Biden v. TexasBiden v. Texas
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
In January 2019, the Department of Homeland Security began to implement the Migrant Protection Protocols (MPP). Under MPP, certain non-Mexican nationals arriving by land from Mexico were returned to Mexico to await the results of their removal proceedings under section 1229a of the Immigration and Nationality Act (INA). MPP was implemented pursuant to a provision of the INA that applies to aliens “arriving on land . . . from a foreign territory contiguous to the United States” and provides that the Secretary of Homeland Security “may return the alien to that territory pending a proceeding under section 1229a.”
The States of Texas and Missouri (respondents) brought suit in the Northern District of Texas against the Secretary and others, asserting that the June 1 Memorandum violated the INA and the Administrative Procedure Act (APA). The District Court entered judgment for respondents. The court first concluded that terminating MPP would violate the INA, reasoning that section 1225 of the INA “provides the government two options” with respect to illegal entrants: mandatory detention pursuant to
While the Government‘s appeal was pending, the Secretary released the October 29 Memoranda, which again announced the termination of MPP and explained anew his reasons for doing so. The Government then moved to vacate the injunction on the ground that the October 29 Memoranda had superseded the June 1 Memorandum. But the Court of Appeals denied the motion and instead affirmed the District Court‘s judgment in full. With respect to the INA question, the Court of Appeals agreed with the District Court‘s analysis that terminating the program would violate the INA, concluding that the return policy was mandatory so long as illegal entrants were being released into the United States. The Court of Appeals also held that “[t]he October 29 Memoranda did not constitute a new and separately reviewable ‘final agency action.’ ” 20 F. 4th 928, 951.
Held: The Government‘s rescission of MPP did not violate section 1225 of the INA, and the October 29 Memoranda constituted final agency action. Pp. 8–25.
(a) Beginning with jurisdiction, the injunction that the District Court entered in this case violated
The text of the provision makes that clear. Section 1252(f )(1) deprives courts of the power to issue a specific category of remedies: those that “enjoin or restrain the operation of ” the relevant sections of the statute. And Congress included that language in a provision whose title—“Limit on injunctive relief “—makes clear the narrowness of its scope. Moreover, the provision contains a parenthetical that explicitly preserves this Court‘s power to enter injunctive relief. If section 1252(f )(1) deprived lower courts of subject matter jurisdiction to adjudicate any non-individual claims under sections 1221 through 1232, no such claims could ever arrive at this Court, rendering the specific carveout for Supreme Court injunctive relief nugatory.
(b) Turning to the merits,
Respondents and the Court of Appeals concede that point, but urge an inference from the statutory structure: because section 1225(b)(2)(A) makes detention mandatory, they argue, the otherwise-discretionary return authority in section 1225(b)(2)(C) becomes mandatory when the Secretary violates that mandate. The problem is that the statute does not say anything like that. The statute says “may.” If Congress had intended section 1225(b)(2)(C) to operate as a mandatory cure of any noncompliance with the Government‘s detention obligations, it would not have conveyed that intention through an unspoken inference in conflict with the unambiguous, express term “may.” The contiguous-territory return authority in section 1225(b)(2)(C) is discretionary—and remains discretionary notwithstanding any violation of section 1225(b)(2)(A).
The historical context in which section 1225(b)(2)(C) was adopted confirms the plain import of its text. Section 1225(b)(2)(C) was added to the statute more than 90 years after the “shall be detained” language that appears in section 1225(b)(2)(A). And the provision was enacted in response to a BIA decision that had questioned the legality of the contiguous-territory return practice. Moreover, since its enactment, every Presidential administration has interpreted section 1225(b)(2)(C) as purely discretionary, notwithstanding the consistent shortfall of funds to comply with section 1225(b)(2)(A).
The foreign affairs consequences of mandating the exercise of contiguous-territory return likewise confirm that the Court of Appeals erred. Interpreting section 1225(b)(2)(C) as a mandate imposes a significant burden upon the Executive‘s ability to conduct diplomatic relations with Mexico, one that Congress likely did not intend section 1225(b)(2)(C) to impose. And finally, the availability of parole as an
(c) The Court of Appeals also erred in holding that “[t]he October 29 Memoranda did not constitute a new and separately reviewable ‘final agency action.’ ” 20 F. 4th, at 951. Once the District Court vacated the June 1 Memorandum and remanded to DHS for further consideration, DHS had two options: elaborate on its original reasons for taking action or ” ‘deal with the problem afresh’ by taking new agency action.” Department of Homeland Security v. Regents of Univ. of Cal., 591 U. S. ___, ___. The Secretary selected the second option from Regents: He accepted the District Court‘s vacatur and dealt with the problem afresh. The October 29 Memoranda were therefore final agency action for the same reasons that the June 1 Memorandum was final agency action: Both “mark[ed] the ‘consummation’ of the agenсy‘s decisionmaking process” and resulted in “rights and obligations [being] determined.” Bennett v. Spear, 520 U. S. 154, 178.
The various rationales offered by respondents and the Court of Appeals in support of the contrary conclusion lack merit. First, the Court of Appeals erred to the extent it understood itself to be reviewing an abstract decision apart from the specific agency actions contained in the June 1 Memorandum and October 29 Memoranda. Second, and relatedly, the October 29 Memoranda were not a mere post hoc rationalization of the June 1 Memorandum. The prohibition on post hoc rationalization applies only when the agency proceeds by the first option from Regents. Here, the Secretary chose the second option from Regents and “issue[d] a new rescission bolstered by new reasons absent from the [June 1] Memorandum.” 591 U. S., at ___. Having returned to the drawing table, the Secretary was not subject to the charge of post hoc rationalization.
