PRELIMINARY PRINT 

Volume 599 U. S. Part 1 

Pages 670–735 

OFFICIAL REPORTS 

OF 

THE SUPREME COURT 

June 23, 2023 

REBECCA A. WOMELDORF 

reporter of decisions 

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NOTICE: This preliminary print is subject to formal revision before 

the bound volume is published. Users are requested to notify the Reporter 

of Decisions, Supreme Court of the United States, Washington, D.C. 20543, 

pio@supremecourt.gov, of any typographical or other formal errors. 
670 OCTOBER TERM, 2022 

Syllabus 

UNITED STATES et al. v. TEXAS et al. 

certiorari before judgment to the united states 

court of appeals for the fth circuit 

No. 22–58. Argued November 29, 2022—Decided June 23, 2023 

In 2021, the Secretary of Homeland Security promulgated new 

immigration-enforcement guidelines (Guidelines for the Enforcement of 

Civil Immigration Law) that 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. The States of Texas and Louisiana claim that the Guidelines 

contravene two federal statutes that they read to require the arrest of 

certain noncitizens upon their release from prison (8 U. S. C. § 1226(c)) 

or entry of a fnal order of removal (§ 1231(a)(2)). The District Court 

found that the States would incur costs due to the Executive's failure to 

comply with those alleged statutory mandates, and that the States had 

standing to sue based on those costs. On the merits, the District Court 

found the Guidelines unlawful and vacated them. The Fifth Circuit declined to stay the District Court's judgment, and this Court granted 

certiorari before judgment. 

Held: Texas and Louisiana lack Article III standing to challenge the 

Guidelines. Pp. 676–686. 

(a) Under Article III, a plaintiff must have standing to sue. This 

bedrock constitutional requirement has its roots in the separation of 

powers. So the threshold question here is whether the States have 

standing to maintain this suit. Based on this Court's precedents and 

longstanding historical practice, 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. The District Court 

found that the States would incur additional costs due to the challenged 

arrest policy. And monetary costs are an injury. But this Court has 

stressed that the alleged injury must also “be legally and judicially cognizable.” Raines v. Byrd, 521 U. S. 811, 819. That requires that the 

dispute is “traditionally thought to be capable of resolution through the 

judicial process.” Ibid. Here, the States cite no precedent, history, or 

tradition of federal courts entertaining lawsuits of this kind. On the 

contrary, this Court has previously ruled that a plaintiff lacks standing 

to bring such a suit “when he himself is neither prosecuted nor threatened with prosecution.” See Linda R. S. v. Richard D., 410 U. S. 614, 

619. The Linda R. S. Article III standing principle remains the law 

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Syllabus 

today, and the States have pointed to no case or historical practice holding otherwise. Pp. 675–678. 

(b) There are good reasons why federal courts have not traditionally 

entertained lawsuits of this kind. For one, 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. Moreover, such 

lawsuits run up against the Executive's Article II authority to decide 

“how to prioritize and how aggressively to pursue legal actions against 

defendants who violate the law.” TransUnion LLC v. Ramirez, 594 

U. S. –––, –––. The principle of Executive Branch enforcement discretion over arrests and prosecutions extends to the immigration context. 

Courts also generally lack meaningful standards for assessing the propriety of enforcement choices in this area, which are invariably affected 

by resource constraints and regularly changing public-safety and publicwelfare needs. That is why this Court has 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. 

Pp. 678–681. 

(c) This holding does 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 which 

a plaintiff typically seeks to prevent his or her own prosecution. Second, the standing analysis might differ when Congress elevates de facto 

injuries to the status of legally cognizable injuries redressable by a federal court. Third, the standing calculus might change if the Executive 

Branch wholly abandoned its statutory responsibilities to make arrests 

or bring prosecutions. Fourth, a challenge to an Executive Branch policy that involves both arrest or prosecution priorities and the provision 

of legal benefts or legal status could lead to a different standing analysis. 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. But this case presents 

none of those scenarios. Pp. 681–683. 

