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															SUPREME COURT OF THE UNITED STATES

															_________________

															No. 22–58

															_________________

															UNITED STATES, et al., PETITIONERS v. TEXAS, et al.

															on writ of certiorari before judgment to the
united states court of appeals for the fifth circuit

															[June 23, 2023]

															Justice Kavanaugh delivered the opinion of the
Court.

															In 2021, after President Biden took office, the
Department of Homeland Security issued new Guidelines for
immigration enforcement. The Guidelines prioritize the arrest and
removal from the United States of noncitizens who are suspected
terrorists or dangerous criminals, or who have unlawfully entered
the country only recently, for example. Texas and Louisiana sued
the Department of Homeland Security. According to those States, the
Department’s new Guidelines violate federal statutes that
purportedly require the Department to arrest more criminal
noncitizens pending their removal.

															The States essentially want the Federal
Judiciary to order the Executive Branch to alter its arrest policy
so as to make more arrests. But this Court has long held “that a
citizen lacks standing to contest the policies of the prosecuting
authority when he himself is neither prosecuted nor threatened with
prosecution.” Linda R. S. v. Richard D. , 410
U.S. 614 , 619 (1973). Consistent with that fundamental Article
III principle, we conclude that the States lack Article III
standing to bring this suit.

															I

															In 2021, Secretary of Homeland Security
Mayorkas promulgated new “Guidelines for the Enforcement of Civil
Immigration Law.” The Guidelines prioritize the arrest and removal
from the United States of noncitizens who are suspected terrorists
or dangerous criminals, or who have unlawfully entered the country
only recently, for example.

															Texas and Louisiana sued the Department of
Homeland Security, as well as other federal officials and agencies.
According to those States, the Guidelines contravene two federal
statutes that purportedly require the Department to arrest more
criminal noncitizens pending their removal. First, the States
contend that for certain noncitizens, such as those who are
removable due to a state criminal conviction, §1226(c) of Title 8
says that the Department “shall” arrest those noncitizens and take
them into custody when they are released from state prison. Second,
§1231(a)(2), as the States see it, provides that the Department
“shall” arrest and detain certain noncitizens for 90 days after
entry of a final order of removal.

															In the States’ view, the Department’s failure to
comply with those statutory mandates imposes costs on the States.
The States assert, for example, that they must continue to
incarcerate or supply social services such as healthcare and
education to noncitizens who should be (but are not being) arrested
by the Federal Government.

															The U. S. District Court for the Southern
District of Texas found that the States would incur costs as a
result of the Department’s Guidelines. Based on those costs, the
District Court determined that the States have standing. On the
merits, the District Court ruled that the Guidelines are unlawful,
and vacated the Guidelines. 606 F. Supp. 3d 437, 502 (SD Tex.
2022); see 5 U. S. C. §706(2). The U. S. Court of
Appeals for the Fifth Circuit declined to stay the District Court’s
judgment. 40 F. 4th 205 (2022). This Court granted certiorari
before judgment. 597 U. S. ___ (2022).

															II

															Article III of the Constitution confines the
federal judicial power to “Cases” and “Controversies.” Under
Article III, a case or controversy can exist only if a plaintiff
has standing to sue—a bedrock constitutional requirement that this
Court has applied to all manner of important disputes. See, e.g., TransUnion LLC v. Ramirez , 594
U. S. ___, ___ (2021) (slip op., at 7); California v. Texas , 593 U. S. ___, ___ (2021) (slip op., at 4); Carney v. Adams , 592 U. S. ___, ___–___ (2020)
(slip op., at 4–5); Hollingsworth v. Perry , 570 U.S.
693 , 704 (2013); Clapper v. Amnesty Int’l USA , 568 U.S.
398 , 408 (2013); Raines v. Byrd , 521 U.S.
811 , 818 (1997); Lujan v. Defenders of Wildlife , 504 U.S.
555 , 559–560 (1992); Allen v. Wright , 468 U.S.
737 , 750 (1984); Schlesinger v. Reservists Comm. to
Stop the War , 418 U.S.
208 , 215 (1974); United States v. Richardson , 418 U.S.
166 , 171 (1974).

															As this Court’s precedents amply demonstrate,
Article III standing is “not merely a troublesome hurdle to be
overcome if possible so as to reach the ‘merits’ of a lawsuit which
a party desires to have adjudicated; it is a part of the basic
charter promulgated by the Framers of the Constitution at
Philadelphia in 1787.” Valley Forge Christian College v. Americans United for Separation of Church and State, Inc. , 454 U.S.
464 , 476 (1982). The principle of Article III standing is
“built on a single basic idea—the idea of separation of powers.” Allen , 468 U. S., at 752. Standing doctrine helps
safeguard the Judiciary’s proper—and properly limited—role in our
constitutional system. By ensuring that a plaintiff has standing to
sue, federal courts “prevent the judicial process from being used
to usurp the powers of the political branches.” Clapper , 568
U. S., at 408.

															A

															According to Texas and Louisiana, the arrest
policy spelled out in the Department of Homeland Security’s 2021
Guidelines does not comply with the statutory arrest mandates in
§1226(c) and §1231(a)(2). The States want the Federal Judiciary to
order the Department to alter its arrest policy so that the
Department arrests more noncitizens.[ 1 ]

															The threshold question is whether the States
have standing under Article III to maintain this suit. The answer
is no.

															To establish standing, a plaintiff must show an
injury in fact caused by the defendant and redressable by a court
order. See Lujan , 504 U. S., at 560–561. The District
Court found that the States would incur additional costs because
the Federal Government is not arresting more noncitizens. Monetary
costs are of course an injury. But this Court has “also stressed
that the alleged injury must be legally and judicially cognizable.” Raines , 521 U. S., at 819. That “requires, among other
things,” that the “dispute is traditionally thought to be capable
of resolution through the judicial process”—in other words, that
the asserted injury is traditionally redressable in federal court. Ibid. (internal quotation marks omitted); accord Valley
Forge , 454 U. S., at 472. In adhering to that core
principle, the Court has examined “history and tradition,” among
other things, as “a meaningful guide to the types of cases that
Article III empowers federal courts to consider.” Sprint
Communications Co. v. APCC Services, Inc. , 554 U.S.
269 , 274 (2008); see TransUnion LLC , 594 U. S., at
___–___ (slip op., at 8–9).

															The States have not cited any precedent,
history, or tradition of courts ordering the Executive Branch to
change its arrest or prosecution policies so that the Executive
Branch makes more arrests or initiates more prosecutions. On the
contrary, this Court has previously ruled that a plaintiff lacks
standing to bring such a suit.

															The leading precedent is Linda R. S. v. Richard D. , 410 U.S.
614 (1973). The plaintiff in that case contested a State’s
policy of declining to prosecute certain child-support violations.
This Court decided that the plaintiff lacked standing to challenge
the State’s policy, reasoning that in “American jurisprudence at
least,” a party “lacks a judicially cognizable interest in the
prosecution . . . of another.” Id . , at 619.
The Court concluded that “a citizen lacks standing to contest the
policies of the prosecuting authority when he himself is neither
prosecuted nor threatened with prosecution.” Ibid. The Court’s Article III holding in Linda
R. S. applies to challenges to the Executive Branch’s
exercise of enforcement discretion over whether to arrest or
prosecute. See id., at 617, 619; Castle Rock v. Gonzales , 545 U.S.
748 , 760–761, 767, n. 13 (2005); cf. Sure-Tan, Inc. v. NLRB , 467 U.S.
883 , 897 (1984) (citing Linda R. S. principle in
immigration context and stating that the petitioners there had “no
judicially cognizable interest in procuring enforcement of the
immigration laws” by the Executive Branch). And importantly, that
Article III standing principle remains the law today; the States
have pointed to no case or historical practice holding otherwise. A
“telling indication of the severe constitutional problem” with the
States’ assertion of standing to bring this lawsuit “is the lack of
historical precedent” supporting it. Free Enterprise Fund v. Public Company Accounting Oversight Bd. , 561 U.S.
477 , 505 (2010) (internal quotation marks omitted); see also Raines , 521 U. S., at 826 (“Not only do appellees lack
support from precedent, but historical practice appears to cut
against them as well”).

															In short, this Court’s precedents and
longstanding historical practice establish that the States’ suit
here is not the kind redressable by a federal court.

															B

															Several good reasons explain why, as Linda
R. S. held, federal courts have not traditionally
entertained lawsuits of this kind.

															To begin with, when the Executive Branch elects not to arrest or prosecute, it does not exercise coercive
power over an individual’s liberty or property, and thus does not
infringe upon interests that courts often are called upon to
protect. See Lujan , 504 U. S., at 561–562. And for
standing purposes, the absence of coercive power over the plaintiff
makes a difference: When “a plaintiff ’s asserted injury
arises from the government’s allegedly unlawful regulation (or lack
of regulation) of someone else, much more is needed” to establish
standing. Id., at 562 (emphasis deleted).[ 2 ]

															Moreover, lawsuits alleging that the Executive
Branch has made an insufficient number of arrests or brought an
insufficient number of prosecutions run up against the Executive’s
Article II authority to enforce federal law. Article II of the
Constitution assigns the “executive Power” to the President and
provides that the President “shall take Care that the Laws be
faithfully executed.” U. S. Const., Art. II, §1,
cl. 1; §3. Under Article II, the Executive Branch possesses
authority to decide “how to prioritize and how aggressively to
pursue legal actions against defendants who violate the law.” TransUnion LLC , 594 U. S., at ___ (slip op., at 13);
see Lujan , 504 U. S., at 576–578; Allen , 468
U. S., at 760–761. The Executive Branch—not the
Judiciary—makes arrests and prosecutes offenses on behalf of the
United States. See United States v. Nixon , 418 U.S.
683 , 693 (1974) (“the Executive Branch has exclusive authority
and absolute discretion to decide whether to prosecute a case”); Printz v. United States , 521
U.S. 898 , 922–923 (1997) (Brady Act provisions held
unconstitutional because, among other things, they transferred
power to execute federal law to state officials); United
States v. Armstrong , 517 U.S.
456 , 464 (1996) (decisions about enforcement of “the Nation’s
criminal laws” lie within the “special province of the Executive”
(internal quotation marks omitted)); Buckley v. Valeo , 424 U.S.
1 , 138 (1976) (“A lawsuit is the ultimate remedy for a breach
of the law, and it is to the President, and not to the Congress,
that the Constitution entrusts the responsibility to ‘take Care
that the Laws be faithfully executed’ ” (quoting U. S.
Const., Art. II, §3)); see also United States v. Cox , 342 F.2d 167, 171 (CA5 1965).