Third, respondents invoke Department of Commerce v. New York, 588 U. S. ___. But nothing in this record suggests a “significant mismatch between the decision the Secretary made and the rationale he provided.” Id., at ___. Relatedly, the Court of Appeals charged that the Secretary failed to proceed with a sufficiently open mind. But this Court has previously rejected criticisms of agency closemindedness based on an identity between proposed and final agency action. See Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, 591 U. S. ___, ___. Finally, the Court of Appeals erred to the extent it viewed the Government‘s decision to appeal the District Court‘s injunction as relevant to the question of the October 29 Memoranda‘s status as final agency action. Nothing prevents an agency from undertaking new agency action while simultaneously appealing an adverse
20 F. 4th 928, reversed and remanded.
ROBERTS, C. J., delivered the opinion of the Court, in which BREYER, SOTOMAYOR, KAGAN, and KAVANAUGH, JJ., joined. KAVANAUGH, J., filed a concurring opinion. ALITO, J., filed a dissenting opinion, in which THOMAS and GORSUCH, JJ., joined. BARRETT, J., filed a dissenting opinion, in which THOMAS, ALITO, and GORSUCH, JJ., joined as to all but the first sentence.
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court оf the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
CHIEF JUSTICE ROBERTS delivered the opinion of the Court.
In January 2019, the Department of Homeland Security—under the administration of President Trump—established the Migrant Protection Protocols. That program provided for the return to Mexico of non-Mexican aliens who had been detained attempting to enter the United States illegally from Mexico. On Inauguration Day 2021, the new administration of President Biden announced that the program would be suspended the next day, and later that year sought to terminate it. The District Court and the Court of Appeals, however, held that doing so would violate the Immigration and Nationality Act, concluding that the return policy was mandatory so long as illegal entrants were being released into the United States. The District Court also held that the attempted rescission of the program was inadequately explained in violation of the Administrative Procedure Act. While its appeal was pending, the Government took new action to terminate the policy with a more detailed explanation. But the Court of Appeals held that this new action was not separately reviewable final agency
The questions presented are whether the Government‘s rescission of the Migrant Protection Protocols violated the Immigration and Nationality Act and whether the Government‘s second termination of the policy was a valid final agency action.
I
A
On December 20, 2018, then-Secretary of Homeland Security Kirstjen Nielsen announced a new program called Remain in Mexico, also known as the Migrant Protection Protocols (MPP). MPP was created in response to an immigration surge at the country‘s southern border, and a resulting “humanitarian and border security crisis” in which federal immigration officials were encountering approximately 2,000 inadmissible aliens each day. 554 F. Supp. 3d 818, 831 (ND Tex. 2021). MPP provided that certain non-Mexican nationals arriving by land from Mexico would bе returned to Mexico to await the results of their removal proceedings under
MPP was implemented pursuant to express congressional authorization in the Immigration and Nationality Act (INA), which provides that “[i]n the case of an alien . . . who is arriving on land (whether or not at a designated port of arrival) from a foreign territory contiguous to the United States, the Attorney General may return the alien to that territory pending a proceeding under section 1229a of this title.” 66 Stat. 163, as added and amended,
A separate provision of the same section of the INA states that if “an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a proceeding under section 1229a of this title.”
In January 2019, DHS began implementing MPP, initially in San Diego, California, then in El Paso, Texas, and Calexico, California, and then nationwide. By December 31, 2020, DHS had enrolled 68,039 aliens in the program.
Following the change in Presidential administrations, however, the Biden administration sought to terminate the program. On January 20, 2021, the Acting Secretary of Homeland Security wrote that “[e]ffective January 21, 2021, the Department will suspend new enrollments in [MPP] pending further review of the program. Aliens who are not already enrolled in MPP should be processed under other existing legal authorities.” Id., at 836. President Biden also issued Executive Order No. 14010, which directed the new Secretary of Homeland Security, Alejandro N. Mayorkas, to “promptly review and determine whether
On June 1, 2021, Secretary Mayorkas issued a memorandum officially terminating MPP (the June 1 Memorandum). In that memorandum, the Secretary noted his determination “that MPP [d]oes not adequately or sustainably enhance border management in such a way as to justify the program‘s extensive operational burdens and other shortfalls.” App. to Pet. for Cert. 351a. He also emphasized that, since its inception, MPP had “played an outsized role in [DHS‘s] engagement with the Government of Mexico,” given the “significant attention that it draws away from other elements that necessarily must be more central to the bilateral relationship.” Id., at 357a. For those and other reasons, the Secretary announced that he was “by this memorandum terminating the MPP program,” and “di-rect[ed] DHS personnel to take all appropriate actions to terminate MPP, including taking all steps necessary to rescind implementing guidance and other directives or policy guidance issued to implement the program.” Id., at 348a–349a.
B
On April 13, 2021, the States of Texas and Missouri (respondents) initiated this lawsuit in the Northern District of Texas against Secretary Mayorkas and others. Respondents’ initial complaint challenged the Acting Secretary‘s January 20 suspension of new enrollments in MPP, but following the June 1 Memorandum, they amended their complaint to challenge the Secretary‘s June 1 rescission of the entire program. The amended complaint asserted that the June 1 Memorandum violated the INA and the Administrative Procedure Act (APA),
The District Court conducted a one-day bench trial and
Based on these conclusions, the District Court “vacated [the June 1 Memorandum] in its entirety and remanded to DHS for further consideration.” Id., at 857 (boldface and capitalization omitted). And it imposed a nationwide injunction ordering the Government to “enforce and implement MPP in good faith until such a time as it has been lawfully rescinded in compliance with the APA and until such a time as the federal government has sufficient detention capacity to detain all aliens subject to mandatory detention under [section 1225] without releasing any aliens because of a lack of detention resources.” Ibid. (emphasis in original).
The Government appealed and sought a stay of the injunction, which the District Court and the Court of Appeals each denied. The Government then applied to this Court for a stay. The Court denied the application, finding that the Government “had failed to show a likelihood of success on the claim that the [June 1 Memorandum] was not arbitrary and capricious.” 594 U. S. ___ (2021). The Court did not address the District Court‘s interpretation of the INA. The parties proceeded to briefing in the Court of Appeals.
On October 29, the Secretary released a four-page memorandum that again announced the termination of MPP, along with a 39-page addendum explaining his reasons for doing so (the October 29 Memoranda). As the Secretary explained, this new assessment of MPP “examined considerations that the District Court determined were insufficiently addressed in the June 1 memo, including claims that MPP discouraged unlawful border crossings, decreased the filing of non-meritorious asylum claims, and facilitated more timely relief for asylum seekers, as well as predictions that termination of MPP would lead to a border surge, cause [DHS] to fail to comply with alleged detention obligations under the [INA], impose undue costs on states, and put a strain on U. S.-Mexico relations.” App. to Pet. for Cert. 259a–260a.