(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. This case is different 

from those in which the Federal Judiciary decides justiciable cases involving statutory requirements or prohibitions on the Executive, because it implicates the Executive Branch's enforcement discretion and 

raises the distinct question of whether the Federal Judiciary may in 

effect order the Executive Branch to take enforcement actions. The 
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672 UNITED STATES v. TEXAS 

Syllabus 

Court's decision does not indicate any view on whether the Executive is 

complying with its statutory obligations. Nor does the Court's narrow 

holding signal any change in the balance of powers between Congress 

and the Executive. Pp. 684–686. 

606 F. Supp. 3d 437, reversed. 

Kavanaugh, J., delivered the opinion of the Court, in which Roberts, 

C. J., and Sotomayor, Kagan, and Jackson, JJ., joined. Gorsuch, J., 

fled an opinion concurring in the judgment, in which Thomas and Barrett, JJ., joined, post, p. 686. Barrett, J., fled an opinion concurring in 

the judgment, in which Gorsuch, J., joined, post, p. 704. Alito, J., fled 

a dissenting opinion, post, p. 709. 

Solicitor General Prelogar argued the cause for the 

United States. With her on the brief were Principal Deputy Assistant Attorney General Boynton, Deputy Solicitors 

General Fletcher and Gannon, Vivek Suri, Austin L. 

Raynor, Daniel Tenny, and Michael Shih. 

Judd E. Stone II, Solicitor General of Texas, argued the 

cause for respondents. With him on the brief were Ken 

Paxton, Attorney General of Texas, Brent Webster, First Assistant Attorney General, Ari Cuenin and Benjamin D. Wilson, Deputy Solicitors General, Eric J. Hamilton and Ryan 

S. Baach, Assistant Solicitors General, Jeff Landry, Attorney General of Louisiana, Elizabeth B. Murrill, Solicitor 

General, and Joseph S. St. John, Deputy Solicitor General.* 

*Briefs of amici curiae urging reversal were fled for the State of New 

York et al. by Letitia James, Attorney General of New York, Barbara 

D. Underwood, Solicitor General, Ester Murdukhayeva, Deputy Solicitor 

General, and Andrea W. Trento, Assistant Solicitor General, Rob Bonta, 

Attorney General of California, Michael Mongan, Solicitor General, Helen 

H. Hong, Deputy Solicitor General, James F. Zahradka II, Supervising 

Deputy Attorney General, and Christopher Paul and Kailani Medeiros, 

Deputy Attorneys General, and Matthew J. Platkin, Acting Attorney General of New Jersey, and by the Attorneys General for their respective 

jurisdictions as follows: William Tong of Connecticut, Kathleen Jennings 

of Delaware, Karl A. Racine of the District of Columbia, Kwame Raoul 

of Illinois, Aaron M. Frey of Maine, Brian E. Frosh of Maryland, Maura 

Healey of Massachusetts, Keith Ellison of Minnesota, Aaron D. Ford of 

Nevada, Hector Balderas of New Mexico, Ellen F. Rosenbaum of Oregon, 
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Opinion of the Court 

Justice Kavanaugh delivered the opinion of the Court. 

In 2021, after President Biden took offce, 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 DepartPeter F. Neronha of Rhode Island, Susanne R. Young of Vermont, and 

Robert W. Ferguson of Washington; for Administrative Law Professors by 

Adam S. Gershenson and Kathleen R. Hartnett; for the American Civil 

Liberties Union et al. by Cody Wofsy, Cecillia D. Wang, Michael K. T. 

Tan, Omar C. Jadwat, and David D. Cole; for Former Offcials of the Department of Homeland Security et al. by Elizabeth B. Wydra and Brianne 

J. Gorod; for Immigrant and Civil Rights Organizations et al. by Sirine 

Shebaya and Alina Das; for the National Immigration Justice Center by 

Charles Roth; for Public Citizen by Allison M. Zieve and Scott L. Nelson; 

for Stephen I. Vladeck by Lindsay C. Harrison and Max Wolson; and for 

21 Cities et al. by Daniel R. Suvor, Sylvia O. Hinds-Radix, Daniel R. 

Satterberg, Michael Feuer, Leslie J. Girard, and John Daniel Reaves. 