															That principle of enforcement discretion over
arrests and prosecutions extends to the immigration context, where
the Court has stressed that the Executive’s enforcement discretion
implicates not only “normal domestic law enforcement priorities”
but also “foreign-policy objectives.” Reno v. American-Arab Anti-Discrimination Comm. , 525 U.S.
471 , 490–491 (1999). In line with those principles, this Court
has declared that the Executive Branch also retains discretion over
whether to remove a noncitizen from the United States. Arizona v. United States , 567
U.S. 387 , 396 (2012) (“Federal officials, as an initial matter,
must decide whether it makes sense to pursue removal at all”).

															In addition to the Article II problems raised by
judicial review of the Executive Branch’s arrest and prosecution
policies, courts generally lack meaningful standards for assessing
the propriety of enforcement choices in this area. After all, the
Executive Branch must prioritize its enforcement efforts. See Wayte v. United States , 470 U.S.
598 , 607–608 (1985). That is because the Executive Branch (i)
invariably lacks the resources to arrest and prosecute every
violator of every law and (ii) must constantly react and adjust to
the ever-shifting public-safety and public-welfare needs of the
American people.

															This case illustrates the point. As the District
Court found, the Executive Branch does not possess the resources
necessary to arrest or remove all of the noncitizens covered by
§1226(c) and §1231(a)(2). That reality is not an anomaly—it is a
constant. For the last 27 years since §1226(c) and §1231(a)(2) were
enacted in their current form, all five Presidential
administrations have determined that resource constraints
necessitated prioritization in making immigration arrests.

															In light of inevitable resource constraints and
regularly changing public-safety and public-welfare needs, the
Executive Branch must balance many factors when devising arrest and
prosecution policies. That complicated balancing process in turn
leaves courts without meaningful standards for assessing those
policies. Cf. Heckler v. Chaney , 470 U.S.
821 , 830–832 (1985); Lincoln v. Vigil , 508 U.S.
182 , 190–192 (1993). Therefore, in both Article III cases and
Administrative Procedure Act cases, this Court has consistently
recognized that federal courts are generally not the proper forum
for resolving claims that the Executive Branch should make more
arrests or bring more prosecutions. See Linda R. S. ,
410 U. S., at 619; cf. Heckler , 470 U. S., at 831
(recognizing the “general unsuitability for judicial review of
agency decisions to refuse enforcement”); ICC v. Locomotive Engineers , 482 U.S.
270 , 283 (1987) (“it is entirely clear that the refusal to
prosecute cannot be the subject of judicial review”).[ 3 ]

															All of those considerations help explain why
federal courts have not traditionally entertained lawsuits of this
kind. By concluding that Texas and Louisiana lack standing here, we
abide by and reinforce the proper role of the Federal Judiciary
under Article III. The States’ novel standing argument, if
accepted, would entail expansive judicial direction of the
Department’s arrest policies. If the Court green-lighted this suit,
we could anticipate complaints in future years about alleged
Executive Branch under-enforcement of any similarly worded
laws—whether they be drug laws, gun laws, obstruction of justice
laws, or the like. We decline to start the Federal Judiciary down
that uncharted path. Our constitutional system of separation of
powers “contemplates a more restricted role for Article III
courts.” Raines , 521 U. S., at 828.

															C

															In holding that Texas and Louisiana lack
standing, we do not suggest that federal courts may never entertain
cases involving the Executive Branch’s alleged failure to make more
arrests or bring more prosecutions. First , the Court has adjudicated
selective-prosecution claims under the Equal Protection Clause. In
those cases, however, a party typically seeks to prevent his or her
own prosecution, not to mandate additional prosecutions against
other possible defendants. See, e.g., Wayte , 470
U. S., at 604; Armstrong , 517 U. S., at 459,
463. Second , as the Solicitor General points
out, the standing analysis might differ when Congress elevates de facto injuries to the status of legally cognizable
injuries redressable by a federal court. See Brief for Petitioners
20, n. 3; cf. TransUnion LLC , 594 U. S., at
___–___ (slip op., at 10–11); Federal Election Comm’n v. Akins , 524 U.S.
11 , 20 (1998); Raines , 521 U. S., at 820,
n. 3; Lujan , 504 U. S., at 578; Linda
R. S. , 410 U. S., at 617, n. 3. For
example, Congress might (i) specifically authorize suits against
the Executive Branch by a defined set of plaintiffs who have
suffered concrete harms from executive under-enforcement and (ii)
specifically authorize the Judiciary to enter appropriate orders
requiring additional arrests or prosecutions by the Executive
Branch.

															Here, however, the relevant statutes do not
supply such specific authorization. The statutes, even under the
States’ own reading, simply say that the Department “shall” arrest
certain noncitizens. Given the “deep-rooted nature of
law-enforcement discretion,” a purported statutory arrest mandate,
without more, does not entitle any particular plaintiff to enforce
that mandate in federal court. Castle Rock , 545 U. S.,
at 761, 764–765, 767, n. 13; cf. Heckler , 470 U. S., at
835. For an arrest mandate to be enforceable in federal court, we
would need at least a “stronger indication” from Congress that
judicial review of enforcement discretion is appropriate—for
example, specific authorization for particular plaintiffs to sue
and for federal courts to order more arrests or prosecutions by the
Executive. Castle Rock , 545 U. S., at 761. We do not
take a position on whether such a statute would suffice for Article
III purposes; our only point is that no such statute is present in
this case.[ 4 ] Third , the standing calculus might change
if the Executive Branch wholly abandoned its statutory
responsibilities to make arrests or bring prosecutions. Under the
Administrative Procedure Act, a plaintiff arguably could obtain
review of agency non-enforcement if an agency “has consciously and
expressly adopted a general policy that is so extreme as to amount
to an abdication of its statutory responsibilities.” Heckler , 470 U. S., at 833, n. 4 (internal
quotation marks omitted); see id., at 839 (Brennan, J.,
concurring); cf. 5 U. S. C. §706(1). So too, an extreme
case of non-enforcement arguably could exceed the bounds of
enforcement discretion and support Article III standing. But the
States have not advanced a Heckler -style “abdication”
argument in this case or argued that the Executive has entirely
ceased enforcing the relevant statutes. Therefore, we do not
analyze the standing ramifications of such a hypothetical
scenario. Fourth , a challenge to an Executive
Branch policy that involves both the Executive Branch’s arrest or
prosecution priorities and the Executive Branch’s provision
of legal benefits or legal status could lead to a different
standing analysis. That is because the challenged policy might
implicate more than simply the Executive’s traditional enforcement
discretion. Cf. Department of Homeland Security v. Regents of Univ. of Cal. , 591 U. S. ___, ___–___ (2020)
(slip op., at 11–12) (benefits such as work authorization and
Medicare eligibility accompanied by non-enforcement meant that the
policy was “more than simply a non-enforcement policy”); Texas v. United States , 809 F.3d 134, 154 (CA5 2015)
( Linda R. S. “concerned only nonprosecution,” which is
distinct from “both nonprosecution and the conferral of benefits”),
aff ’d by an equally divided Court, 579 U.S. 547 (2016).
Again, we need not resolve the Article III consequences of such a
policy. Fifth , policies governing the continued
detention of noncitizens who have already been arrested arguably
might raise a different standing question than arrest or
prosecution policies. Cf. Biden v. Texas , 597
U. S. ___ (2022). But this case does not concern a detention
policy, so we do not address the issue here.[ 5 ]

															D

															The discrete standing question raised by this
case rarely arises because federal statutes that purport to require the Executive Branch to make arrests or bring
prosecutions are rare—not surprisingly, given the Executive’s
Article II authority to enforce federal law and the deeply rooted
history of enforcement discretion in American law. Indeed, the
States cite no similarly worded federal laws. This case therefore
involves both a highly unusual provision of federal law and a
highly unusual lawsuit.

															To be clear, our Article III decision today
should in no way be read to suggest or imply that the Executive
possesses some freestanding or general constitutional authority to
disregard statutes requiring or prohibiting executive action.
Moreover, the Federal Judiciary of course routinely and
appropriately decides justiciable cases involving statutory
requirements or prohibitions on the Executive. See, e.g., American Hospital Assn. v. Becerra , 596 U. S.
___, ___–___ (2022) (slip op., at 9–14); Weyerhaeuser Co. v. United States Fish and Wildlife Serv. , 586 U. S. ___,
___–___ (2018) (slip op., at 8–15); Zivotofsky v. Clinton , 566 U.S.
189 , 196–201 (2012); Hamdan v. Rumsfeld , 548 U.S.
557 , 592–595, 613–615, 635 (2006); id., at 636–646
(Kennedy, J., concurring); Youngstown Sheet & Tube Co. v. Sawyer , 343 U.S.
579 , 637–638, 640 (1952) (Jackson, J., concurring).