The Secretary acknowledged what he called “the strongest argument in favor of retaining MPP: namely, the significant decrease in border encounters following the determination to implement MPP across the southern border.” Id., at 261a. But he nonetheless concluded that the program‘s “benefits do not justify the costs, particularly given the way in which MPP detracts from other regional and domestic goals, foreign-policy objectives, and domestic policy initiatives that better align with this Administration‘s values.” Ibid. Finally, the Secretary once again noted that “[e]fforts to implement MPP have played a particularly outsized role
In light of those conclusions, the Secretary announced that he was once again “hereby terminating MPP.” Id., at 263a. He explained that DHS would “continue complying with the [District Court‘s] injunction requiring good-faith implementation and enforcement of MPP.” Id., at 264a. But he noted that “the termination of MPP” would be “implemented as soon as practicable after a final judicial decision to vacate” that injunction. Ibid. The Government then moved to vacate the injunction on the ground that the October 29 Memoranda had superseded the June 1 Memorandum, but the Court of Appeals denied the motion.
The Court of Appeals instead affirmed the District Court‘s judgment in full. With respect to the INA question, the Court of Appeals agreed with the District Court‘s analysis of the relevant provisions. That is, the court explained,
The Court of Appeals also held that “[t]he October 29 Memoranda did not constitute a new and separately reviewable ‘final agency action.’ ” Id., at 951. The Court of Appeals distinguished “DHS‘s June 1 decision to terminate MPP,” which it claimed “had legal effect,” from the June 1 Memorandum, the October 29 Memoranda, and “any other subsequent memos,” which it held “simply explained DHS‘s decision.” Ibid. The Court of Appeals then criticized the Government for proceeding “without a hint of an intention
We granted certiorari, 595 U. S. ___ (2022), and expedited consideration of this appeal at the Government‘s request.
II
We begin with jurisdiction. The Government contends that the injunction the District Court entered was barred by
“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 [
8 U. S. C. §§1221–1232 ], other than with respect to the application of such provisions to an individual alien against whom proceedings under [those provisions] have been initiated.”
As we recently held in Garland v. Aleman Gonzalez, 596 U. S. ___ (2022), section 1252(f )(1) “generally prohibits lower courts from entering injunctions that order federal officials to take or to refrain from taking actions to enforce, implement, or otherwise carry out the specified statutory provisions.” Id., at ___ (slip op., at 5). The District Court‘s injunction in this case violated that provision. But that fact simply presents us with the following question: whether section 1252(f )(1) deprives this Court of jurisdiction to reach the merits of an appeal, where the lower court entered a form of relief barred by that provision. See Steel Co. v. Citizens for Better Environment, 523 U. S. 83, 95 (1998)
Absent section 1252(f )(1), the District Court clearly had federal question jurisdiction over respondents’ suit, which asserted claims arising under two federal statutes, the INA and the APA. See
The text of the provision makes that clear. Section 1252(f )(1) deprives courts of the power to issue a specific category of remedies: those that “enjoin or restrain the operation of ” the relevant sections of the statute. A limitation on subject matter jurisdiction, by contrаst, restricts a court‘s “power to adjudicate a case.” United States v. Cotton, 535 U. S. 625, 630 (2002). Section 1252(f )(1) bears no indication that lower courts lack power to hear any claim brought under sections 1221 through 1232. If Congress had wanted the provision to have that effect, it could have said so in words far simpler than those that it wrote. But Congress instead provided that lower courts would lack jurisdiction to “enjoin or restrain the operation of ” the relevant provisions, and it included that language in a provision whose title—“Limit on injunctive relief “—makes clear the narrowness of its scope.
Statutory structure confirms our conclusion. Elsewhere in section 1252, where Congress intended to deny subject matter jurisdiction over a particular class of claims, it did so unambiguously.
Our prior cases have already embraced this straightforward conclusion. Most relevantly, the Court previously encountered a virtually identical situation in Nielsen v. Preap, 586 U. S. ___ (2019). There, as here, the plaintiffs sought declaratory as well as injunctive relief in their complaint, and there, as here, the District Court awarded only the latter. Yet this Court proceeded to reach the merits of the suit, notwithstanding the District Court‘s apparent violation of section 1252(f )(1), by reasoning that “[w]hether the [District] [C]ourt had jurisdiction to enter such an injunction is irrelevant because the District Court had jurisdiction to entertain the plaintiffs’ request for declaratory relief.” Id., at ___–___ (ALITO, J., joined by ROBERTS, C. J., and KAVANAUGH, J.) (slip op., at 8–9); see also Jennings v. Rodriguez, 583 U. S. ___, ___ (2018) (BREYER, J., joined by Ginsburg and SOTOMAYOR, JJ., dissenting) (slip op., at 31) (concluding that “a court could order declaratory relief ” notwithstanding section 1252(f )(1)). Our disposition in Preap is inconsistent with an interpretation of the limitation in section 1252(f )(1) that strips the lower courts of subject matter jurisdiction.3 And previous statements from this
In short, we see no basis for the conclusion that section 1252(f )(1) concerns subject matter jurisdiction. It is true that section 1252(f )(1) uses the phrase “jurisdiction or authority,” rather than simply the word “authority.” But “[j]urisdiction . . . is a word of many, too many meanings.” Steel Co., 523 U. S., at 90. And the question whether a court has jurisdiction to grant a particular remedy is different from the question whether it has subject matter jurisdiction over a рarticular class of claims. See Reed Elsevier, Inc. v. Muchnick, 559 U. S. 154, 163–164 (2010) (concluding that “[t]he word ‘jurisdiction’ . . . says nothing about whether a federal court has subject-matter jurisdiction to adjudicate claims“). Section 1252(f )(1) no doubt deprives the lower courts of “jurisdiction” to grant classwide injunctive relief. See Aleman Gonzalez, 596 U. S., at ___ (slip op., at 11). But that limitation poses no obstacle to jurisdiction in this Court.4
III
We now turn to the merits.
