rock
, 545 U.S.
(2005), has real relevance here. Ante
, at 4–5.
considered the “deep-rooted nature of
law-enforcement discretion” as a tool for interpreting a
statute, not as a constitutional standing rule. 545 U. S., at
761. And as explained above, Heckler
is not about standing
and only states a presumptive rule. The Court’s remaining
authorities are likewise consistent with the understanding that
prosecution decisions are “generally
committed to an
agency’s absolute discretion” unless the relevant law
rebuts the “presumption.” Heckler
U. S., at 831 (emphasis added). For example, TransUnion
states that it is only when “unharmed plaintiffs” are
before the Court that Article III forecloses interference with the
“discretion of the Executive Branch.” 594 U. S.,
at ___ (slip op., at 13) (emphasis deleted).
In sum, all of these authorities point, not to
the majority’s new rule, but to the same ordinary questions
we ask in every case—whether the plaintiff has a concrete,
traceable, and redressable injury.
Despite the majority’s capacious
understanding of executive discretion, today’s opinion
assures the reader that the decision “do[es] not suggest that
federal courts may never entertain cases involving the Executive
Branch’s alleged failure to make more arrests or bring more
prosecutions,” despite its otherwise broad language covering
the “exercise of enforcement discretion over whether to
arrest or prosecute.” Ante
, at 5, 9. The majority
lists five categories of cases in which a court would—or at
least might—have Article III jurisdiction to entertain a
challenge to arrest or prosecution policies, but this list does
nothing to allay concern about the Court’s new path. The
Court does not identify any characteristics that are shared by all
these categories and that distinguish them from cases in which it
would not find standing. In addition, the Court is unwilling to say
that cases in four of these five categories are actually exempted
from its general rule, and the one remaining category is
exceedingly small. I will discuss these categories one by one.
, the majority distinguishes
“selective-prosecution” suits by a plaintiff “to
prevent his or her own prosecution,” ante
, at 9. But
such claims are ordinarily brought as defenses in ongoing
prosecutions, as in the cases the Court cites, and are rarely
brought in standalone actions where a plaintiff must prove
standing. This category is therefore little more than a footnote to
the Court’s general rule.
, the majority grants that
“the standing analysis might
differ when Congress
elevates de facto
injuries to the status of legally
cognizable injuries,” and it hypothesizes a situation in
which Congress “(i) specifically authorize[s] suits against
the Executive Branch by a defined set of plaintiffs who have
suffered concrete harms from executive under-enforcement and (ii)
specifically authorize[s] the Judiciary to enter appropriate orders
requiring additional arrests or prosecutions by the Executive
at 10 (emphasis added). It is puzzling
why the presence or absence of such a statute should control the
question of standing under the Constitution. We have said that the
enactment of a statute may help us to determine in marginal cases
whether an injury is sufficiently concrete and particularized to
satisfy the first prong of our three-part standing test. Spokeo,
, 578 U.S. 330, 341 (2016). But once it is
posited that a plaintiff has personally suffered a “de
” injury, i.e.
, an injury in fact, it is hard
to see why the presence or absence of a statute authorizing suit
has a bearing on the question whether the court has Article III
jurisdiction as opposed to the question whether the plaintiff has a
cause of action. In the end, however, none of this may matter
because the majority suggests that such a statute might be
, at 10, and n. 4.
, the majority tells us that the
standing outcome “might
change” if the Federal
abandoned its statutory
responsibilities,” but that statement is both equivocal and
, at 11 (emphasis added). Under what
circumstances might the Court say that the Federal Government has
“wholly abandoned” its enforcement duties? Suppose the
Federal Government announced that it would obey 80% of the
immigration laws or 70% of the environmental laws. Would the Court
say that it had “wholly abandoned” enforcement of these
bodies of law? What would happen if the Final Memorandum in this
case had directed DHS agents not to arrest anyone convicted of any
covered crime other than murder? DHS would still be enforcing the
arrest mandate as to one of the many covered crimes. Would this
only-murder policy qualify as complete abandonment? And why should
the ability of a particular party to seek legal redress for an
injury turn on the number of others harmed by the challenged
enforcement policy? Standing is assessed plaintiff by plaintiff.
The majority has no answers, and in the end, it cannot even bring
itself to commit to this complete-abandonment exception. It says
only that “the standing calculus might
” change. Ibid.