															This case is categorically different, however,
because it implicates only one discrete aspect of the executive
power—namely, the Executive Branch’s traditional discretion over
whether to take enforcement actions against violators of federal
law. And this case raises only the narrow Article III standing
question of whether the Federal Judiciary may in effect order the
Executive Branch to take enforcement actions against violators of
federal law—here, by making more arrests. Under this Court’s
Article III precedents and the historical practice, the answer is
no.[ 6 ]

															It bears emphasis that the question of whether
the federal courts have jurisdiction under Article III is distinct
from the question of whether the Executive Branch is complying with
the relevant statutes—here, §1226(c) and §1231(a)(2). In other
words, the question of reviewability is different from the question
of legality. We take no position on whether the Executive Branch
here is complying with its legal obligations under §1226(c) and
§1231(a)(2). We hold only that the federal courts are not the
proper forum to resolve this dispute.

															On that point, even though the federal courts
lack Article III jurisdiction over this suit, other forums remain
open for examining the Executive Branch’s arrest policies. For
example, Congress possesses an array of tools to analyze and
influence those policies—oversight, appropriations, the legislative
process, and Senate confirmations, to name a few. Cf. Raines , 521 U. S., at 829; Lincoln , 508
U. S., at 193. And through elections, American voters can both
influence Executive Branch policies and hold elected officials to
account for enforcement decisions. In any event, those are
political checks for the political process. We do not opine on
whether any such actions are appropriate in this instance.

															The Court’s standing decision today is narrow
and simply maintains the longstanding jurisprudential status quo.
See Linda R. S. , 410 U. S., at 619. The Court’s
decision does not alter the balance of powers between Congress and
the Executive, or change the Federal Judiciary’s traditional role
in separation of powers cases.

															*  *  *

															In sum, the States have brought an
extraordinarily unusual lawsuit. They want a federal court to order
the Executive Branch to alter its arrest policies so as to make
more arrests. Federal courts have not traditionally entertained
that kind of lawsuit; indeed, the States cite no precedent for a
lawsuit like this. The States lack Article III standing because
this Court’s precedents and the “historical experience” preclude
the States’ “attempt to litigate this dispute at this time and in
this form.” Raines , 521 U. S., at 829. And because the
States lack Article III standing, the District Court did not have
jurisdiction. We reverse the judgment of the District Court.

															It is so ordered. Notes 1 The States may want the
Department to arrest all of the noncitizens it is now
arresting plus other noncitizens—or instead to arrest some of the noncitizens it is now arresting plus other noncitizens.
Either way, the States seek a court order that would alter the
Department’s arrest policy so that the Department arrests more
noncitizens. 2 By contrast, when “the
plaintiff is himself an object of the action (or forgone action) at
issue,” “there is ordinarily little question that the action or
inaction has caused him injury, and that a judgment preventing or
requiring the action will redress it.” Lujan , 504
U. S., at 561–562. 3 Also, the plaintiffs here
are States, and federal courts must remain mindful of bedrock
Article III constraints in cases brought by States against an
executive agency or officer. To be sure, States sometimes have
standing to sue the United States or an executive agency or
officer. See, e.g., New York v. United States , 505 U.S.
144 (1992). But in our system of dual federal and state
sovereignty, federal policies frequently generate indirect effects
on state revenues or state spending. And when a State asserts, for
example, that a federal law has produced only those kinds of
indirect effects, the State’s claim for standing can become more
attenuated. See Massachusetts v. Laird , 400 U.S.
886 (1970); Florida v. Mellon , 273 U.S.
12 , 16–18 (1927); cf. Lujan , 504 U. S., at 561–562.
In short, none of the various theories of standing asserted by the
States in this case overcomes the fundamental Article III problem
with this lawsuit. 4 As the Solicitor General
noted, those kinds of statutes, by infringing on the Executive’s
enforcement discretion, could also raise Article II issues. See Tr.
of Oral Arg. 24–25. 5 This case concerns only
arrest and prosecution policies, and we therefore address only that
issue. As to detention, the Solicitor General has represented that
the Department’s Guidelines do not affect continued detention of
noncitizens already in federal custody. See Brief for Petitioners
24; Tr. of Oral Arg. 40 (Solicitor General: “the Guidelines govern
only decisions about apprehension and removal, whether to charge a
non-citizen in the first place. . . . the Guidelines
don’t have anything to do with continued detention”); Guidelines
Memorandum, App. 111 (“This memorandum provides guidance for the
apprehension and removal of noncitizens”); id., at 113 (“We
will prioritize for apprehension and removal noncitizens who are a
threat to our national security, public safety, and border
security”). 6 As part of their argument
for standing, the States also point to Massachusetts v. EPA , 549 U.S.
497 (2007). Putting aside any disagreements that some may have
with Massachusetts v. EPA , that decision does not
control this case. The issue there involved a challenge to the
denial of a statutorily authorized petition for rulemaking, not a
challenge to an exercise of the Executive’s enforcement discretion. Id., at 520, 526; see also id., at 527 (noting that
there are “key differences between a denial of a petition for
rulemaking and an agency’s decision not to initiate an enforcement
action” and that “an agency’s refusal to initiate enforcement
proceedings is not ordinarily subject to judicial
review”). SUPREME COURT OF THE UNITED STATES

															_________________

															No. 22–58

															_________________

															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 23, 2023]

															Justice Gorsuch, with whom Justice Thomas and
Justice Barrett join, concurring in the judgment.

															The Court holds that Texas and Louisiana lack
Article III standing to challenge the Department of Homeland
Security’s Guidelines for the Enforcement of Civil Immigration Law.
I agree. But respectfully, I diagnose the jurisdictional defect
differently. The problem here is redressability.

															I

															Article III vests federal courts with the
power to decide “Cases” and “Controversies.” Standing doctrine
honors the limitations inherent in this assignment by ensuring
judges attend to actual harms rather than abstract grievances. “If
individuals and groups could invoke the authority of a federal
court to forbid what they dislike for no more reason than they
dislike it, we would risk exceeding the judiciary’s limited
constitutional mandate and infringing on powers committed to other
branches of government.” American Legion v. American
Humanist Assn ., 588 U. S. ___, ___ (2019) (Gorsuch, J.,
concurring in judgment) (slip op., at 3).

															To establish standing to sue in federal court, a
plaintiff must show that it has suffered a concrete and
particularized injury, one that is both traceable to the defendant
and redressable by a court order. See Lujan v. Defenders
of Wildlife , 504 U.S.
555 , 560–561 (1992). If a plaintiff fails at any step, the
court cannot reach the merits of the dispute. See Steel Co. v. Citizens for Better Environment , 523 U.S.
83 , 102–104 (1998). This is true whether the plaintiff is a
private person or a State. After all, standing doctrine derives
from Article III, and nothing in that provision suggests a State
may have standing when a similarly situated private party does not.
See Massachusetts v. EPA , 549
U.S. 497 , 536–538 (2007) (Roberts, C. J., dissenting).

															The Court holds that Texas and Louisiana lack
standing to challenge the Guidelines because “a party lacks a
judicially cognizable interest in the prosecution . . .
of another.” Ante , at 5 (internal quotation marks omitted).
To be sure, the district court found that the Guidelines have led
to an increase in the number of aliens with criminal convictions
and final orders of removal who are released into the States. 606
F. Supp. 3d 437, 459–463, 467 (SD Tex. 2022). The district
court also found that, thanks to this development, the States have
spent, and continue to spend, more money on law enforcement,
incarceration, and social services. Id., at 463–465, 467.
Still, the Court insists, “[s]everal good reasons explain why”
these harms are insufficient to afford the States standing to
challenge the Guidelines. Ante , at 6.

															I confess to having questions about each of the
reasons the Court offers. Start with its observation that the
States have not pointed to any “historical practice” of courts
ordering the Executive Branch to change its arrest or prosecution
policies. Ante , at 5, 6. The Court is right, of course, that
“history and tradition offer a meaningful guide to the types of
cases that Article III empowers federal courts to consider.” TransUnion LLC v. Ramirez , 594 U. S. ___, ___
(2021) (slip op., at 8) (internal quotation marks omitted). But,
again, the district court found that the Guidelines impose
“significant costs” on the States. 606 F. Supp. 3d, at 495.
The Court today does not set aside this finding as clearly
erroneous. Nor does anyone dispute that even one dollar’s worth of
harm is traditionally enough to “qualify as concrete injur[y] under
Article III.” TransUnion , 594 U. S., at ___ (slip op.,
at 9); see also Uzuegbunam v. Preczewski , 592
U. S. ___, ___ (2021) (slip op., at 11). Indeed, this Court
has allowed other States to challenge other Executive Branch
policies that indirectly caused them monetary harms. See, e.g., Department of Commerce v. New York , 588
U. S. ___, ___–___ (2019) (slip op., at 9–10). So why are
these States now forbidden from doing the same?

															Next, the Court contends that, “when the
Executive Branch elects not to arrest or prosecute, it does
not exercise coercive power over an individual’s liberty or
property.” Ante , at 6. Here again, in principle, I agree.
But if an exercise of coercive power matters so much to the Article
III standing inquiry, how to explain decisions like Massachusetts v. EPA ? There the Court held that
Massachusetts had standing to challenge the federal government’s
decision not to regulate greenhouse gas emissions from new motor
vehicles. See 549 U. S., at 516–526. And what could be less
coercive than a decision not to regulate? In Massachusetts v. EPA , the Court chose to overlook this difficulty in part
because it thought the State’s claim of standing deserved “special
solicitude.” Id., at 520. I have doubts about that move.
Before Massachusetts v. EPA , the notion that States
enjoy relaxed standing rules “ha[d] no basis in our jurisprudence.” Id. , at 536 (Roberts, C. J., dissenting). Nor has
“special solicitude” played a meaningful role in this Court’s
decisions in the years since. Even so, it’s hard not to wonder why
the Court says nothing about “special solicitude” in this case. And
it’s hard not to think, too, that lower courts should just leave
that idea on the shelf in future ones.