Respondents and the Court of Appeals concede this point. Brief for Respondents 21 (contiguous-territory return is a “discretionary authority“); 20 F. 4th, at 996, n. 18 (“It‘s obviously true that §1225(b)(2)(C) is discretionary.“). They base their interpretation instead on
The problem is that the statute does not say anything like that. The statute says “may.” And “may” does not just suggest discretion, it “clearly connotes” it. Opati, 590 U. S., at ___ (slip op., at 10) (emphasis in original); see also Jama, 543 U. S., at 346 (“That connotation is particularly apt where, as here, ‘may’ is used in contraposition to the word
The principal dissent emphasizes that section 1225(b)(2)(A) requires detention of all aliens that fall within its terms. See, e.g., post, at 8 (ALITO, J., dissenting) (“The language of
The historical context in which the provision was adopted confirms the plain import of its text. See, e.g., Niz-Chavez v. Garland, 593 U. S. ___, ___ (2021) (slip op., at 9) (textual analysis confirmed by “a wider look at [the statute‘s] structure and history“). Section 1225(b)(2)(C) was not added to the statute until 1996, in the Illegal Immigration Rеform and Immigrant Responsibility Act of 1996 (IIRIRA), §302, 110 Stat. 300–583—more than 90 years after the Immigration Act of 1903 added the “shall be detained” language that appears in section 1225(b)(2)(A). And section 1225(b)(2)(C) was enacted in the immediate aftermath of a Board of Immigration Appeals (BIA) decision that specifically called into question the legality of the contiguous-territory return practice. Prior to that decision, the longstanding practice of the Immigration and Naturalization Service (INS) had been to require some aliens arriving at land border ports of
In addition to contradicting the statutory text and context, the novelty of respondents’ interpretation bears mention. Since IIRIRA‘s enactment 26 years ago, every Presidential administration has interpreted
And the foreign affairs consequences of mandating the exercise of contiguous-territory return likewise confirm that the Court of Appeals erred.
By interpreting
Finally, we note that—as DHS explained in its October 29 Memoranda—the INA expressly authorizes DHS to process applicants for admission under a third option: parole. See
In sum, the contiguous-territory return authority in
IV
The Court of Appeals also erred in holding that “[t]he October 29 Memoranda did not constitute a new and separately reviewable ‘final agency action.‘” 20 F. 4th, at 951. To recap, the Secretary first attempted to terminate MPP through the June 1 Memorandum. As the Court of Appeals correctly held, that constituted final agency action. See id., at 947 (citing Bennett v. Spear, 520 U. S. 154 (1997)). But the District Court found that the Secretary‘s stated grounds in the June 1 Memorandum were inadequate, and therefore “vacated” the June 1 Memorandum and “remanded [the
As we explained two Terms ago in Department of Homeland Security v. Regents of Univ. of Cal., 591 U. S. ___ (2020), upon finding that the grounds for agency action are inadequate, “a court may remand for the agency to do one of two things.” Id., at ___ (slip op., at 13). “First, the agency can offer ‘a fuller explanation of the agency‘s reasoning at the time of the agency action.‘” Ibid. (emphasis deleted). If it chooses this route, “the agency may elaborate” on its initial reasons for taking the action, “but may not provide new ones.” Id., at ___ (slip op., at 14). Alternatively, “the agency can ‘deal with the problem afresh’ by taking new agency action.” Ibid. (quoting SEC v. Chenery Corp., 332 U. S. 194, 201 (1947) (Chenery II)). “An agency taking this route is not limited to its prior reasons.” Regents, 591 U. S., at ___ (slip op., at 14).
Here, perhaps in light of this Court‘s previous determination that the Government had “failed to show a likelihood of success on the claim that the [June 1 Memorandum] was not arbitrary and capricious,” 594 U. S. ___, the Secretary selected the second option from Regents: He accepted the District Court‘s vacatur and dealt with the problem afresh. The October 29 Memoranda made that clear “by its own terms,” Regents, 591 U. S., at ___ (slip op., at 14), in which the Secretary stated: “I am hereby terminating MPP. Effective immediately, I hereby supersede and rescind the June 1 memorandum.” App. to Pet. for Cert. 263a–264a. And consistent with that approach, the October 29 Memoranda offered several “new reasons absent from” the June 1 Memorandum, Regents, 591 U. S., at ___ (slip op., at 14), including an examination of the “considerations that the District Court determined were insufficiently addressed in the June 1 memo,” App. to Pet. for Cert. 259a.
The October 29 Memoranda were therefore final agency action for the same reasons that the June 1 Memorandum
The various rationales offered by respondents and the Court of Appeals in support of the contrary conclusion lack merit.8 First, the Court of Appeals framed the question by postulating the existence of an agency decision wholly apart from any “agency statement of general or particular applicability . . . designed to implement” that decision.
Second, and relatedly, respondents characterized the October 29 Memoranda as post hoc rationalizations of the June 1 Memorandum under our decision in Regents. Brief for Respondents 40 (“[T]he [October 29] Memoranda are nothing more than improper, post hoc rationalizations for terminating MPP.“); see also 20 F. 4th, at 961 (questioning how the October 29 Memoranda “[could] be anything more than post hoc rationalizations of the Termination Decision“). But Regents involved the exact opposite situation from this one. There, as here, DHS had attempted to rescind a prior administration‘s immigration policy, but a District Court found the rescission inadequately explained. Faced with the same two options outlined above, then-Secretary Nielsen elected the first option rather than the second. That is, she chose to “rest on the [original] Memorandum while elaborating on [her] prior reasoning,” rather than “issue a new rescission bolstered by new reasons absent from the [original] Memorandum.” 591 U. S., at ___ (slip op., at 14). As such, her elaboration “was limited to the agency‘s original reasons,” and was “‘viewed critically’ to ensure that the rescission [was] not upheld on the basis of impermissible ‘post hoc rationalization.‘” Id., at ___–___
The prohibition on post hoc rationalization applies only when the agency proceeds by the first option from Regents. Under that circumstance, because the agency has chosen to “rest on [its original action] while elaborating on its prior reasoning,” id., at ___ (slip op., at 14), the bar on post hoc rationalization operates to ensure that the agency‘s supplemental explanation is anchored to “the grounds that the agency invoked when it took the action,” Michigan v. EPA, 576 U. S. 743, 758 (2015). By contrast, as noted above, the Secretary here chose the second option from Regents, and “‘deal[t] with the problem afresh’ by taking new agency action.” 591 U. S., at ___ (slip op., at 14). That second option can be more procedurally onerous than the first—the agency “must comply with the procedural requirements for new agency action“—but the benefit is that the agency is “not limited to its prior reasons” in justifying its decision. Ibid. Indeed, the entire purpose of the October 29 Memoranda was for the Secretary to “issue a new rescission bolstered by new reasons absent from the [June 1] Memorandum,” ibid.—reasons that he hoped would answer the District Court‘s concerns from the first go-round. Having returned to the drawing table and taken new action, therefore, the Secretary was not subject to the charge of post hoc rationalization.
