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The dataset generation failed
Error code: DatasetGenerationError
Exception: TypeError
Message: Couldn't cast array of type
struct<CreationDate: string, Creator: string, ModDate: string, Producer: string, Title: string, Author: string, CaseNumber: string, Chamber: string, Comments: string, Company: string, Disposition: string, OpinionXRef: string, PageBookmarkControl: string, PerCuriamExists: string, Source: string, SourceModified: string, Subject: string, Keywords: string, PerCuriamType: string>
to
{'CreationDate': Value(dtype='string', id=None), 'Creator': Value(dtype='string', id=None), 'ModDate': Value(dtype='string', id=None), 'Producer': Value(dtype='string', id=None), 'Title': Value(dtype='string', id=None), 'CaseNumber': Value(dtype='string', id=None), 'Chamber': Value(dtype='string', id=None), 'Comments': Value(dtype='string', id=None), 'Company': Value(dtype='string', id=None), 'Disposition': Value(dtype='string', id=None), 'Keywords': Value(dtype='string', id=None), 'OpinionXRef': Value(dtype='string', id=None), 'PageBookmarkControl': Value(dtype='string', id=None), 'PerCuriamExists': Value(dtype='string', id=None), 'Source': Value(dtype='string', id=None), 'SourceModified': Value(dtype='string', id=None), 'Subject': Value(dtype='string', id=None), 'Author': Value(dtype='string', id=None), 'SyllabusStatus': Value(dtype='string', id=None)}
Traceback: Traceback (most recent call last):
File "/src/services/worker/.venv/lib/python3.9/site-packages/datasets/builder.py", line 1869, in _prepare_split_single
writer.write_table(table)
File "/src/services/worker/.venv/lib/python3.9/site-packages/datasets/arrow_writer.py", line 580, in write_table
pa_table = table_cast(pa_table, self._schema)
File "/src/services/worker/.venv/lib/python3.9/site-packages/datasets/table.py", line 2292, in table_cast
return cast_table_to_schema(table, schema)
File "/src/services/worker/.venv/lib/python3.9/site-packages/datasets/table.py", line 2245, in cast_table_to_schema
arrays = [
File "/src/services/worker/.venv/lib/python3.9/site-packages/datasets/table.py", line 2246, in <listcomp>
cast_array_to_feature(
File "/src/services/worker/.venv/lib/python3.9/site-packages/datasets/table.py", line 1795, in wrapper
return pa.chunked_array([func(chunk, *args, **kwargs) for chunk in array.chunks])
File "/src/services/worker/.venv/lib/python3.9/site-packages/datasets/table.py", line 1795, in <listcomp>
return pa.chunked_array([func(chunk, *args, **kwargs) for chunk in array.chunks])
File "/src/services/worker/.venv/lib/python3.9/site-packages/datasets/table.py", line 2108, in cast_array_to_feature
raise TypeError(f"Couldn't cast array of type\n{_short_str(array.type)}\nto\n{_short_str(feature)}")
TypeError: Couldn't cast array of type
struct<CreationDate: string, Creator: string, ModDate: string, Producer: string, Title: string, Author: string, CaseNumber: string, Chamber: string, Comments: string, Company: string, Disposition: string, OpinionXRef: string, PageBookmarkControl: string, PerCuriamExists: string, Source: string, SourceModified: string, Subject: string, Keywords: string, PerCuriamType: string>
to
{'CreationDate': Value(dtype='string', id=None), 'Creator': Value(dtype='string', id=None), 'ModDate': Value(dtype='string', id=None), 'Producer': Value(dtype='string', id=None), 'Title': Value(dtype='string', id=None), 'CaseNumber': Value(dtype='string', id=None), 'Chamber': Value(dtype='string', id=None), 'Comments': Value(dtype='string', id=None), 'Company': Value(dtype='string', id=None), 'Disposition': Value(dtype='string', id=None), 'Keywords': Value(dtype='string', id=None), 'OpinionXRef': Value(dtype='string', id=None), 'PageBookmarkControl': Value(dtype='string', id=None), 'PerCuriamExists': Value(dtype='string', id=None), 'Source': Value(dtype='string', id=None), 'SourceModified': Value(dtype='string', id=None), 'Subject': Value(dtype='string', id=None), 'Author': Value(dtype='string', id=None), 'SyllabusStatus': Value(dtype='string', id=None)}
The above exception was the direct cause of the following exception:
Traceback (most recent call last):