															Finally, the Court points to the fact that
Article II vests in the President considerable enforcement
discretion. Ante , at 6–8. So much so that “courts generally
lack meaningful standards for assessing the propriety of [the
Executive Branch’s] enforcement choices.” Ante , at 7. But
almost as soon as the Court announces this general rule, it adds a
caveat, stressing that “[t]his case concerns only arrest and
prosecution policies.” Ante, at 12, n. 5. It’s a
curious qualification. Article II does not have an Arrest and
Prosecution Clause. It endows the President with the “executive
Power,” §1, cl. 1, and charges him with “tak[ing] Care” that
federal laws are “faithfully executed,” §3. These provisions give
the President a measure of discretion over the enforcement of all federal laws, not just those that can lead to arrest and
prosecution. So if the Court means what it says about Article II,
can it mean what it says about the narrowness of its holding?
There’s another curious qualification in the Court’s opinion too.
“[T]he standing calculus might change,” we are told, “if the
Executive Branch wholly abandoned its statutory responsibilities to
make arrests or bring prosecutions.” Ante , at 11. But the
Court declines to say more than that because “the States have not
advanced” such an argument. Ibid. Is that true, though? The
States have pleaded a claim under the Take Care Clause. App. 106.
Is that not an abdication argument? Did they fail to plead it
properly? Or is the Court simply ignoring it?

															II

															As I see it, the jurisdictional problem the
States face in this case isn’t the lack of a “judicially
cognizable” interest or injury. Ante, at 5 (internal
quotation marks omitted). The States proved that the Guidelines
increase the number of aliens with criminal convictions and final
orders of removal released into the States. They also proved that,
as a result, they spend more money on everything from law
enforcement to healthcare. The problem the States face concerns
something else altogether—a lack of redressability.

															To establish redressability, a plaintiff must
show from the outset of its suit that its injuries are capable of
being remedied “ ‘by a favorable decision.’ ” Lujan , 504 U. S., at 561; see also id., at 570,
n. 5 (plurality opinion). Ordinarily, to remedy harms like
those the States demonstrated in this suit, they would seek an
injunction. The injunction would direct federal officials to detain
aliens consistent with what the States say the immigration laws
demand. But even assuming an injunction like that would redress the
States’ injuries, that form of relief is not available to them.

															It is not available because of 8
U. S. C. §1252(f )(1). There, Congress provided that
“no court (other than the Supreme Court) shall have jurisdiction or
authority to enjoin or restrain the operation of ” certain
immigration laws, including the very laws the States seek to have
enforced in this case. If there were any doubt about how to
construe this command, we resolved it in Garland v. Aleman Gonzalez , 596 U. S. ___ (2022). In that case, we
held that §1252(f )(1) “prohibits lower courts from
. . . order[ing] 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). Put simply, the remedy that would ordinarily have the best
chance of redressing the States’ harms is a forbidden one in this
case.

															The district court thought it could sidestep
§1252(f )(1). Instead of issuing an injunction, it purported
to “vacate” the Guidelines pursuant to §706(2) of the
Administrative Procedure Act (APA), 5 U. S. C. §706(2).
606 F. Supp. 3d, at 498–501, and n. 71. Vacatur, as the
district court understood it, is a distinct form of relief that
operates directly on agency action, depriving it of legal force or
effect. See id. , at 499–500 . And vacatur, the
district court reasoned, does not offend §1252(f )(1), because
it does not entail an order directing any federal official to do
anything. See id., at 501, n. 71. The States embrace
this line of argument before us. Brief for Respondents 43–47; Tr.
of Oral Arg. 75–82.

															It’s a clever workaround, but it doesn’t
succeed. Start with perhaps the simplest reason. Assume for the
moment the district court was right that §1252(f )(1) does not
bar vacatur orders and that §706(2) authorizes courts to issue
them. Even so, a vacatur order still does nothing to redress the
States’ injuries. The Guidelines merely advise federal officials
about how to exercise their prosecutorial discretion when it comes
to deciding which aliens to prioritize for arrest and removal. A
judicial decree rendering the Guidelines a nullity does nothing to
change the fact that federal officials possess the same underlying
prosecutorial discretion. Nor does such a decree require federal
officials to change how they exercise that discretion in the
Guidelines’ absence. It’s a point even the States have
acknowledged. Tr. of Oral Arg. 82–83; see also id., at
75–77, 125.

															Faced with that difficulty, the States offer
this reply. As a practical matter, they say, we can expect federal
officials to alter their arrest and prosecution priorities in light
of a judicial opinion reasoning that the Guidelines are unlawful.
See id., at 80, 82–83. But this doesn’t work either.
Whatever a court may say in an opinion does no more to compel
federal officials to change how they exercise their prosecutorial
discretion than an order vacating the Guidelines. Nor do we measure
redressability by asking whether a court’s legal reasoning may
inspire or shame others into acting differently. We measure
redressability by asking whether a court’s judgment will remedy the
plaintiff ’s harms. As this Court recently put it: “It is a
federal court’s judgment, not its opinion, that remedies an injury;
thus it is the judgment, not the opinion, that demonstrates
redressability.” Haaland v. Brackeen , 599 U. S.
___, ___ (2023) (slip op., at 32). If the rule were otherwise, and
courts could “simply assume that everyone . . . will
honor the legal rationales that underlie their decrees, then
redressability [would] always exist.” Franklin v. Massachusetts , 505 U.S.
788 , 825 (1992) (Scalia, J., concurring in part and concurring
in judgment).

															Perhaps sensing they have run into yet another
roadblock, the States try one last way around it. Fleetingly, they
direct us to the parenthetical in §1252(f)(1): “(other than the
Supreme Court).” That language, they say, allows this Court to
invoke the All Writs Act, 28 U. S. C. §1651, to fashion
its own injunction. And the possibility that this Court might award
them relief, the States suggest, makes their injuries redressable
after all. See Brief for Respondents 47; cf. post, at 12
(Alito, J., dissenting).

															It’s an argument that yields more questions than
answers. The parenthetical the States cite is a “curious”
provision, one that “does not appear to have an analogue elsewhere
in the United States Code.” Biden v. Texas , 597
U. S. ___, ___ (2022) (Barrett, J., dissenting) (slip op., at
4). Even assuming it permits this Court to award an injunction when
a case comes to us on review, it does not obviously solve the
States’ redressability problem. Normally, after all, a plaintiff
must establish redressability from the outset of the suit. See Lujan , 504 U. S., at 561; see also id., at 570,
n. 5 (plurality opinion). Not only that, a plaintiff must show
a favorable decision is “ ‘likely’ ” to provide effectual
relief. Id., at 561. When the States filed this suit,
however, the possibility that it might find its way to this Court
was speculative at best. See id. , at 570, n. 5
(plurality opinion) (rejecting an argument that redressability
could depend on “the fortuity that [a] case has made its way to this Court”).

															Nor is that the only complication. Ordinarily,
to win an injunction from any court, a party must satisfy several
factors. See eBay Inc. v. MercExchange,
L. L. C. , 547 U.S.
388 , 391 (2006). The States relegate any mention of these
factors to a short, formulaic paragraph tacked onto the end of
their brief. See Brief for Respondents 48. Worse, the only
injunction they seek is one barring “implementation and
enforcement” of the Guidelines—essentially an injunction imitating
a vacatur order. Id ., at 47. And as we have seen, an order
like that would leave officials with their prosecutorial discretion
intact. See supra, at 6. So, even if this Court were to take
the unusual step of issuing and superintending its own injunction,
giving the States the very order they seek is hardly sure to
redress the injuries they assert.

															III

															Beyond these redressability problems may lie
still another. Recall the essential premise on which the district
court proceeded—that the APA empowers courts to vacate agency
action. The federal government vigorously disputes this premise,
arguing that the law does not contemplate this form of relief. The
reasons the government offers are plenty and serious enough to
warrant careful consideration.

															A

															Traditionally, when a federal court finds a
remedy merited, it provides party-specific relief, directing the
defendant to take or not take some action relative to the
plaintiff. If the court’s remedial order affects nonparties, it
does so only incidentally. See, e.g., Doran v. Salem Inn, Inc. , 422 U.S.
922 , 931 (1975) (“[N]either declaratory nor injunctive relief
can directly interfere with the enforcement of contested statutes
or ordinances except with respect to the particular federal
plaintiffs.”); Alemite Mfg. Corp. v. Staff , 42 F.2d
832 (CA2 1930) (L. Hand, J.) (“[A] court of equity . . .
cannot lawfully enjoin the world at large.”); see also Trump v. Hawaii , 585 U. S. ___, ___ (2018) (Thomas, J.,
concurring) (slip op., at 6). This tracks the founding-era
understanding that courts “render a judgment or decree upon the
rights of the litigant[s].” Rhode Island v. Massachusetts , 12 Pet. 657, 718 (1838). It also ensures that
federal courts respect the limits of their Article III authority to
decide cases and controversies and avoid trenching on the power of
the elected branches to shape legal rights and duties more broadly.
After all, the “judicial Power” is the power to “decide cases for
parties, not questions for everyone.” S. Bray, Multiple
Chancellors: Reforming the National Injunction, 131 Harv.
L. Rev. 417, 421 (2017).

															Despite these foundational principles, in recent
years a number of lower courts have asserted the authority to issue
decrees that purport to define the rights and duties of sometimes
millions of people who are not parties before them. Three years
ago, I reflected on the rise of the “universal injunctio[n]” and
raised questions about its consistency with the separation of
powers and our precedents. Department of Homeland Security v. New York , 589 U. S. ___, ___ (2020) (opinion
concurring in grant of stay) (slip op., at 3). I observed, too,
that “the routine issuance of universal injunctions” has proven
“unworkable, sowing chaos for litigants, the government, courts,
and all those affected by these [sometimes] conflicting” decrees. Ibid .