Third, respondents invoke our decision in Department of Commerce v. New York, 588 U. S. ___ (2019), to contend that DHS‘s failure to “hew[] to the administrative straight and narrow” deprives the October 29 Memoranda of the presumption of regularity that normally attends agency action, Brief for Respondents 43. As we explained in that case, “in reviewing agency action, a court is ordinarily limited to
The circumstances in this case do not come close to those in Department of Commerce. Nothing in this record suggests a “significant mismatch between the decision the Secretary made and the rationale he provided.” Id., at ___ (slip op., at 26). Respondents direct us instead to the Government‘s litigation conduct. But the examples of misconduct to which respondents refer—such as a failure to timely complete the administrative record, Brief for Respondents 42—have no bearing on the legal status of the October 29 Memoranda. And in any event, they fall well short of the “strong showing of bad faith or improper behavior,” Overton Park, 401 U. S., at 420, that we require before deviating from our normal rule that “[t]he grounds upon which an administrative order must be judged are those upon which the record discloses that its action was based,” SEC v. Chenery Corp., 318 U. S. 80, 87 (1943).
The Court of Appeals leveled the related but more modest charge that the Secretary failed to proceed with a sufficiently open mind. See, e.g., 20 F. 4th, at 955 (agency proceeded “without a hint of an intention to put the Termination Decision back on the chopping block and rethink
And the critique is particularly weak on these facts. The Court of Appeals took the agency to task for its September 29 announcement of its “inten[tion] to issue in the coming weeks a new memorandum terminating” MPP. 20 F. 4th, at 954; see ibid. (“Rather than announcing an intention to reconsider its Termination Decision, the announcement set forth DHS‘s conclusion in unmistakable terms.“). But that announcement came over six weeks after the District Court‘s August 13 remand—a substantial window of time for the agency to conduct a bona fide reconsideration.
More importantly, this Court has previously rejected criticisms of agency closemindedness based on an identity between proposed and final agency action. See Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, 591 U. S. ___, ___ (2020) (slip op., at 24) (“declin[ing] to evaluate the [agency‘s] final rules under [an] open-mindedness test” where interim and final rules were “virtually identical” but procedural requirements were otherwise satisfied). Similar principles refute the Court of Appeals’ criticism of the October 29 Memoranda for their failure to “alter the Termination Decision in any way.” 20 F. 4th, at 946. It is black-letter law that an agency that takes superseding ac
Finally, the Court of Appeals erred to the extent it viewed the Government‘s decision to appeal the District Court‘s injunction as relevant to the question of the October 29 Memoranda‘s status as final agency action. Nothing prevents an agency from undertaking new agency action while simultaneously appealing an adverse judgment against its original action. That is particularly so under the circumstances of this case. The second condition of the District Court‘s injunction, which purported to bind DHS to implement MPP in perpetuity subject only to congressional funding choices outside its control, as a practical matter left the Government no choice but to appeal. And the agency reasonably chose to accede to the District Court‘s APA analysis of the June 1 Memorandum and seek to ameliоrate those concerns in the meantime.
* * *
For the reasons explained, the Government‘s rescission of MPP did not violate
It is so ordered.
I agree with the Court that the District Court had jurisdiction over Texas‘s suit. I also agree with the Court that the Government prevails on the merits of the two specific legal questions presented here. I note, moreover, that six Members of the Court agree with the Court‘s merits conclusion. See post, at 1 (Barrett, J., dissenting).
I write separately to briefly elaborate on my understanding of the relevant statutory provisions and to point out one legal issue that remains open for resolution on remand.
When the Department of Homeland Security lacks sufficient capacity to detain noncitizens at the southern border pending their immigration proceedings (often asylum proceedings), the immigration laws afford DHS two primary options.
Option one: DHS may grant noncitizens parole into the United States if parole provides a “significant public benefit.”
In general, when there is insufficient detention capacity, both the parole option and the return-to-Mexico option are legally permissible options under the immigration statutes. As the recent history illustrates, every President since the late 1990s has employed the parole optiоn, and President Trump also employed the return-to-Mexico option for a relatively small group of noncitizens. Because the immigration statutes afford substantial discretion to the Executive, different Presidents may exercise that discretion differently. That is Administrative Law 101. See Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U. S. 29, 59 (1983) (Rehnquist, J., concurring in part and dissenting in part).
To be sure, the Administrative Procedure Act and this Court‘s decision in State Farm require that an executive agency‘s exercise of discretion be reasonable and reasonably explained. See id., at 43 (majority opinion); see also FCC v. Prometheus Radio Project, 592 U. S. ___, ___−___, ___ (2021) (slip op., at 7−8, 11); FCC v. Fox Television Stations, Inc., 556 U. S. 502, 514−515 (2009);
The question of whether DHS‘s October 29 decision satisfies the State Farm standard is not before this Court at this time. The Court today therefore properly leaves the State Farm issue for consideration on remand. See ante, at 18, 25; Tr. of Oral Arg. 67−68.
One final note: The larger policy story behind this case is the multi-decade inability of the political branches to provide DHS with sufficient facilities to detain noncitizens who seek to enter the United States pending their immigration proceedings. But this Court has authority to address only the legal issues before us. We do not have authority to end the legislative stalemate or to resolve the underlying policy problems.
With those additional comments, I join the Court‘s opinion in full.