Briefs of amici curiae urging affrmance were fled for the State of 

Arizona et al. by Mark Brnovich, Attorney General of Arizona, Drew C. 

Ensign, Deputy Solicitor General, and Joseph A. Kanefeld, and by the 

Attorneys General for their respective States as follows: Steve Marshall 

of Alabama, Leslie Rutledge of Arkansas, Christopher M. Carr of Georgia, 

Theodore E. Rokita of Indiana, Derek Schmidt of Kansas, Daniel Cameron of Kentucky, Lynn Fitch of Mississippi, Eric S. Schmitt of Missouri, 

Austin Knudson of Montana, Douglas J. Peterson of Nebraska, Dave Yost 

of Ohio, John M. O'Connor of Oklahoma, Alan Wilson of South Carolina, 

Sean D. Reyes of Utah, Jason Miyares of Virginia, Patrick Morrissey of 

West Virginia, and Bridget Hill of Wyoming; for the State of Florida by 

Ashley Moody, Attorney General of Florida, Henry C. Whitaker, Solicitor 

General, Jeffrey Paul DeSousa, Chief Deputy Solicitor General, Darrick 

W. Monson, Assistant Solicitor General, and James H. Percival, Deputy 

Attorney General; for Citizens United et al. by William J. Olson, Jeremiah L. Morgan, Robert J. Olson, Michael Boos, and Daniel H. Jorjani; 

and for Texas Sheriffs and Counties et al. by Christopher J. Hajec and 

Kris W. Kobach. 
674 UNITED STATES v. TEXAS 

Opinion of the Court 

ment 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 offcials 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 

fnal 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. 

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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 confnes 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); California v. Texas, 593 U. S. –––, ––– (2021); Carney v. Adams, 

592 U. S. –––, ––– – ––– (2020); 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 

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676 UNITED STATES v. TEXAS 

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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 

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. 
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federal courts to consider.” Sprint Communications Co. v. 

APCC Services, Inc., 554 U. S. 269, 274 (2008); see TransUnion LLC, 594 U. S., at ––– – –––. 

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 

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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 insuffcient number of arrests or brought an insuffcient 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 –––; see Lujan, 504 U. S., 

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. 

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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 offcials); 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 

offcials, 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 

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(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 fve 

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 

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 offcer. To be sure, States sometimes have 

standing to sue the United States or an executive agency or offcer. See, 

e. g., New York v. United States, 505 U. S. 144 (1992). But in our system 

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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 injuof 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. 

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682 UNITED STATES v. TEXAS 

Opinion of the Court 

ries 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 ––– – –––; 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) specifcally 

authorize suits against the Executive Branch by a defned 

set of plaintiffs who have suffered concrete harms from executive under-enforcement and (ii) specifcally 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 

specifc authorization. The statutes, even under the States' 

own reading, simply say that the Department “shall” arrest 

certain noncitizens. Given the “deep-rooted nature of lawenforcement 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, specifc 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 suffce 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 

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. 
Cite as: 599 U. S. 670 (2023) 683 

Opinion of the Court 

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 nonenforcement 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 ramifcations 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 benefts 

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) (benefts 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 benefts”), 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 

5 This case concerns only arrest and prosecution policies, and we therefore address only that issue. As to detention, the Solicitor General has 

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684 UNITED STATES v. TEXAS 

Opinion of the Court 

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); Weyerhaeuser Co. v. United States Fish and Wildlife 

Serv., 586 U. S. –––, ––– – ––– (2018); 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 

ers 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 frst 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”). 