File "/src/services/worker/src/worker/job_runners/config/parquet_and_info.py", line 1392, in compute_config_parquet_and_info_response
parquet_operations = convert_to_parquet(builder)
File "/src/services/worker/src/worker/job_runners/config/parquet_and_info.py", line 1041, in convert_to_parquet
builder.download_and_prepare(
File "/src/services/worker/.venv/lib/python3.9/site-packages/datasets/builder.py", line 924, in download_and_prepare
self._download_and_prepare(
File "/src/services/worker/.venv/lib/python3.9/site-packages/datasets/builder.py", line 999, in _download_and_prepare
self._prepare_split(split_generator, **prepare_split_kwargs)
File "/src/services/worker/.venv/lib/python3.9/site-packages/datasets/builder.py", line 1740, in _prepare_split
for job_id, done, content in self._prepare_split_single(
File "/src/services/worker/.venv/lib/python3.9/site-packages/datasets/builder.py", line 1896, in _prepare_split_single
raise DatasetGenerationError("An error occurred while generating the dataset") from e
datasets.exceptions.DatasetGenerationError: An error occurred while generating the datasetNeed help to make the dataset viewer work? Make sure to review how to configure the dataset viewer, and open a discussion for direct support.
pid
string | docid
string | content
string | metadata
dict | error
sequence | page_number
int64 |
|---|---|---|---|---|---|
null | ./input/supremecourt_opinions/opinions/21...-843_7j80.pdf | null | {
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} | [
"Error processing ./input/supremecourt_opinions/opinions/21...-843_7j80.pdf: No /Root object! - Is this really a PDF?"
] | null |
null | ./input/supremecourt_opinions/opinions/19...ifl.pdf | null | {
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] | null |
0 | ./input/supremecourt_opinions/opinions/21pdf/21-954_7l48.pdf | (Slip Opinion)
OCTOBER TERM, 2021
1
Syllabus
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.
SUPREME COURT OF THE UNITED STATES
Syllabus
BIDEN ET AL. v. TEXAS ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FIFTH CIRCUIT
No. 21–954. Argued April 26, 2022—Decided June 30, 2022
In January 2019, the Department of Homeland Security began to imple-
ment 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 imple-
mented pursuant to a provision of the INA that applies to aliens “ar-
riving 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.” 8 U. S. C. §1225(b)(2)(C). Following a change in Presidential
administrations, the Biden administration announced that it would
suspend the program, and on June 1, 2021, the Secretary of Homeland
Security issued a memorandum officially terminating it.
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 Administra-
tive 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 section 1225(b)(2)(A) or contiguous-territory re-
turn pursuant to section 1225(b)(2)(C). 554 F. Supp. 3d 818, 852. Be-
cause the Government was unable to meet its mandatory detention
obligations under section 1225(b)(2)(A) due to resource constraints, the
court reasoned, terminating MPP would necessarily lead to the sys-
temic violation of section 1225 as illegal entrants were released into
the United States. Second, the District Court concluded that the June
1 Memorandum was arbitrary and capricious in violation of the APA. | {
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2 | ./input/supremecourt_opinions/opinions/21pdf/21-954_7l48.pdf | 2
BIDEN v. TEXAS
Syllabus
The District Court vacated the June 1 Memorandum and remanded to
DHS. It also imposed a nationwide injunction ordering the Govern-
ment 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 capac-
ity to detain all aliens subject to mandatory detention under [section
1225] without releasing any aliens because of a lack of detention re-
sources.” Id., at 857 (emphasis in original).
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 Ap-
peals 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 8 U. S. C. §1252(f )(1). See Garland
v. Aleman Gonzalez, 596 U. S. ___, ___. But section 1252(f )(1) does not
deprive this Court of jurisdiction to reach the merits of an appeal even
where a lower court enters a form of relief barred by that provision.