In fiscal year 2021, the Border Patrol reportеd more than 1.7 million encounters with aliens along the Mexican border.1 When it appears that one of these aliens is not admissible, may the Government simply release the alien in this country and hope that the alien will show up for the hearing at which his or her entitlement to remain will be decided?
Congress has provided a clear answer to that question, and the answer is no. By law, if an alien is “not clearly and beyond a doubt entitled to be admitted,” the alien “shall be detained for a [removal] proceeding.”
Congress offered the Executive two—and only two—alternatives to detention. First, if an alien is “arriving on land” from “a foreign territory contiguous to the United
Due to the huge numbers of aliens who attempt to enter illegally from Mexico, DHS does not have the capacity to detain all inadmissible aliens encountered at the border, and no one suggests that DHS must do the impossible. But rather than avail itself of Congress‘s clear statutory alternative to return inadmissible aliens to Mexico while they await proceedings in this country, DHS has concluded that it may forgo that option altogether and instead simply release into this country untold numbers of aliens who are very likely to be removed if they show up for their removal hearings. This practice violates the clear terms of the law, but the Court looks the other way.
In doing so, the majority commits three main errors. First, it unnecessarily resolves difficult jurisdictional questions on which—due to the Government‘s litigation tactics—we have rеceived only hurried briefing and no argument. Second, when the majority reaches the merits, it contrives a way to overlook the clear statutory violations that result from DHS‘s decision to terminate the use of its contiguous-territory return authority. Finally, the majority unjustifiably faults the Court of Appeals for rejecting the Government‘s last-minute attempt to derail the ordinary appellate process. I cannot go along with any of this, and I therefore respectfully dissent.
I
In 2018, a surge of foreign migrants attempted to enter the United States unlawfully at the United States-Mexico border, creating a “‘humanitarian and border security crisis.‘” 554 F. Supp. 3d 818, 831 (ND Tex. 2021). Because
While the policy was in effect, DHS issued a memorandum in which it determined that MPP was “an indispensable tool in addressing the ongoing crisis at the southern border.” App. 189 (Department of Homeland Security: Assessment of the Migrant Protection Protocols (Oct. 28, 2019)). It concluded that MPP directly reduced the number of aliens unlawfully released into the United States and deterred others from attempting to cross the border unlawfully in the first place. 554 F. Supp. 3d, at 833. DHS found that total border encounters deсreased by 64 percent after MPP was implemented. App. 189. With MPP in place, aliens who lacked meritorious claims could no longer count on “a free ticket into the United States,” and as a result, many “voluntarily return[ed] home.” Id., at 192. MPP also helped DHS process meritorious asylum claims “within
Hours after his inauguration on January 20, 2021, President Biden issued an Executive Order suspending MPP, and the effects on the border were immediate. According to the Government‘s own data, border “encounters jump[ed] from 75,000 in January 2021,” when MPP was first suspended, to about “173,000 in April 2021.” 554 F. Supp. 3d, at 837.
Two States, Texas and Missouri, brought suit under the Administrative Procedure Act (APA) in April 2021, alleging that suspending MPP was arbitrary and capricious and violated the Immigration and Nationality Act (INA). The District Court ordered the Government to file the administrative record for the January suspension, and on May 31, 2021, the Government filed a three-line suspension memorandum as the entire administrative record. See id., at 856, n. 16. The next day, in a 7-page memo issued by the Secretary, DHS terminated the already-suspended program.
The States amended their complaint to challenge the June termination decision on largely the same grounds that they had advanced with respect to the January suspension. After a consolidated preliminary injunction hearing and a trial on the merits under
On September 29, 2021, while briefing in the Court of Appeals was underway, DHS announced that it intended to
II
I agree with the majority that the injunction entered by the District Court in this case exceeded its “jurisdiction or authority to enjoin or restrain the operation of ” the relevant statutes.
I agree with Justice Barrett that the majority should not go any further and should not resolve other questions about
As Justice Barrett explains, the interpretation of
“In addition, the lower courts lacked jurisdiction to grant injunctive relief under
8 U. S. C. [§]1252(f)(1) . This Court is considering the scope ofSection 1252(f)(1) in Garland v. Aleman Gonzalez, No. 20–322 (argued Jan. 11, 2022).” Brief for Petitioners 18, n. 3.
That footnote‘s reference to the Government‘s brief in Gonzalez raised an obvious question.
In the present case, the Government challenged the order of the District Court “set[ting] aside” under the APA,
Faced with this situation, the Court was correctly concerned about deciding the reach of
I would not do so. Because of the Government‘s request for a speedy decision, we established an expedited schedule for the filing of merits briefs and squeezed in oral argument on the next-to-last argument date. We would have been in a position to give thorough consideration to the
III
The Court is not only wrong to reach the merits of this
A
As described above, the INA gives DHS three options regarding the treatment of the aliens in question while they await removal or asylum proceedings. They may be (1) detained in this country or (2) returned to Mexico or (3) paroled on a case-by-case basis. Congress has provided no fourth option, but the majority now creates one. According to the majority, an alien who cannot be detained due to a shortage of detention facilities but could be returned to Mexico may simply be released. That is wrong.
1
The language of
The Jennings Court correctly accepted that argument, which was central to our holding. See 583 U. S., at ___ (slip op., at 13) (“Read most naturally, §§1225(b)(1) and (b)(2) thus mandate detention of applicants for admission until certain proceedings have concluded“). But now, in an about-face, the Government argues that “shall be detained” actually means “may be detained.” See Brief for Petitioners 29 (“[T]he Court will not construe a provision stating that law enforcement ‘shall’ take some action as a ‘true mandate’ absent ‘some stronger indication from the . . . Legislature‘“).
