# United States v. Texas (2023)/Opinion of Justice Barrett

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 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.