Section 1252(f )(1) withdraws a district court’s “jurisdiction or author-
ity” to grant a particular form of relief. It does not deprive lower courts
of all subject matter jurisdiction over claims brought under sections
1221 through 1232 of the INA.
The text of the provision makes that clear. Section 1252(f )(1) de-
prives 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 adju-
dicate any non-individual claims under sections 1221 through 1232, no
such claims could ever arrive at this Court, rendering the specific
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4 | ./input/supremecourt_opinions/opinions/21pdf/21-954_7l48.pdf | Cite as: 597 U. S. ____ (2022)
3
Syllabus
Statutory structure likewise confirms this conclusion. Elsewhere in
section 1252, where Congress intended to deny subject matter jurisdic-
tion over a particular class of claims, it did so unambiguously. See,
e.g., §1252(a)(2) (entitled “Matters not subject to judicial review”). Fi-
nally, this Court previously encountered a virtually identical situation
in Nielsen v. Preap, 586 U. S. ___, and proceeded to reach the merits of
the suit notwithstanding the District Court’s apparent violation of sec-
tion 1252(f )(1). Pp. 8–13.
(b) Turning to the merits, section 1225(b)(2)(C) provides: “In the case
of an alien . . . who is arriving on land . . . from a foreign territory con-
tiguous to the United States, the [Secretary] may return the alien to
that territory pending a proceeding under section 1229a.” Section
1225(b)(2)(C) plainly confers a discretionary authority to return aliens
to Mexico. This Court has “repeatedly observed” that “the word ‘may’
clearly connotes discretion.” Opati v. Republic of Sudan, 590 U. S. ___,
___.
from
inference
Respondents and the Court of Appeals concede that point, but urge
an
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 man-
datory 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 manda-
tory cure of any noncompliance with the Government’s detention obli-
gations, it would not have conveyed that intention through an unspo-
ken 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 viola-
tion 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” lan-
guage 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 enact-
ment, 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 con-
tiguous-territory return likewise confirm that the Court of Appeals
erred. Interpreting section 1225(b)(2)(C) as a mandate imposes a sig-
nificant burden upon the Executive’s ability to conduct diplomatic re-
lations with Mexico, one that Congress likely did not intend section
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6 | ./input/supremecourt_opinions/opinions/21pdf/21-954_7l48.pdf | 4
BIDEN v. TEXAS
Syllabus
alternative means of processing applicants for admission, see 8
U. S. C. §1182(d)(5)(A), additionally makes clear that the Court of Ap-
peals erred in holding that the INA required the Government to con-
tinue implementing MPP. Pp. 13–18.
(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 consider-
ation, 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 agency’s deci-
sionmaking process” and resulted in “rights and obligations [being] de-
termined.” Bennett v. Spear, 520 U. S. 154, 178.
The various rationales offered by respondents and the Court of Ap-
peals 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 ration-
alization of the June 1 Memorandum. The prohibition on post hoc ra-
tionalization applies only when the agency proceeds by the first option
from Regents. Here, the Secretary chose the second option from Re-
gents 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 mis-
match 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 in-
junction as relevant to the question of the October 29 Memoranda’s
status as final agency action. Nothing prevents an agency from under-
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8 | ./input/supremecourt_opinions/opinions/21pdf/21-954_7l48.pdf | Cite as: 597 U. S. ____ (2022)
5
Syllabus
judgment against its original action. Pp. 18–25.
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 opin-
ion, in which THOMAS, ALITO, and GORSUCH, JJ., joined as to all but the
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9 | ./input/supremecourt_opinions/opinions/21pdf/21-954_7l48.pdf | Cite as: 597 U. S. ____ (2022)
1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 21–954
_________________
JOSEPH R. BIDEN, JR., PRESIDENT OF THE UNITED
STATES, ET AL., PETITIONERS v. TEXAS, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[June 30, 2022]
CHIEF JUSTICE ROBERTS delivered the opinion of the
Court.