The Government was correct in Jennings and is wrong here. “[S]hall be detained” means “shall be detained.” The Government points out that it lacks the facilities to detain all the aliens in question, and no one questions that fact. But use of the contiguous-return authority would at least reduce the number of aliens who are released in violation of the INA‘s command. The District Court made a factual finding that rescinding MPP would cause additional violations of Congress‘s unambiguous detention mandate. 554 F. Supp. 3d, at 851–852. It also found that “the termination
Other than the argument that “shall” means “may,” the Government‘s only other textual argument is that it is paroling aliens “on a case-by-case basis for urgent humanitarian reasons or significant public benefit,” as permitted under
The majority claims that the Government‘s use of its parole authority under
For these reasons,
2
The majority‘s chief defense of the Government‘s rejection of MPP is based on a blinkered method of statutory interpretation that we have firmly rejected. The majority largely ignores the mandatory detention requirement imposed by
Read as a whole, the INA gives DHS discretion to choose from among only three options for handling the relevant category of inadmissible aliens. The Government must either: (1) detain them, (2) return them to a contiguous foreign nation, or (3) parole them into the United States on an individualized, case-by-case basis. These options operate in a hydraulic relationship: When it is not possible for the Government to comply with the statutory mandate to detain inadmissible aliens pending further proceedings, it must resort to one or both of the other two options in order to comply with the detention requirement to the greatest extent possible.
There is nothing strange about this interpretation of how the relevant provisions of the INA work together. Consider this example. Suppose a state law provides that every school district “shall” provide a free public education to every student from kindergarten through the 12th grade and that another statute says that a district “may” arrange for its students to attend high school in an adjacent district. A small district refuses to operate its own high school because it lacks the necessary funds, and this district also declines to arrange for its students to attend a school in an adjacent district because the law says only that a district “may” take that course of action. Refusing to exercise this
Other examples come readily to mind. Suppose that a building code says that every multi-unit residential building “shall” have at least two means of egress from upper floors, and suppose that another provision says that such a building “may” have an external fire escape. The owner of such a building refuses to construct a second internal stairway because the cost would be prohibitive and also declines to install a fire escape because the law says that option is discretionary. Would the owner‘s non-compliance be permitted?
Here is one more example. A State that operates its own motor vehicle inspection facilities has a law that says that every vehicle “shall” be inspected every year. The law also says that motorists “may” have their vehicles inspected at a licensed private garage. A motorist fails to have his car inspected because he must work during the time when the state facility is open and would be fired if he took time off. This motorist also declines to have his car inspected at a private garage that is open during his off hours because the law says only that he “may” use such a facility. Would the motorist escape a citation?
The answer in each of the above examples is that the failure to make use of the discretionary option would not be seen as a valid excuse for non-compliance with the command that certain conduct “shall” be performed, and it is also hard to see the difference between those examples and the situation here.
3
The majority‘s main reason for rejecting the argument just described is that the contiguous-return provision does
The mаjority also relies on the fact that the contiguous-return provision was enacted 90 years after the provision requiring detention and the fact that the circumstances under which the contiguous-return provision was adopted suggest that it was intended to serve only a “humble role.” Ante, at 16. Those circumstances cannot change what the relevant provisions say or the way in which they logically work together. See Exxon Mobil Corp. v. Allapattah Services, Inc., 545 U. S. 546, 568 (2005) (“Extrinsic materials have a role in statutory interpretation only to the extent that they shed a reliable light on the enacting Legislature‘s understanding of otherwise ambiguous terms“). The Court should not use extra-textual evidence to demote one of DHS‘s three lawful alternatives to the status of a historical footnote.
The majority and the concurrence fault the lower courts for intruding upon the foreign policy authority conferred on the President by Article II of the Constitution. Ante, at 16–17 (majority opinion); ante, at 3 (opinion of KAVANAUGH, J.). But enforcement of immigration laws often has foreign relations implications, and the Constitution gives Congress broad authority to set immigration policy. See
Finally, the majority emphasizes the fact that prior administrations have also failed to detain inadmissible aliens, but that practice does not change what the law demands. The majority cites no authority for the doctrine that the Executive can acquire authority forbidden by law through a process akin to adverse possession.
B
Not only does the majority fail to heed the clear language of the INA, but it gratuitously faults the Court of Appeals for what appears to be a fairly modest and correct conclusion: that the October 29 Memoranda purporting to re-terminate MPP did not ultimately affect the merits of the appeal of the judgment that was before that court. The Government issued its October 29 Memoranda after briefing in the Court of Appeals had been completed and only days before the appeal was set to be argued. Based on those memoranda, the Government asked the Court of Appeals to vacate the judgment below, but it did not provide a full administrative record or give the District Court an opportunity to review the purported new decision in the first instance by filing a
As I see it, the Government‘s litigation tactic—filing the October 29 Memoranda with a suggestion of mootness but without seeking to dismiss its appeal—could have triggered
First, the October 29 Memoranda did not moot the appeal. A case becomes moot only if it is impossible for the court to “‘grant any effectual relief.‘” Chafin v. Chafin, 568 U. S. 165, 172 (2013). Under this high standard, the Fifth Circuit was correct that the case was not moot. Although the Government claimed that the appeal was moot, it asked the Court of Appeals for relief, namely, vacatur of District Court‘s injunction. It was compelled to take that position because the October 29 Memoranda, by their own terms, did not take effect as long as that injunction remained in force. See 20 F. 4th, at 957. And without an appellate decision holding that the INA allows the Government to release aliens who could be returned to Mexico, the issuance of a new administrative order terminating MPP could not provide a ground for vacating the injunction. It is telling that the Government‘s briefing in this Court never suggests that the case was moot at the time of the Fifth Circuit‘s decision or that the case is now moot.