															Matters have not improved with time. Universal
injunctions continue to intrude on powers reserved for the elected
branches. They continue to deprive other lower courts of the chance
to weigh in on important questions before this Court has to decide
them. They continue to encourage parties to engage in forum
shopping and circumvent rules governing class-wide relief. Recent
events have highlighted another problem too. Sometimes, the
government may effectively submit to a universal decree running
against it in order to avoid “the usual and important requirement,
under the [APA], that a regulation originally promulgated using
notice and comment . . . may only be repealed through
notice and comment.” Arizona v. City and County of San
Francisco , 596 U. S. ___, ___ (2022) (Roberts, C. J.,
concurring) (slip op., at 2). It is a strategy that amounts to
little more than
“ ‘rulemaking-by-collective-acquiescence.’ ” Ibid. ; see also Danco Laboratories, LLC v. Alliance for Hippocratic Medicine , 598 U. S. ___, ___
(2023) (Alito, J., dissenting from grant of application for stays)
(slip op., at 3); Arizona v. Mayorkas , 598 U. S.
___, ___–___ (2023) (statement of Gorsuch, J.) (slip op., at
1–4).

															Today’s case presents a variation on the theme.
The district court ordered “wholesale vacatur” of the Guidelines,
rendering them inoperable with respect to any person anywhere. 606
F. Supp. 3d, at 499, 502. As authority for its course, the
district court cited §706(2) of the APA. That provision does not
say anything about “vacating” agency action (“wholesale” or
otherwise). Instead, it authorizes a reviewing court to “set aside”
agency action. Still, from those two words alone, the district
court thought the power to nullify the Guidelines with respect to
anyone anywhere surely follows. See 606 F. Supp. 3d, at
498–500.

															Color me skeptical. If the Congress that
unanimously passed the APA in 1946 meant to overthrow the “bedrock
practice of case-by-case judgments with respect to the parties in
each case” and vest courts with a “new and far-reaching” remedial
power, it surely chose an obscure way to do it. Arizona v. Biden , 40 F. 4th 375, 396 (CA6 2022) (Sutton,
C. J., concurring). At the very least, it is worth a closer
look.

															B

															Begin with the words “set aside” in isolation.
If they might suggest to some a power to “vacate” agency action in
the sense of rendering it null and void, just as naturally they
might mean something else altogether. They might simply describe
what a court usually does when it finds a federal or state statute
unconstitutional, or a state law preempted by a federal one.
Routinely, a court will disregard offensive provisions like these
and proceed to decide the parties’ dispute without respect to them.
In Dennis v. United States , 341
U.S. 494 (1951), for example, Justice Frankfurter observed that
“[w]e are to set aside the judgment of those whose duty it is to
legislate only if ” the Constitution requires it. Id .,
at 525 (concurring opinion). Justice Frankfurter hardly meant to
suggest the Court had the power to erase statutes from the books.
See id ., at 525–526. Instead, he used the phrase to mean
that a court should disregard—refuse to apply—an unconstitutional
law. It is a usage that was common at the time of the APA’s
adoption and that remains so today. See Webster’s New International
Dictionary 2291 (2d ed. 1954) (defining “set aside” as “to put to
one side; discard; dismiss” and “to reject from consideration;
overrule”); Webster’s New World College Dictionary 1329 (5th ed.
2016) (defining “set aside” as “to set apart” and “to discard;
dismiss; reject”).

															There are many reasons to think §706(2) uses
“set aside” to mean “disregard” rather than “vacate.” For one
thing, at the time of the APA’s adoption, conventional wisdom
regarded agency rules as “quasi-legislative” in nature. See Humphrey’s Executor v. United States , 295 U.S.
602 , 624, 628 (1935); see also D. Currie & F. Goodman,
Judicial Review of Federal Administrative Action: Quest for the
Optimum Forum, 75 Colum. L. Rev. 1, 40 (1975). And federal courts
have never enjoyed the power to “vacate” legislation. Instead, they
possess “little more than the negative power to disregard an
unconstitutional enactment.” Massachusetts v. Mellon , 262 U.S.
447 , 488 (1923) . Reading “set aside” to mean “disregard”
ensures parallel judicial treatment of statutes and rules.

															For another thing, the term “set aside” appears
in §706 of the APA. That section is titled “Scope of review,” a
title it has borne since the law’s enactment in 1946. 60Stat. 243.
And ordinarily, when we think about the scope of a court’s review,
we do not think about the remedies the court may authorize after
reaching its judgment on the merits. Instead, we think about the
court’s decisional process leading up to that judgment.
Understanding “set aside” as a command to disregard an unlawful
rule in the decisional process fits perfectly within this design.
Understanding the phrase as authorizing a remedy does not.

															What follows in §706 appears to confirm the
point. The statute begins by providing that, “[t]o the extent
necessary to decision and when presented, the reviewing court shall
decide all relevant questions of law, interpret constitutional and
statutory provisions, and determine the meaning and applicability
of the terms of an agency action.” Exactly as expected, we find an
instruction about the decisional process—one requiring the court to
apply “de novo review on questions of law” as it considers the
parties’ arguments in the course of reaching its judgment. Kisor v. Wilkie , 588 U. S. ___, ___ (2019)
(Gorsuch, J., concurring in judgment) (slip op., at 15) (internal
quotation marks omitted). Nothing here speaks to remedies.

															The remaining statutory language is more of the
same. Section 706 goes on to instruct that “[t]he reviewing court
shall . . . hold unlawful and set aside agency action,
findings, and conclusions found to be,” among other things,
“arbitrary,” “capricious,” “contrary to constitutional right,” “in
excess of ” statutory authority, or “unsupported by
substantial evidence.” §706(2). Looking at the provision as a
whole, rather than focusing on two words in isolation, we see
further evidence that it governs a court’s scope of review or
decisional process. The statute tells judges to resolve the cases
that come to them without regard to deficient agency action,
findings, or conclusions—an instruction entirely consistent with
the usual “negative power” of courts “to disregard” that which is
unlawful. Mellon , 262 U. S., at 488.

															Other details are telling too. Consider the
latter part of §706(2)’s directive to “set aside agency action,
findings, and conclusions.” The APA defines “agency action” to
include “the whole or a part of an agency rule, order, license,
sanction, relief, or the equivalent or denial thereof, or failure
to act.” 5 U. S. C. §551(13). A court can disregard any
of those things. But what would it even mean to say a court must
render null and void an agency’s failure to act? Notice, too, the
language about “findings.” Often, judges disregard factual findings
unsupported by record evidence and resolve the case at hand without
respect to them. See Fed. Rule Civ. Proc. 52(a)(6) (“Findings of
fact . . . must not be set aside unless clearly
erroneous.”). None of that means we may pretend to rewrite history
and scrub any trace of faulty findings from the record.

															Consider as well the larger statutory context.
Section 702 restricts judicial review to “person[s]” who have
“suffer[ed] legal wrong because of agency action, or [been]
adversely affected or aggrieved by agency action.” The provision
also instructs that “any mandatory or injunctive decree shall
specify the Federal officer or officers . . . personally
responsible for compliance.” Here, it seems, Congress nodded to
traditional standing rules and remedial principles. Yet under the
district court’s reading, we must suppose Congress proceeded just a
few paragraphs later to plow right through those rules and empower
a single judge to award a novel form of relief affecting parties
and nonparties alike.

															Then there is §703. That is where the APA most
clearly discusses remedies. Section 703 authorizes aggrieved
persons to bring “any applicable form of legal action, including
actions for declaratory judgments or writs of prohibitory or
mandatory injunction or habeas corpus.” Conspicuously missing from
the list is vacatur. And what exactly would a “form of legal
action” seeking vacatur look like anyway? Would it be a creature
called a “writ of vacatur”? Nobody knows (or bothers to tell us).
Nor is it apparent why Congress would have listed most remedies in
§703 only to bury another (and arguably the most powerful one) in a
later section addressed to the scope of review. Cf. J. Harrison,
Section 706 of the Administrative Procedure Act Does Not Call for
Universal Injunctions or Other Universal Remedies, 37 Yale J. Reg.
Bull. 37, 37, 45–46 (2020).

															The district court’s reading of “set aside”
invites still other anomalies. Section 706(2) governs all
proceedings under the APA. Any interpretation of “set aside”
therefore must make sense in the context of an enforcement
proceeding, an action for a declaratory judgment, a suit for an
injunction, or habeas. See §703. This poses a problem for the
district court’s interpretation, for no one thinks a court
adjudicating a declaratory action or a habeas petition “vacates”
agency action along the way. See Brief for United States 41–42;
Harrison, 37 Yale J. Reg. Bull., at 46. The anomaly dissipates,
however, if we read §706(2) as instructing courts about when they
must disregard agency action in the process of deciding a case.

															Imagine what else it would mean if §706(2)
really did authorize vacatur. Ordinary joinder and class-action
procedures would become essentially irrelevant in administrative
litigation. Why bother jumping through those hoops when a single
plaintiff can secure a remedy that rules the world? See Bray, 131
Harv. L. Rev., at 464–465. Surely, too, it is odd that leading
scholars who wrote extensively about the APA after its adoption
apparently never noticed this supposed remedy. See J. Harrison,
Vacatur of Rules Under the Administrative Procedure Act, 40 Yale J.
Reg. Bull. 119, 127–128 (2023) (discussing scholarship of
Professors Kenneth Culp Davis and Louis Jaffe); see also Department
of Justice, Attorney General’s Manual on the Administrative
Procedure Act 108 (1947) (offering the Executive Branch’s view that
§706 simply “restates the present law as to the scope of judicial
review”). These are not people who would have missed such a major
development in their field.