, the Court says that a plaintiff
might have standing to challenge an “Executive Branch’s
arrest or prosecution priorities and
Branch’s provision of legal benefits or legal status
. . . because the challenged policy might implicate more
than simply the Executive’s traditional enforcement
Exactly what this means is not easy
to ascertain. One possibility is that the majority is talking about
a complaint that asserts separate claims based on the grant or
denial of benefits, the grant or denial of legal status, and harms
resulting from non-enforcement of a statutory mandate. In that
event, standing with respect to each claim would have to be
analyzed separately. Another possibility is that the majority is
referring to a claim asserting that non-enforcement of a statutory
requirement requiring the arrest or prosecution of third parties
resulted in the plaintiff ’s loss of benefits or legal
status. Such a situation is not easy to imagine, and the majority
cites no case that falls within this category. But if such a case
were to arise, there is no reason why it should not be analyzed
under our standard three-pronged test.
, and finally, the majority states
that “policies governing the continued detention of
noncitizens who have already been arrested arguably might
raise a different standing question than arrest or prosecution
, at 12 (emphasis added). The majority
provides no explanation for this (noncommittal) distinction, and in
any event, as the majority acknowledges, the States in this case
challenged noncompliance with the §1231(a)(2) detention
mandate in addition to the §1226(c) arrest requirement.
, at 2, 13. The Court points to what it sees as a
“represent[ation]” by the Solicitor General that the
Final Memorandum does not affect “continued detention of
noncitizens already in federal custody.” Ante
, at 12,
n. 5. But as Justice Barrett notes, the Government argued that
when it chooses not to remove someone under the Final
Memorandum’s guidance, its mandatory detention obligation
ends—meaning it is
asserting discretion over continued
, at 3 (opinion concurring in judgment).
In any event, arrest policy cannot be divided
from detention policy in this case. When a person is arrested, he
or she is detained for at least some period of time, and under the
detainer system involved here, “arrest” often simply
means transferring an immigrant from state custody to federal
custody. As best I can tell, the majority’s distinction
between arrest and detention is made solely to avoid the obvious
inference that our decision last Term in Biden
should have dismissed the case for lack of standing,
without analyzing “the Government’s detention
obligations.” 597 U. S., at ___ (slip op., at 14).
In sum, with the exception of cases in the first
(very small) category (civil cases involving selective-prosecution
claims), the majority does not identify any category of cases that
it would definitely except from its general rule. In addition,
category two conflates the question of constitutional standing with
the question whether the plaintiff has a cause of action; category
three is hopelessly vague; category four is incomprehensible; and
category five actually encompasses the case before us.
The Court declares that its decision upholds
“[o]ur constitutional system of separation of powers,”
, at 9, but as I said at the outset, the decision
actually damages that system by improperly inflating the power of
the Executive and cutting back the power of Congress and the
authority of the Judiciary. And it renders States already laboring
under the effects of massive illegal immigration even more
Our Constitution gives the President important
powers, and the precise extent of some of them has long been the
subject of contention, but it has been widely accepted that
“the President’s power reaches ‘its lowest
ebb’ when he contravenes the express will of Congress,
‘for what is at stake is the equilibrium established by our
constitutional system.’ ” Zivotofsky
, 576 U.S. 1, 61 (2015) (Roberts, C. J., dissenting)
(quoting Youngstown Sheet & Tube Co.
, 637–638 (1952) (Jackson, J., concurring)).
That is the situation here. To put the point
simply, Congress enacted a law that requires the apprehension and
detention of certain illegal aliens whose release, it thought,
would endanger public safety. The Secretary of DHS does not agree
with that categorical requirement. He prefers a more flexible
policy. And the Court’s answer today is that the
Executive’s policy choice prevails unless Congress, by
withholding funds, refusing to confirm Presidential nominees,
threatening impeachment and removal, etc., can win a test of
strength. Relegating Congress to these disruptive measures
radically alters the balance of power between Congress and the
Executive, as well as the allocation of authority between the
Congress that enacts a law and a later Congress that must go to war
with the Executive if it wants that law to be enforced.[9
What the majority has done is to apply Oliver
Wendell Holmes’s bad-man theory of the law to the separation
of powers. Under Holmes’s theory, as popularly understood,
the law consists of those things that a bad man cannot get away
] Similarly, the
majority’s understanding of the “executive Power”
seems to be that a President can disobey statutory commands unless
Congress, by flexing its muscles, forces capitulation. That is not
the Constitution’s conception of “the executive
Power.” Art. II, §1. The Constitution, instead, requires
a President to “take Care that the Laws be faithfully
executed.” §3 (emphasis added).