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Opinion of the Court 

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 

infuence those policies—oversight, appropriations, the legislative process, and Senate confrmations, to name a few. Cf. 

Raines, 521 U. S., at 829; Lincoln, 508 U. S., at 193. And 

through elections, American voters can both infuence Executive Branch policies and hold elected offcials 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. 

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”). 

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686 UNITED STATES v. TEXAS 

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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. 

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 
Cite as: 599 U. S. 670 (2023) 687 

Gorsuch, J., concurring in judgment 

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). 

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 677 (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 

fnal 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 insuffcient to afford the 

States standing to challenge the Guidelines. Ante, at 678. 

I confess to having questions about each of the reasons the 

Court offers. Start with its observation that the States 

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Gorsuch, J., concurring in judgment 

ing the Executive Branch to change its arrest or prosecution 

policies. Ante, at 677, 678. 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) (internal quotation marks omitted). But, again, the 

district court found that the Guidelines impose “signifcant 

costs” on the States. 606 F. Supp. 3d, at 495. The Court 

today does not set aside this fnding 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 –––; see also 

Uzuegbunam v. Preczewski, 592 U. S. –––, ––– (2021). 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). 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 678. 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 diffculty 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 

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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 678–680. So much so that “courts generally lack meaningful standards for assessing the propriety of [the Executive Branch's] enforcement choices.” Ante, at 679. 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 683, n. 5. It's a curious 

qualifcation. 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 qualifcation 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 682. But the Court declines to say 

more than that because “the States have not advanced” such 

an argument. Ante, at 683. 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 677 (internal quotation marks omitted). 

The States proved that the Guidelines increase the number 
690 UNITED STATES v. TEXAS 

Gorsuch, J., concurring in judgment 

of aliens with criminal convictions and fnal 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 offcials 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 offcials to 

take or to refrain from taking actions to enforce, implement, 

or otherwise carry out the specifed statutory provisions.” 

Id., at –––. 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– 

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500. And vacatur, the district court reasoned, does not offend § 1252(f)(1), because it does not entail an order directing 

any federal offcial 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 

offcials 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 

offcials possess the same underlying prosecutorial discretion. Nor does such a decree require federal offcials 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 diffculty, the States offer this reply. As 

a practical matter, they say, we can expect federal offcials 

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 offcials 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. 255, 294 (2023). If the rule were 

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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 720 (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). 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 fled this suit, however, the possibility that it might 

fnd 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 

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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 offcials with their prosecutorial discretion intact. See supra, at 691. 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 fnds a remedy merited, 

it provides party-specifc 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). 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 

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cle 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 defne the rights and duties of sometimes millions of people who are not parties before them. 

Three years ago, I refected 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). 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] conficting” 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). 

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, 

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598 U. S. –––, ––– (2023) (Alito, J., dissenting from grant of 

application for stays); Arizona v. Mayorkas, 598 U. S. 

–––, ––– – ––– (2023) (statement of Gorsuch, J.). 

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 farreaching” 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 fnds 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 
696 UNITED STATES v. TEXAS 

Gorsuch, J., concurring in judgment 

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) (defning “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) (defning “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. 60 Stat. 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 

fts perfectly within this design. Understanding the phrase 

as authorizing a remedy does not. 

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What follows in § 706 appears to confrm 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 fnd 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) 

(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, fndings, 

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 defcient agency 

action, fndings, 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, fndings, and 

conclusions.” The APA defnes “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 “fndings.” Often, judges disregard 

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factual fndings 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 fndings 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 offcer or offcers . . . 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 
Cite as: 599 U. S. 670 (2023) 699 

Gorsuch, J., concurring in judgment 

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 feld. 

C 

As always, there are arguments on the other side of the 

ledger, and the States tee up several. They frst 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 

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Gorsuch, J., concurring in judgment 

of appeals.” Garland v. Ming Dai, 593 U. S. –––, ––– (2021). 