															C

															As always, there are arguments on the other
side of the ledger, and the States tee up several. They first reply
that §706(2) must allow vacatur of agency action because the APA
models judicial review of agency action on appellate review of
judgments, and appellate courts sometimes vacate judgments. Brief
for Respondents 40. But just because “Congress may sometimes refer
to collateral judicial review of executive action as ‘an appeal’
. . . does not make it an ‘appeal’ akin to that taken
from the district court to the court of appeals.” Garland v. Ming Dai , 593 U. S. ___, ___ (2021) (slip op., at 9).
Nor does any of that tell us in which respects the APA models
judicial review of agency action on appellate review of lower court
judgments. According to one scholar, the “salient” similarities
between appellate review and judicial review of agency action
concern the standards of review—in both types of proceedings, a
reviewing court engages in a more rigorous review of legal
questions and a more deferential review of factual findings. T.
Merrill, Article III, Agency Adjudication, and the Origins of the
Appellate Review Model of Administrative Law, 111 Colum.
L. Rev. 939, 940–941 (2011). None of that has to do with
remedies; once again, it concerns a court’s scope of review or
decisional process.

															The States next invoke §706(1) and §705. The
former provides that courts shall “compel agency action unlawfully
withheld or unreasonably delayed.” The latter says courts “may
issue all necessary and appropriate process to postpone the
effective date of an agency action or to preserve status or rights
pending conclusion of the review proceedings.” The States insist
that “[i]t would be illogical” for the APA to authorize these
remedies but not vacatur. Brief for Respondents 40. Is it so clear,
though, that §706(1) and §705 authorize remedies? Section 706(1)
does seem to contemplate a remedy. But it’s one §703
mentions—mandatory injunctions. So §706(1) might not authorize a
remedy as much as confirm the availability of a traditional remedy
to address agency in action. The same could be said about
§705; it might just confirm courts’ authority to issue traditional
equitable relief pending judicial review. Cf. Sampson v. Murray , 415 U.S.
61 , 69, n. 15 (1974) (explaining that §705 was “primarily
intended to reflect existing law”).

															The States also direct us to scholarship that in
turn purports to identify a few instances of federal courts
“setting aside” agency action in the years leading up to the APA.
See Brief for Respondents 41; see also Brief for State of Florida
as Amicus Curiae 17. It is not obvious, however, that these
few cases stand for so much. In two of them, this Court upheld the agency action in question and thus had no
occasion to opine on appropriate relief. See Houston v. St. Louis Independent Packing Co. , 249 U.S.
479 , 486–487 (1919); The Assigned Car Cases , 274 U.S.
564 , 584 (1927). In a third case, the plaintiff sought “to
enjoin enforcement of ” an order of the Federal Communications
Commission. Columbia Broadcasting System, Inc. v. United
States , 316 U.S.
407 , 408 (1942). That is a claim for traditional equitable
relief, and indeed, the Court held that the complaint “state[d] a
cause of action in equity” and remanded for further proceedings. Id., at 425. A fourth case, involving an order of the
Interstate Commerce Commission, seems of a piece. There, a district
court held the Commission’s order invalid and “restrain[ed]
. . . enforcement” of it. Baltimore & Ohio R.
Co. v. United States , 5 F. Supp. 929, 936 (ND Ohio
1933). This Court affirmed. See United States v. Baltimore & Ohio R. Co. , 293
U.S. 454 (1935). True, this Court described the case as an
“appeal from [a] decree . . . setting aside” the
Commission’s order. Id., at 455. But the fact that the lower
court had only restrained enforcement of the order goes to show
that “set aside” did not then (and does not now) necessarily
translate to “vacate.”

															At the end of the day, the States fall back on
other lower court decisions. “For more than 30 years,” they say,
“vacatur has been the ordinary result when the D. C. Circuit
determines that agency regulations are unlawful.” Brief for
Respondents 42 (internal quotation marks omitted). Doubtless, to
the extent those decisions are carefully reasoned, they merit
respectful consideration. But, equally, they do not bind us. Cf. post, at 14, n. 7 (Alito, J., dissenting) (observing
that this Court has only ever “assumed” that the APA authorizes
vacatur).

															In raising questions about the district court’s
claim that §706(2) authorizes vacatur of agency action, I do not
pretend that the matter is open and shut. Thoughtful arguments and
scholarship exist on both sides of the debate. Nor do I mean to
equate vacatur of agency action with universal injunctions. Despite
some similarities, courts can at least arguably trace their
authority to order vacatur to language in a statute and practice in
some lower courts. But the questions here are serious ones. And
given the volume of litigation under the APA, this Court will have
to address them sooner or later. Until then, we would greatly
benefit from the considered views of our lower court
colleagues.

															D

															Suppose my doubts about vacatur are unfounded.
Suppose the APA really does authorize both traditional forms of
equitable relief (in §703) and a more expansive equitable power to
vacate agency action (in §706). Even if that were true, a district
court should “think twice—and perhaps twice again—before granting”
such sweeping relief. Arizona v. Biden , 40 F. 4th, at
396 (Sutton, C. J., concurring).

															After all, this Court has long instructed that
equitable relief “must be limited to the inadequacy that produced
[the] injury in fact.” Gill v. Whitford , 585
U. S. ___, ___ (2018) (slip op., at 14) (internal quotation
marks omitted). Any remedy a judge authorizes must not be ‘‘more
burdensome [to the defendant] than necessary to redress the
complaining parties.’’ Califano v. Yamasaki , 442 U.S.
682 , 702 (1979). And faithful application of those principles
suggests that an extraordinary remedy like vacatur would demand
truly extraordinary circumstances to justify it. Cf. S. Bray &
P. Miller, Getting Into Equity, 97 N. D. L. Rev. 1763,
1797 (2022) (“[I]n equity it all connects—the broader and deeper
the remedy the plaintiff wants, the stronger the plaintiff ’s
story needs to be.”).

															The temptations a single district judge may face
when invited to vacate agency rules are obvious. Often, plaintiffs
argue that everyone deserves to benefit from their effort to
litigate the case and the court’s effort to decide it. Judges may
think efficiency and uniformity favor the broadest possible relief.
But there are serious countervailing considerations. As with
universal injunctions, vacatur can stymie the orderly review of
important questions, lead to forum shopping, render meaningless
rules about joinder and class actions, and facilitate efforts to
evade the APA’s normal rulemaking processes. Vacatur can also sweep
up nonparties who may not wish to receive the benefit of the
court’s decision. Exactly that happened here. Dozens of States,
counties, and cities tell us they did not seek and do not want the
“benefit” of the district court’s vacatur order in this case. See
Brief for New York et al. as Amici Curiae 1–2; Brief
for 21 Cities, Counties, and Local Government Organizations as Amici Curiae 2–3.

															More importantly still, universal relief,
whether by way of injunction or vacatur, strains our separation of
powers. It exaggerates the role of the Judiciary in our
constitutional order, allowing individual judges to act more like a
legislature by decreeing the rights and duties of people
nationwide. This Court has warned that “[f]ew exercises of the
judicial power are more likely to undermine public confidence in
the neutrality and integrity of the Judiciary than one which casts
[courts] in the role of a Council of Revision, conferring on
[themselves] the power to invalidate laws at the behest of anyone
who disagrees with them.” Arizona Christian School Tuition
Organization v. Winn , 563 U.S.
125 , 145–146 (2011). At a minimum, then, district courts must
carefully consider all these things before doling out universal
relief. And courts of appeals must do their part, too, asking
whether party-specific relief can adequately protect the
plaintiff ’s interests. If so, an appellate court should not
hesitate to hold that broader relief is an abuse of discretion. Cf. Kentucky v. Biden , 57 F. 4th 545, 556–557 (CA6
2023) (Larsen, J.).

															*

															In our system of government, federal courts
play an important but limited role by resolving cases and
controversies. Standing doctrine honors this limitation at the
front end of every lawsuit. It preserves a forum for plaintiffs
seeking relief for concrete and personal harms while filtering out
those with generalized grievances that belong to a legislature to
address. Traditional remedial rules do similar work at the back end
of a case. They ensure successful plaintiffs obtain meaningful
relief. But they also restrain courts from altering rights and
obligations more broadly in ways that would interfere with the
power reserved to the people’s elected representatives. In this
case, standing and remedies intersect. The States lack standing
because federal courts do not have authority to redress their
injuries. Section 1252(f )(1) denies the States any coercive
relief. A vacatur order under §706(2) supplies them no effectual
relief. And such an order itself may not even be legally
permissible. The States urge us to look past these problems, but I
do not see how we might. The Constitution affords federal courts
considerable power, but it does not establish “government by
lawsuit.” R. Jackson, The Struggle for Judicial Supremacy 286–287
(1941). SUPREME COURT OF THE UNITED STATES

															_________________

															No. 22–58

															_________________

															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 23, 2023]

															Justice Barrett, with whom Justice Gorsuch
joins, concurring in the judgment.

															I agree with the Court that the States lack
standing to challenge the Federal Government’s Guidelines for the
enforcement of immigration law. But I reach that conclusion for a
different reason: The States failed to show that the District Court
could order effective relief. Justice Gorsuch ably explains why
that is so. Ante , p. 1 (opinion concurring in
judgment). And because redressability is an essential element of
Article III standing, the District Court did not have
jurisdiction.

															The Court charts a different path. In its view,
this case can be resolved based on what it calls the “fundamental
Article III principle” that “ ‘a citizen lacks standing to
contest the policies of the prosecuting authority when he himself
is neither prosecuted nor threatened with prosecution.’ ” Ante , at 1 (quoting Linda R. S. v. Richard D. , 410 U.S.
614 , 619 (1973)). In other words, the Court says, the States
have not asserted a “ ‘judicially cognizable interest’ ”
in this case. Ante , at 5. Respectfully, I would not take
this route.

