# United States v. Texas (2023)/Opinion of the Court

Notice: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
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.
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).
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”).
​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.
​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.
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.
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.
* ↑ 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.
* ↑ 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.
* ↑ 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.
* ↑ 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.
* ↑ 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”).
* ↑ 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”).