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 confrm the availability of a traditional remedy to 

address agency inaction. The same could be said about 

§ 705; it might just confrm 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 refect 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, 

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Gorsuch, J., concurring in judgment 

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 affrmed. 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 721, 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 

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Gorsuch, J., concurring in judgment 

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 beneft 

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) 

(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 beneft from their effort to 

litigate the case and the court's effort to decide it. Judges 

may think effciency and uniformity favor the broadest possible relief. But there are serious countervailing consideraPage Proof Pending Publication
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Gorsuch, J., concurring in judgment 

tions. 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 beneft 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 

“beneft” 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 confdence 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-specifc 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 
704 UNITED STATES v. TEXAS 

Barrett, J., concurring in judgment 

every lawsuit. It preserves a forum for plaintiffs seeking 

relief for concrete and personal harms while fltering 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). 

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. 686 (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 674 (quoting Linda R. S. v. Richard D., 410 U. S. 

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Barrett, J., concurring in judgment 

614, 619 (1973)). In other words, the Court says, the States 

have not asserted a “ `judicially cognizable interest' ” in this 

case. Ante, at 677. Respectfully, I would not take this 

route. 

I 

To begin with, I am skeptical that Linda R. S. suffces 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 specifc 

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 diffcult' to establish” given the causation 

and redressability issues that may arise. Lujan v. DefendPage Proof Pending Publication
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Barrett, J., concurring in judgment 

ers 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 fnal . . . 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' infuence 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 

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Barrett, J., concurring in judgment 

particular target. Given all of this, I would not treat Linda 

R. S. as the “leading precedent” for resolving this case. 

Ante, at 677. 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 678. 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 682. There, we 

reasoned that given “[t]he deep-rooted nature of lawenforcement 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 682. 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 678. 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 

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Barrett, J., concurring in judgment 

any such limit should be expressed through Article III's 

defnition 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 689 (opinion of Gorsuch, J.). 

The Court leans, too, on principles set forth in Heckler v. 

Chaney, 470 U. S. 821 (1985). Ante, at 680, 682–683. 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 confation of Heckler with 

standing doctrine is likely to cause confusion. See ante, at 

680 (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 
Cite as: 599 U. S. 670 (2023) 709 

Alito, J., dissenting 

other decisions. See ante, at 687–689 (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. 

Justice Alito, dissenting. 

The Court holds Texas lacks standing to challenge a federal policy that inficts 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 fndings 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 interbranch 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 

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 

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Alito, J., dissenting 

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 confrm Presidential nominees, and impeachment and 

removal—but otherwise Congress and the American people 

must simply wait until the President's term in offce 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 683, n. 5. But the Court provides no principled 

explanation for drawing the line at this point, and that raises 

Texas clearly meets our test for Article III standing, it is not necessary 

to consider whether the other plaintiff, the State of Louisiana, also satisfes that test. 

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Alito, J., dissenting 

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 feld 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 fawed. 

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Alito, J., dissenting 

I 

The Court's opinion omits much that is necessary to understand the signifcance 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 fndings 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 fgured 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) (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) 

2 The Immigration and Naturalization Service was merged into DHS 

in 2003. 

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Alito, J., dissenting 

provides that the Government “shall detain [an] alien” 

“[d]uring the removal period,” which often begins either 

when an “order of removal becomes administratively fnal” 

or when an “alien is released from detention or confnement” 

not arising from an 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); Nielsen, 586 U. S., 

at ––– – –––. Until quite recently, that was the Government's understanding as well. See Biden v. Texas, 597 U. S. 