															I

															To begin with, I am skeptical that Linda R.
S. suffices to resolve this dispute. First, the Court reads
that decision too broadly. Consider the facts. The “mother of an
illegitimate child” sued in federal court, “apparently seek[ing] an
injunction running against the district attorney forbidding him
from declining prosecution” of the child’s father for failure to
pay child support. 410 U. S., at 614–616. She objected, on
equal protection grounds, to the State’s view that “fathers of
illegitimate children” were not within the ambit of the relevant
child-neglect statute. Id. , at 616.

															We agreed that the plaintiff “suffered an injury
stemming from the failure of her child’s father to contribute
support payments.” Id. , at 618. But if the plaintiff “were
granted the requested relief, it would result only in the jailing
of the child’s father.” Ibid . Needless to say, the prospect
that prosecution would lead to child-support payments could, “at
best, be termed only speculative.” Ibid. For this reason, we
held that the plaintiff lacked standing. Only then, after resolving
the standing question on redressability grounds, did we add that “a
private citizen lacks a judicially cognizable interest in the
prosecution or nonprosecution of another.” Id. , at 619. In
short, we denied standing in Linda R. S. because it was
speculative that the plaintiff ’s requested relief would
redress her asserted injury, not because she failed to allege one.
See Duke Power Co. v. Carolina Environmental Study Group,
Inc. , 438 U.S.
59 , 79, n. 24 (1978).

															Viewed properly, Linda R. S. simply
represents a specific application of the general principle that
“when the plaintiff is not himself the object of the government
action or inaction he challenges, standing is not precluded, but it
is ordinarily ‘substantially more difficult’ to establish” given
the causation and redressability issues that may arise. Lujan v. Defenders of Wildlife , 504 U.S.
555 , 562 (1992). That is true for the States here. I see little
reason to seize on the case’s bonus discussion of whether “a
private citizen” has a “judicially cognizable interest in the
prosecution or nonprosecution of another” to establish a broad rule
of Article III standing. Linda R. S. , 410 U. S., at
619.

															Second, even granting the broad principle the
Court takes from Linda R. S. , I doubt that it applies with
full force in this case. Unlike the plaintiff in Linda R.
S. , the States do not seek the prosecution of any particular
individual—or even any particular class of individuals. See ASARCO Inc. v. Kadish , 490 U.S.
605 , 624 (1989) (“[F]ederal standing ‘often turns on the nature
and source of the claim asserted’ ”). In fact, they disclaim any interest in the prosecution or nonprosecution
of noncitizens. See Brief for Respondents 15; Tr. of Oral Arg.
124–125. They acknowledge that 8 U. S. C. §1226(c)(1)’s
detention obligation “only applies until” the Government makes “a
decision whether or not to prosecute.” Tr. of Oral Arg. 100. And
they readily concede that if the Government decides not to
prosecute, any detention obligation imposed by §1226(c)(1)
“immediately ends.” Ibid . The States make similar
concessions with respect to §1231(a)(2). They maintain, for
example, that §1231(a)(2) applies “only where the United States has
used its prosecutorial discretion to bring a notice to appear, to
prosecute that all the way to a final . . . order of
removal.” Id ., at 130. But if the Government for any reason
“choose[s] to discontinue proceedings,” the alleged detention
obligation does not attach. Id. , at 131.

															The upshot is that the States do not dispute
that the Government can prosecute whomever it wants. They seek,
instead, the temporary detention of certain noncitizens during
elective removal proceedings of uncertain duration. And the States’
desire to remove the Guidelines’ influence on the Government’s
admittedly broad discretion to enforce immigration law meaningfully
differs from the Linda R. S. plaintiff ’s desire to
channel prosecutorial discretion toward a particular target. Given
all of this, I would not treat Linda R. S. as the “leading
precedent” for resolving this case. Ante , at 5. In my view,
the Court is striking new ground rather than applying settled
principles.

															II

															In addition to its reliance on Linda R.
S. , the Court offers several reasons why “federal courts have
not traditionally entertained lawsuits of this kind.” Ante ,
at 6. I am skeptical that these reasons are rooted in Article III
standing doctrine.

															Take, for example, the Court’s discussion of Castle Rock v. Gonzales , 545
U.S. 748 (2005). Ante , at 10. There, we reasoned that
given “[t]he deep-rooted nature of law-enforcement discretion,” a
“true mandate of police action would require some stronger
indication” from the legislature than, for example, the bare use of
the word “ ‘shall’ ” in a statutory directive. Castle
Rock , 545 U. S., at 761. The Court today concludes that
“no such statute is present in this case.” Ante , at 10. But Castle Rock is not a case about Article III standing. It
addressed “whether an individual who has obtained a state-law
restraining order has a constitutionally protected property
interest” under the Fourteenth Amendment “in having the police
enforce the restraining order when they have probable cause to
believe it has been violated.” 545 U. S., at 750–751. I see no
reason to opine on Castle Rock ’s application here,
especially given that the parties (correctly) treat Castle
Rock as relevant to the merits of their statutory claims
rather than to the States’ standing to bring them. See Brief
for Petitioners 8; Brief for Respondents 30.

															The Court also invokes “the Executive’s Article
II authority to enforce federal law.” Ante , at 6. I question
whether the President’s duty to “take Care that the Laws be
faithfully executed,” Art. II, §3, is relevant to the standing
analysis. While it is possible that Article II imposes
justiciability limits on federal courts, it is not clear to me why
any such limit should be expressed through Article III’s definition
of a cognizable injury. Moreover, the Court works the same magic on
the Take Care Clause that it does on Castle Rock : It takes
an issue that entered the case on the merits and transforms it into
one about standing. See ante , at 4 (opinion of Gorsuch,
J.)

															The Court leans, too, on principles set forth in Heckler v. Chaney , 470 U.S.
821 (1985). Ante , at 8, 11. But, again, Heckler was not about standing. It addressed a different question: “the
extent to which a decision of an administrative agency to exercise
its ‘discretion’ not to undertake certain enforcement actions is
subject to judicial review under the Administrative Procedure Act.”
470 U. S., at 823; see also 5 U. S. C. §701(a)(2)
(the APA’s judicial-review provisions do not apply “to the extent”
that “agency action is committed to agency discretion by law”). Heckler held that “an agency’s decision not to take
enforcement action should be presumed immune from judicial review
under” the APA. 470 U. S., at 832. But such a decision “is
only presumptively unreviewable; the presumption may be rebutted
where the substantive statute has provided guidelines for the
agency to follow in exercising its enforcement powers.” Id. ,
at 832–833. Whatever Heckler ’s relevance to cases like this
one, it does not establish a principle of Article III standing. And
elevating it to the status of a constitutional rule would transform
it from a case about statutory provisions (that Congress is free to
amend) to one about a constitutional principle (that lies beyond
Congress’s domain). Although the Court notes that Heckler involved the APA, its conflation of Heckler with standing
doctrine is likely to cause confusion. See ante , at 8
(analogizing “Article III cases” to “Administrative Procedure Act
cases”).

															*  *  *

															The Court weaves together multiple doctrinal
strands to create a rule that is not only novel, but also in
tension with other decisions. See ante, at 2–4 (opinion of
Gorsuch, J.). In my view, this case should be resolved on the
familiar ground that it must be “ ‘likely,’ as opposed to
merely ‘speculative,’ ” that any injury “will be ‘redressed by
a favorable decision.’ ” Lujan , 504 U. S., at 561.
I respectfully concur only in the judgment. SUPREME COURT OF THE UNITED STATES

															_________________

															No. 22–58

															_________________

															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 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 has
standing.

															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 decision.” Lujan v. Defenders of Wildlife , 504 U.S.
555 , 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
responded:

															“ That’s correct under this Court’s
precedent , 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 policies.” Ante , 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 v. Bell , 430 U.S.
787 , 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 v. United States , 567 U.S.
387 , 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.

															I

															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.

															A

															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 v. Kim , 538 U.S.
510 , 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. , at 519. To remedy this problem,
Congress “ subtract[ed] some of that discretion when it comes
to the arrest and release of criminal aliens.” Nielsen v. Preap , 586 U. S. ___, ___ (2019) (slip op., at 15)
(emphasis in original).

															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 period.

															All of our recent decisions interpreting these
provisions confirm that, for covered aliens, shall means shall ; it does not mean “may.” See Johnson 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 v. Texas , 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 custody.” Nielsen , 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 general rule that the
Executive possesses enforcement discretion, see Reno v. American-Arab Anti-Discrimination Comm. , 525 U.S.
471 , 490–491 (1999), or pair that general rule with the
observation that the States cannot limit the Government’s
discretion in pursuing removal, see Arizona , 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 v. Texas , 597 U. S., at ___ (dissenting opinion) (slip
op., at 15), and that is true even if the adverse possession is
bipartisan.

															B

															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 deviations from the statutory mandates; it flatly contradicted those mandates by stating that qualifying
convictions were insufficient grounds for initiating arrest,
detention, and removal.

															C

															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. Id. , 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, id. , 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).

															II

															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 560–561.

															A Injury in fact. The District 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 v. Ramirez , 594
U. S. ___, ___ (2021) (slip op., at 9); see ante , at 4
(conceding that such costs are “of course an injury”). Traceability. 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 added).

															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 spending.” Ante , 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. Ante , 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 direct 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. Redressability. 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.

															B

															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
§1252(f )(1).[ 5 ] In 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 can be
awarded by this Court. According to the Court’s decision last Term
in Biden v. Texas , 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 here.

															Second, even if Biden v. Texas 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 v. Massachusetts , 505 U.S.
788 (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 ., at 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, LP v. United States Dept. of Labor , 45

															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 Admin. , 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 v. Texas resolves the issue of redressability.