Neither the Solicitor General nor the majority
has cited any support for the proposition that a President has the
power to disobey statutes that require him to take enforcement
actions, and there is strong historical evidence to the
majority’s conception of Presidential authority smacks of the
powers that English monarchs claimed prior to the “Glorious
Revolution” of 1688, namely, the power to suspend the
operation of existing statutes, and to grant dispensations from
compliance with statutes.[12
] After James II was deposed, that changed. The English
Bill of Rights of 1689 emphatically rejected “the pretended
Power of Suspending of Laws or the Execution of Laws by Rega[l]
Authority without Consent of Parl[i]ament” and “the
pretended Power of Dispensing with Laws or the Execution of Laws by
Rega[l] Authorit[y] as it ha[s] bee[n] assumed and exercised of
By the time of the American Revolution, British
monarchs had long abandoned the power to resist laws enacted by
] but the
Declaration of Independence charged George III with exercising
those powers with respect to colonial enactments. One of the
leading charges against him was that he had “forbidden his
Governors to pass Laws of immediate and pressing importance, unless
suspended in their operation till his Assent should be obtained;
and when so suspended, . . . ha[d] utterly neglected to
attend to them.”[15
By 1787, six State Constitutions contained
provisions prohibiting the suspension of laws,[16
] and at the Constitutional Convention, a
proposal to grant the President suspending authority was
Many scholars have concluded that the Take Care Clause was meant to
repudiate that authority.[18
] See 1 Works of James Wilson 399, 440 (R. McCloskey
ed. 1967) (describing Clause as providing that the President holds
“authority, not to make, or alter, or dispense with the laws,
but to execute and act the laws”).
Early decisions are inconsistent with the
understanding of Executive Power that appears to animate the
majority. In 1806, Justice Patterson, while presiding over a
criminal trial, rejected the argument that the President could
authorize the defendant to violate the law. United States
, 27 F. Cas. 1192, 1201 (No. 16,342) (CC NY 1806). He
“The president of the United States
cannot control the statute, nor dispense with its execution, and
still less can he authorize a person to do what the law forbids. If
he could, it would render the execution of the laws dependent on
his will and pleasure; which is a doctrine that has not been set
up, and will not meet with any supporters in our government. In
this particular, the law is paramount.” Id.
v. United States ex rel.
, 12 Pet. 524 (1838), the full Court rejected the
President’s claim that he had the authority to disregard a
statutory duty to pay certain sums to a government contractor:
“To contend that the obligations imposed on the President to
see the laws faithfully executed, implies a power to forbid their
execution, is a novel construction of the constitution, and is
entirely inadmissible.” Id
., at 613. This Court made
the obvious connection to the separation of powers: “vesting
in the President a dispensing power” would result in
“clothing the President with a power entirely to control the
legislation of congress, and paralyze the administration of
; see also Office of Personnel
, 496 U.S.
, 435 (1990) (White, J., concurring) (citing Kendall
to explain that the “Executive Branch does not have the
dispensing power on its own” and “should not be granted
such a power by judicial authorization”).
The original understanding of the scope of the
Executive’s prosecutorial discretion was not briefed in this
case, and I am reluctant to express a firm position on the
question. But it is indisputable that we have been provided with no
historical support for the position taken by the Solicitor General
or the majority.
* * *
This sweeping Executive Power endorsed by
today’s decision may at first be warmly received by champions
of a strong Presidential power, but if Presidents can expand their
powers as far as they can manage in a test of strength with
Congress, presumably Congress can cut executive power as much as it
can manage by wielding the formidable weapons at its disposal. That
is not what the Constitution envisions.
I end with one final observation. The majority
suggests that its decision rebuffs an effort to convince us to
“ ‘usurp’ ” the authority of the
other branches, but that is not true. Ante
, at 3. We
exercise the power conferred by Article III of the Constitution,
and we must be vigilant not to exceed the limits of our
constitutional role. But when we have jurisdiction, we have a
“virtually unflagging obligation” to exercise that
authority. Colorado River Water Conservation Dist.
, 424 U.S.
, 817 (1976). Because the majority shuns that duty, I must