In January 2019, the Department of Homeland Secu-
rity—under the administration of President Trump—estab-
lished the Migrant Protection Protocols. That program pro-
vided 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 pro-
gram 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 Im-
migration 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 in-
adequately explained in violation of the Administrative
Procedure Act. While its appeal was pending, the Govern-
ment took new action to terminate the policy with a more
detailed explanation. But the Court of Appeals held that
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10 | ./input/supremecourt_opinions/opinions/21pdf/21-954_7l48.pdf | 2
BIDEN v. TEXAS
Opinion of the Court
action under the Administrative Procedure Act.
The questions presented are whether the Government’s
rescission of the Migrant Protection Protocols violated the
Immigration and Nationality Act and whether the Govern-
ment’s second termination of the policy was a valid final
agency action.
I
A
On December 20, 2018, then-Secretary of Homeland Se-
curity 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 immi-
gration surge at the country’s southern border, and a re-
sulting “humanitarian and border security crisis” in which
federal immigration officials were encountering approxi-
mately 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 be
returned to Mexico to await the results of their removal pro-
ceedings under 8 U. S. C. §1229a. On the same day that
Secretary Nielsen announced the program, the Government
of Mexico agreed that it would cooperate in administering
it, on a temporary basis.
MPP was implemented pursuant to express congres-
sional 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, 8 U. S. C.
§1225(b)(2)(C).1 Prior to the initiation of MPP, the Depart-
ment of Homeland Security (DHS) and its predecessor
——————
1 The provision refers to the Attorney General, but the authority it con-
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12 | ./input/supremecourt_opinions/opinions/21pdf/21-954_7l48.pdf | Cite as: 597 U. S. ____ (2022)
3
Opinion of the Court
agency had “primarily used [§1225(b)(2)(C)] on an ad-hoc
basis to return certain Mexican and Canadian nationals”
arriving at ports of entry. App. to Pet. for Cert. 273a, n. 12.
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.”
§1225(b)(2)(A). Due to consistent and significant funding
shortfalls, however, DHS has never had “sufficient deten-
tion capacity to maintain in custody every single person de-
scribed in section 1225.” Id., at 323a. In light of that fact,
the Trump administration chose to implement MPP in part
so that “[c]ertain aliens attempting to enter the U. S. ille-
gally or without documentation, including those who claim
asylum, will no longer be released into the country, where
they often fail to file an asylum application and/or disap-
pear before an immigration judge can determine the merits
of any claim.” 554 F. Supp. 3d, at 832.
In January 2019, DHS began implementing MPP, ini-
tially 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 di-
rected the new Secretary of Homeland Security, Alejandro
N. Mayorkas, to “promptly review and determine whether
——————
Department of Homeland Security v. Thuraissigiam, 591 U. S. ___, ___,
n. 3 (2020) (slip op., at 4, n. 3). | {
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14 | ./input/supremecourt_opinions/opinions/21pdf/21-954_7l48.pdf | 4
BIDEN v. TEXAS
Opinion of the Court
to terminate or modify the [MPP] program.” 86 Fed. Reg.
8269 (2021).
On June 1, 2021, Secretary Mayorkas issued a memoran-
dum officially terminating MPP (the June 1 Memorandum).
In that memorandum, the Secretary noted his determina-
tion “that MPP [d]oes not adequately or sustainably en-
hance border management in such a way as to justify the
program’s extensive operational burdens and other short-
falls.” 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 re-
scind 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 (re-
spondents) initiated this lawsuit in the Northern District of
Texas against Secretary Mayorkas and others. Respond-
ents’ initial complaint challenged the Acting Secretary’s
January 20 suspension of new enrollments in MPP, but fol-
lowing the June 1 Memorandum, they amended their com-
plaint 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 Administra-
tive Procedure Act (APA), 5 U. S. C. §701 et seq., and sought
preliminary and permanent injunctive relief, declaratory
relief, and vacatur of the rescission pursuant to the APA.