–––, ––– – ––– (2022) (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 –––. If the Executive had possessed the 

discretion to decline to enforce the new mandates in light of 

“resource constraints,” see ante, at 680, those transition 

rules would have been entirely “superfuous.” Nielsen, 586 

U. S., at –––. 

Despite this clear text and background, the majority now 

claims that the President's “enforcement discretion” survived these mandates, ante, at 679, but there is no basis for 

that conclusion. Certainly it is not supported by the cases 

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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 “fve Presidential administrations” sometimes neglected the mandates 

is likewise irrelevant. See ante, at 680. 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), 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 confnement 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) 

(defning “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, Immigration and Customs Enforcement 

(ICE), an arm of DHS, issued a second memorandum that 

slightly modifed the earlier priorities and stated that “ `preapproval' ” would generally be required “for enforcement actions” against persons outside these priority groups. Id., at 

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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 nonstatutory “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 

fatly contradicted those mandates by stating that qualifying 

convictions were insuffcient 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 fndings 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 identifed 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 

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Alito, J., dissenting 

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 frst place), 

those burdens fall on the State. 

After reviewing the parties' evidence, the District Court 

found that in the frst month after the substantive policy 

change brought about by the January 2021 DHS memorandum, ICE had rescinded 141 detainers in Texas.3 Ninetyfve 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 identifed 15 specifc 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 fndings of fact and historical data, the District Court identifed 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 dollarsand-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 

3 This fgure 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. 
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Alito, J., dissenting 

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 fnal 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 fndings 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 frst explain why Texas 

easily met its burden to show a concrete, particularized in4 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. 

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jury 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 fndings, 

which must be accepted unless clearly erroneous, quantifed 

the cost of criminal supervision of aliens who should have 

been held in DHS custody and also identifed other burdens 

that Texas had borne and would continue to bear going forward. These fndings suffced to establish a concrete injury 

that was specifc to Texas. TransUnion LLC v. Ramirez, 

594 U. S. –––, ––– (2021); see ante, at 676 (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 fndings 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 681, n. 3. But while it is certainly true that 

indirect injuries may be harder to prove, an indirect fnancial 

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 fnancial injury. 

Ante, at 688 (opinion concurring in judgment) (citing Department of Commerce v. New York, 588 U. S. –––, ––– – ––– 

(2019)). There is no justifcation for a conficting 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 

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Alito, J., dissenting 

result in many cases is that the State must continue its supervision. As noted, the District Court made specifc fndings about the fnancial 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 

fnancial. 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 

offcers 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 frst is contrary to precedent, and the second should not 

be addressed in this case. 

The frst 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. In5 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.” 

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Alito, J., dissenting 

stead, it vacated the Final Memorandum, and Justice Gorsuch argues that this relief did not redress Texas's injuries 

because it does not “require federal offcials to change how 

they exercise [their prosecutorial] discretion in the [Final 

Memorandum's] Guidelines' absence.” Ante, at 691. 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 –––. We have not been asked to revisit 

this holding, see id., at ––– – ––– (Barrett, J., dissenting), 

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 satisfes 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 satisfed redressability because 

“it [was] substantially likely that the President and other executive . . . offcials 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 

offcers 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” 

6 While only four of eight Justices fnding 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 ratifed this 

reasoning. See Utah v. Evans, 536 U. S. 452, 460, 463–464 (2002). 

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Alito, J., dissenting 

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 701 (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 redefnes our understanding of the constitutional limits on otherwise-available lawsuits. It is to this misunderstanding that I now turn. 

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 –––. 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 suffciency of DHS's procedures. 

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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 676 

(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 

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Alito, J., dissenting 

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, 

fnancial and non-fnancial, inficted 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 briefng, 

the majority can only spare a passing footnote for that important precedent. Ante, at 685, 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 frst declines to say 

Massachusetts was correctly decided and references the 

“disagreements that some may have” with that decision. 

Ante, at 685, 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.' ” 

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Ante, at 685, n. 6 (quoting 549 U. S., at 527) (emphasis 

added). 

The problem with this argument is that the portion of 

Massachusetts to which the footnote refers deals not with 

its key Article III holding, but with the scope of review that 

is “ordinarily” available under the statutory scheme. Importantly, Massachusetts frames its statement about declining enforcement as restating the rule of Heckler 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 682–683. 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 688– 

689 (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 

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discretion that exempted certain religious employers from 

compliance with a contraceptive-coverage mandate. Id., 

at ––– – –––. 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 679. 