															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 limits on otherwise-available lawsuits. It is
to this misunderstanding that I now turn.

															III

															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.” Ante ,
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.

															A

															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 Election Comm’n v. Akins , 524 U.S.
11 , 19 (1998). The obvious parallel to the case before us is Massachusetts v. EPA , 549 U.S.
497 (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. Massachusetts , 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 v. EPA , 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
least some 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 III standing.

															Despite the clear parallel with this case and
the States’ heavy reliance on Massachusetts throughout 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 Massachusetts “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 M assachusetts 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 v. Chaney , 470 U.S.
821 (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, Heckler 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 832–833.

															So rather than answering questions about this
case, the majority’s footnote on Massachusetts raises more
questions about Massachusetts itself—most importantly, has
this monumental decision been quietly interred? Cf. ante , at
3 (Gorsuch, J., concurring in judgment). Massachusetts v. EPA 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 v. Earth Island
Institute , 555 U.S.
488 , 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 v. Pennsylvania , 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. Id. , 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 States , 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 v. Texas ,
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 v. Biden , 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.
500 , 511 (2006), but the Court should not use a practice of
selective silence to accept or reject prominently presented
standing arguments on inconsistent grounds.

															B

															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 R. S. v. Richard D. , 410 U.S.
614 (1973). Ante , at 5. But as Justice Barrett notes,
this Court has already definitively explained that the suit
to compel prosecution in Linda R. S. was rejected “because
of the unlikelihood that the relief requested would redress
appellant’s claimed injury.” Duke Power Co. v. Carolina
Environmental Study Group, Inc. , 438 U.S.
59 , 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. v. NLRB , 467 U.S.
883 , 897 (1984), ante , at 5. But Sure-Tan ’s
single “[c]f.” cite to Linda R. S. provides the Court no
help. 467 U. S., at 897. Sure-Tan only rejected (quite
reasonably) any standalone “cognizable interest in procuring
enforcement of the immigration laws” by a party who lacked any
“ personal interest.” Ibid. (emphasis 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 v. Gonzales , 545 U.S.
748 (2005), has real relevance here. Ante , at 4–5. Castle Rock 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 , 470 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.

															C

															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. First , 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. Second , 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 Branch.” Ante, 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, Inc. v. Robins , 578
U.S. 330, 341 (2016). But once it is posited that a plaintiff has
personally suffered a “ de facto ” 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 unconstitutional. Ante , at 10, and
n. 4. Third , the majority tells us that the
standing outcome “ might change” if the Federal Government
“ wholly abandoned its statutory responsibilities,” but that
statement is both equivocal and vague. Ante , 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 ” or “arguably could ” change. Ibid. (emphasis added). Fourth , the Court says that a plaintiff
might have standing to challenge an “Executive Branch’s arrest or
prosecution priorities and the Executive Branch’s provision
of legal benefits or legal status . . . because the
challenged policy might implicate more than simply the Executive’s
traditional enforcement discretion.” Ibid. 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. Fifth , 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 policies.” Ante , 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. Ante , 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
detention. Ante , 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 v. Texas 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.

															IV

															The Court declares that its decision upholds
“[o]ur constitutional system of separation of powers,” ante ,
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 helpless.

															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 v. Kerry , 576 U.S. 1, 61 (2015) (Roberts, C. J., dissenting)
(quoting Youngstown Sheet & Tube Co. v. Sawyer , 343 U.S.
579 , 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
with.[ 10 ] 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
contrary.[ 11 ] 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 late.”[ 13 ]

															By the time of the American Revolution, British
monarchs had long abandoned the power to resist laws enacted by
Parliament,[ 14 ] 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
unanimously defeated.[ 17 ]
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 v. Smith , 27 F. Cas. 1192, 1201 (No. 16,342) (CC NY 1806). He
concluded:

															“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. , at 1230.

															In Kendall v. United States ex rel.
Stokes , 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 justice.” Ibid. ; see also Office of Personnel Management v. Richmond , 496 U.S.
414 , 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. v. United States , 424 U.S.
800 , 817 (1976). Because the majority shuns that duty, I must
respectfully dissent. Notes 1 In a case with multiple
plaintiffs, Article III permits us to reach the merits if any
plaintiff has standing. Rumsfeld v. Forum for Academic
and Institutional Rights, Inc. , 547 U.S.
47 , 52, n. 2 (2006). Because Texas clearly meets our test
for Article III standing, it is not necessary to consider whether
the other plaintiff, the State of Louisiana, also satisfies that
test. 2 The Immigration and
Naturalization Service was merged into DHS in 2003. 3 This figure excludes
instances where a detainer was withdrawn but then reissued, or
where an alien previously subject to a withdrawn detainer was taken
into federal custody. 4 The District Court also
concluded that the Final Memorandum was “arbitrary and capricious,”
and had not undergone “notice and comment,” resulting in separate
APA violations. 606 F. Supp. 3d, at 492, 495. Because the
majority’s standing analysis applies equally to any APA violation,
I focus only on the contrary-to-law claim and express no opinion on
these further claims. 5 Section 1252(f )(1)
reads in full: “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 the provisions of
part IV of this subchapter, as amended by the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996, other than with
respect to the application of such provisions to an individual
alien against whom proceedings under such part have been
initiated.” 6 While only four of eight
Justices finding standing in Franklin formally joined this
explanation, see 505 U. S., at 824, n. 1 (Scalia, J.,
concurring in part and concurring in judgment), the Court
subsequently ratified this reasoning. See Utah v. Evans , 536 U.S.
452 , 460, 463–464 (2002). 7 Our decision three years
ago in Department of Homeland Security v. Regents of
Univ. of Cal. , 591 U. S. ___ (2020), appears to have
assumed that the APA authorizes this common practice. We held that
the rescission of the Deferred Action for Childhood Arrivals
program had to be “vacated” because DHS had violated the procedures
required by the APA. Id. , at ___ (slip op., at 2). If the
court in that case had lacked the authority to set aside the rule
adopting the program, there would have been no need to examine the
sufficiency of DHS’s procedures. 8 The Court also appeals to
“historical experience” and “longstanding historical practice.” Ante , at 6, 14 (internal quotation marks omitted). I do not
take this to be an argument independent from the case law cited,
since no history is discussed apart from those cases (all but one
from after 1964). 9 The majority suggests
that any law that constrains an Executive’s “enforcement
discretion” is “highly unusual,” and notes that the States cite no
“similarly worded federal laws” that “ require the Executive
Branch to make arrests or bring prosecutions” in other,
non-immigration contexts. Ante , at 12. But there is nothing
peculiar about Congress’s reserving its mandates for an
area—immigration—where it both exercises particularly broad
authority, Fiallo v. Bell , 430
U.S. 787 , 792 (1977), and identifies a unique “wholesale
failure” by the enforcement authority, Demore v. Kim , 538 U.S.
510 , 518 (2003). 10 See
O. Holmes, The Path of the Law, 10 Harv. L. Rev. 457, 459–460
(1897). 11 See
Z. Price, Enforcement Discretion and Executive Duty, 67 Vand.
L. Rev. 671, 689–696 (2014); R. Delahunty & J. Yoo, Dream
On: The Obama Administration’s Nonenforcement of Immigration Laws,
the DREAM Act, and the Take Care Clause, 91 Texas L. Rev. 781,
797–804 (2013) (Delahunty & Yoo, Dream On); see also E. Biber,
Two Sides of the Same Coin: Judicial Review of Administrative
Agency Action and Inaction, 26 Va. Env. L. J. 461, 472–474
(2008). 12 See
R. Reinstein, The Limits of Executive Power, 59 Am. U. L. Rev.
259, 277–281 (2009) (Reinstein, Limits). 13 An
Act Declaring the Rights and Liberties of the Subject and Settling
the Succession of the Crown (Bill of Rights), 1 W. & M., Sess.
2, c. 2 (1689). 14 The
last time a British monarch withheld assent to a bill enacted by
Parliament was in 1708. 18 HL J. 506 (Mar. 11, 1708). 15 Declaration of Independence ¶4; In
1774, Jefferson had addressed the subject of this charge,
explaining that British monarchs “for several ages past” had
“declined the exercise of this power in that part of [the] empire
called Great Britain” but had resumed the practice in the American
Colonies and had “rejected laws of the most salutary tendency,”
such as one forbidding the importation of slaves. T. Jefferson, A
Summary View of the Rights of British America (1774),
https://avalon.law.yale.edu/18th_century/jeffsumm.asp. See G.
Wills, Inventing America: Jefferson’s Declaration of Independence
69 (1978). 16 See
generally S. Calabresi, S. Agudo, & K. Dore, State Bills of
Rights in 1787 and 1791: What Individual Rights Are Really Deeply
Rooted in American History and Tradition? 85 S. Cal. L. Rev.
1451, 1534–1535 (2012) (reporting that six State Constitutions had
such provisions in 1787, rising to eight by 1791). 17 1 The
Records of the Federal Convention of 1787, pp. 103–104 (M.
Farrand ed. 1966). See generally R. Beeman, Plain, Honest Men: The
Making of the American Constitution 140 (2009) (describing debate
over the executive veto). 18 See, e.g. , Delahunty & Yoo, Dream On 803–804 (2013);
Reinstein, Limits 281; S. Prakash, The Essential Meaning of
Executive Power, 2003 U. Ill. L. Rev. 701, 726, n. 113
(2003); C. May, Presidential Defiance of “Unconstitutional” Laws:
Reviving the Royal Prerogative 16 and n. 58 (1998); R.
Reinstein, An Early View of Executive Powers and Privilege: The
Trial of Smith and Ogden, 2 Hastings Const. L. Q. 309,
320–321, n. 50 (1975).