Second, the Court of Appeals did not err by declining to hold the appeal in abeyance. The Government originally asked the Court of Appeals to hold the appeal while it completed the process of issuing a new termination decision, but by the time of oral argument in that court, the Government claimed that such a decision had been issued. And the Government did not file a motion in the District Court
Third, the Court of Appeals correctly concluded that the October 29 Memoranda could not satisfy our criteria for a final agency action that could be reviewed in the first instance in the Court of Appeals under the APA. Like this Court, the courts of appeal are courts of “‘review, and not first view.‘” City of Austin v. Reagan Nat. Advertising of Austin, LLC, 596 U. S. ___, ___–___ (2022) (slip op., at 13–14) (quoting Zivotofsky v. Clinton, 566 U. S. 189, 201 (2012)). With no administrative record for the October 29 Memoranda before it, the Court of Appeals was in a poor position to assess whether the memoranda actually “mark[ed] the consummation of the agency‘s decisionmaking process,” Bennett v. Spear, 520 U. S. 154, 178 (1997) (internal quotation marks omitted). Moreover, the October 29 Memoranda did not purport to result in a final determination of “‘rights or obligations.‘” Ibid. As DHS acknowledged, “the termination of MPP” could not “be implemented” until there was “a final judicial decision to vacate the . . . injunction.” App. to Pet. for Cert. 264a, 270a. And until that was accomplished, the memoranda did not impose on DHS officers or employees any “‘obligatio[n]‘” to cease implementation of MPP. Bennett, 520 U. S., at 178. On this basis, the Fifth Circuit rightly understood that the October 29 Memoranda could have no legal effect while DHS was bound by an injunction to implement MPP in good faith and that this injunction would remain in force unless the Government‘s challenge to the June termination was
Even if the Fifth Circuit had somehow concluded that the October 29 Memoranda constituted final agency action with some future legal consequences, the Court does not explain what the Fifth Circuit should have done differently in the circumstances it faced. The Fifth Circuit had little ability to review whether the agency had acted reasonably. See Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U. S. 29 (1983). And the Fifth Circuit provided a reasonable explanation for its actions.
With these three options off the table, the Fifth Circuit reasonably chose the fourth option. It correctly concluded that the October 29 Memoranda did not affect its ability to review the District Court judgment. To find fault with proceeding in that fashion, the majority seems to assume that an administrative agency may obviate a district court decision setting aside agency action under
* * *
While I would affirm the Fifth Circuit if we reached the merits, I agree with the majority that the District Court on remand should consider in the first instance whether the October 29 Memoranda complied with
Justice Barrett, with whom Justice Thomas, Justice Alito, and Justice Gorsuch join as to all but the first sentence, dissenting.
I agree with the Court‘s analysis of the merits—but not with its decision to reach them. The lower courts in this case concluded that
* * *
In the normal course, we would vacate and remand this case for further proceedings in light of Aleman Gonzalez. Instead, the Court plows ahead to break new jurisdictional ground. Acting on a compressed timeline, it embraces a theory of
I have several doubts about the Court‘s analysis of
So it seems to me quite possible that
The Court breezes past other questions too. Most notably, it gives surprisingly little attention to a phrase on which it places significant weight:
While this interpretation has some surface appeal, the
Indeed, the Court explicitly chooses not to opine on some of the issues that might help explain the parenthetical‘s unusual reservation. See ante, at 12, n. 4. For example, the Court declines to decide whether the bar in
As a final touch, the Court asserts that our precedent has already charted this course. Ante, at 11–12. But the Court cannot muster much on that front. It cites a passing statement rejecting an inapposite argument that
* * *
Given all this, I would tread more carefully. We should let the lower courts be the first to address the substantial antecedent questions that
Notes
U. S. Customs and Border Protection, Southwest Land Border Encounters, FY Southwest Land Border Encounters by Month (chart) (May 3, 2022), https://www.cbp.gov/newsroom/stats/southwest-land-border-encounters (showing 1,734,686 total encounters in fiscal year 2021).
That policy was almost immediately enjoined by a Federal District Court. Innovation Law Lab v. Nielsen, 366 F. Supp. 3d 1110 (ND Cal. 2019). This Court stayed that injunction. Wolf v. Innovation Law Lab, 589 U. S. ___ (2020).
Alternatively, the Court could have put the case over to next Term, received full briefing, and heard argument in October.
“Subparagraph (A) shall not apply to an alien—
“(i) who is a crewman,
“(ii) to whom paragraph (1) applies, or
“(iii) who is a stowaway.”
If anything, the narrowness of the enumerated exceptions demonstrates the force of the rule: Detention for all others is mandatory.
JUSTICE ALITO contends that the October 29 Memoranda were not final agency action because they did not obligate DHS employees to immediately cease implementing MPP; instead, they required them to do so “as soon as practicable after a final judicial decision to vacate” the District Court‘s injunction. App. to Pet. for Cert. 264a. But as he acknowledges, the standard for final agency action is whether the action ”result[ed] in a final determination of ‘rights or obligations.’ ” Post, at 17 (quoting Bennett, 520 U. S., at 178; emphasis added). The fact that the agency could not cease implementing MPP, as directed by the October 29 Memoranda, until it obtained vacatur of the District Court‘s injunction, did not make the October 29 Memoranda any less the agency‘s final determination of its employees’ obligation to do so once such judicial authorization had been obtained.
The majority concludes that the October 29 Memoranda had legal consequences because they represented DHS‘s “final determination of its employees’ obligation” to terminate MPP, even if that ” ‘determination’ ” could not generate any obligations until the agency “obtained vacatur of the District Court‘s injunction.” Ante, at 20, n. 7 (emphasis deleted). This expansive, formalist approach to the second Bennett factor is at odds with the usual ” ‘pragmatic’ approach we have long taken to finality.” Army Corps of Engineers v. Hawkes Co., 578 U. S. 590, 599 (2016) (quoting Abbott Laboratories v. Gardner, 387 U. S. 136, 149 (1967)). “To determine when an agency action is final, we have looked to, among other things, whether its impact ‘is sufficiently direct and immediate’ and has a ‘direct effect on . . . day-to-day business.’ ” Franklin v. Massachusetts, 505 U. S. 788, 796–797 (1992) (quoting Abbott Laboratories, 387 U. S., at 152). By their own terms, as the majority acknowledges, the October 29 Memoranda had no direct or immediate effect on the day-to-day business of DHS employees. To conclude that such future agency intentions may nevertheless meet the formal definition of final agency action may result in many agencies facing judicial scrutiny over interim rules, guidance documents, letters, and informal opinions that may not bind anyone now or even later.One rationale that we do not address at length is the Court of Appeals’ extended analogy to the D. C. Circuit‘s “reopening doctrine.” Respondents do not defend the Court of Appeals’ reliance on that doctrine. In any event, this Court has never adopted it, and the doctrine appears to be inapposite to the question of final agency action. See National Assn. of Reversionary Property Owners v. Surface Transp. Bd., 158 F. 3d 135, 141 (CADC 1998) (describing the doctrine as an “exception to statutory limits on the time for seeking review of an agency decision” (alterations omitted)).