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 suffced 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 ––– – –––. 

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 defciencies in its analysis.8 The majority 

says that the “leading precedent” supporting its holding is 

8 The Court also appeals to “historical experience” and “longstanding 

historical practice.” Ante, at 678, 686 (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). 
726 UNITED STATES v. TEXAS 

Alito, J., dissenting 

Linda R. S. v. Richard D., 410 U. S. 614 (1973). Ante, 

at 677. But as Justice Barrett notes, this Court has already defnitively 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 705 

(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 677. 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 707–708. 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 

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Alito, J., dissenting 

when “unharmed plaintiffs” are before the Court that Article 

III forecloses interference with the “discretion of the Executive Branch.” 594 U. S., at ––– (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 677, 681. The majority lists fve 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 fnd standing. 

In addition, the Court is unwilling to say that cases in four 

of these fve 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 681. 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 

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situation in which Congress “(i) specifcally authorize[s] suits 

against the Executive Branch by a defned set of plaintiffs 

who have suffered concrete harms from executive underenforcement and (ii) specifcally authorize[s] the Judiciary to 

enter appropriate orders requiring additional arrests or 

prosecutions by the Executive Branch.” Ante, at 681–682 

(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 suffciently concrete and particularized 

to satisfy the frst 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 682, 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 682 (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 

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Alito, J., dissenting 

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 benefts or legal status . . . because the challenged policy might 

implicate more than simply the Executive's traditional enforcement discretion.” Ante, at 683. 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 benefts, 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 benefts 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 fnally, 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.” Ibid. (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 

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730 UNITED STATES v. TEXAS 

Alito, J., dissenting 

the § 1226(c) arrest requirement. Ante, at 674, 685. 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 683, 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 706 

(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 –––. 

In sum, with the exception of cases in the frst (very small) 

category (civil cases involving selective-prosecution claims), 

the majority does not identify any category of cases that it 

would defnitely except from its general rule. In addition, 

category two confates 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 fve actually encompasses 

the case before us. 

IV 

The Court declares that its decision upholds “[o]ur constitutional system of separation of powers,” ante, at 681, but as 

I said at the outset, the decision actually damages that system by improperly infating the power of the Executive and 

cutting back the power of Congress and the authority of the 
Cite as: 599 U. S. 670 (2023) 731 

Alito, J., dissenting 

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 fexible policy. And the Court's answer today is that 

the Executive's policy choice prevails unless Congress, by 

withholding funds, refusing to confrm 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 pow9 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 684. 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 identifes a 

unique “wholesale failure” by the enforcement authority, Demore v. Kim, 

538 U. S. 510, 518 (2003). 

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Alito, J., dissenting 

ers. 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 fexing 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 

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). 

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Alito, J., dissenting 

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 

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; Reinstein, Limits 

281; S. Prakash, The Essential Meaning of Executive Power, 2003 U. Ill. 

L. Rev. 701, 726, n. 113 (2003); C. May, Presidential Defance of “Unconstitutional” Laws: Reviving the Royal Prerogative 16, and n. 58 (1998); 

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Alito, J., dissenting 

(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 

obligation 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 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 Offce 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 

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). 

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Alito, J., dissenting 

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 frm 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 frst 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 fnal 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 676. 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 unfagging 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. 

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Reporter’s Note 

The attached opinion has been revised to refect the usual publication 

and citation style of the United States Reports. The revised pagination 

makes available the offcial United States Reports citation in advance of 

publication. The syllabus has been prepared by the Reporter of Decisions 

for the convenience of the reader and constitutes no part of the opinion of 

the Court. A list of counsel who argued or fled briefs in this case, and 

who were members of the bar of this Court at the time this case was 

argued, has been inserted following the syllabus. Other revisions may 

include adjustments to formatting, captions, citation form, and any errant 

punctuation. The following additional edits were made: 

None