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16 | ./input/supremecourt_opinions/opinions/21pdf/21-954_7l48.pdf | Cite as: 597 U. S. ____ (2022)
5
Opinion of the Court
entered judgment for respondents. The court first con-
cluded that terminating MPP would violate the INA. It rea-
soned that section 1225 of the INA “provides the govern-
ment two options”: mandatory detention pursuant to
section 1225(b)(2)(A) or contiguous-territory return pursu-
ant to section 1225(b)(2)(C). 554 F. Supp. 3d, at 852. Be-
cause the Government was unable to meet its detention ob-
ligations under section 1225(b)(2)(A) due to resource
constraints, the court concluded, “terminating MPP neces-
sarily leads to the systemic violation of Section 1225 as al-
iens are released into the United States.” Ibid. Second, the
District Court found that the agency failed to engage in rea-
soned decisionmaking and therefore acted arbitrarily and
capriciously in violation of the APA. Id., at 847–851.
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 in-
junction ordering the Government to “enforce and imple-
ment 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 deten-
tion capacity to detain all aliens subject to mandatory de-
tention 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 in-
junction, 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 arbi-
trary and capricious.” 594 U. S. ___ (2021). The Court did
not address the District Court’s interpretation of the INA.
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18 | ./input/supremecourt_opinions/opinions/21pdf/21-954_7l48.pdf | 6
BIDEN v. TEXAS
Opinion of the Court
While the Government’s appeal was pending, however, Sec-
retary Mayorkas “considered anew whether to maintain,
terminate, or modify MPP in various ways.” App. to Pet.
for Cert. 286a. On September 29, 2021, the Secretary pub-
licly announced his “inten[tion] to issue in the coming
weeks a new memorandum terminating [MPP].” 20 F. 4th
928, 954 (CA5 2021). The Government then moved to hold
the appeal in abeyance pending the Secretary’s formal de-
cision, but the Court of Appeals denied the motion.
On October 29, the Secretary released a four-page mem-
orandum 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 ex-
plained, this new assessment of MPP “examined considera-
tions 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 strong-
est argument in favor of retaining MPP: namely, the signif-
icant decrease in border encounters following the determi-
nation 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 initia-
tives that better align with this Administration’s values.”
Ibid. Finally, the Secretary once again noted that “[e]fforts
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20 | ./input/supremecourt_opinions/opinions/21pdf/21-954_7l48.pdf | Cite as: 597 U. S. ____ (2022)
7
Opinion of the Court
in diplomatic engagements with Mexico, diverting atten-
tion from more productive efforts to fight transnational
criminal and smuggling networks and address the root
causes of migration.” Id., at 262a.
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 “im-
plemented as soon as practicable after a final judicial deci-
sion to vacate” that injunction. Ibid. The Government then
moved to vacate the injunction on the ground that the Oc-
tober 29 Memoranda had superseded the June 1 Memoran-
dum, 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 anal-
ysis of the relevant provisions. That is, the court explained,
section 1225(b)(2)(A) “sets forth a general, plainly obliga-
tory rule: detention for aliens seeking admission,” while
section 1225(b)(2)(C) “authorizes contiguous-territory re-
turn as an alternative.” 20 F. 4th, at 996. Accordingly, the
Court of Appeals reasoned, “DHS is violating (A)’s mandate,
refusing to avail itself of (C)’s authorized alternative, and
then complaining that it doesn’t like its options.” Ibid.,
n. 18.
The Court of Appeals also held that “[t]he October 29
Memoranda did not constitute a new and separately re-
viewable ‘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
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22 | ./input/supremecourt_opinions/opinions/21pdf/21-954_7l48.pdf | 8
BIDEN v. TEXAS
Opinion of the Court
to put the Termination Decision back on the chopping block
and rethink things,” and for ultimately “just further de-
fend[ing] what it had previously decided.” Id., at 955. And
the Court of Appeals drew a dichotomy between taking new
agency action and appealing an adverse decision, asserting
that “DHS chose not to take a new agency action” but “in-
stead chose to notice an appeal and defend its Termination
Decision in our court.” Id., at 941.
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 8 U. S. C. §1252(f )(1). That provision reads as follows:
“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 juris-
diction 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 of-
ficials 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 en-
tered a form of relief barred by that provision. See Steel Co.
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24 | ./input/supremecourt_opinions/opinions/21pdf/21-954_7l48.pdf | Cite as: 597 U. S. ____ (2022)
9
Opinion of the Court
(“Every federal appellate court has an obligation to satisfy
itself not only of its own jurisdiction, but also that of the
lower courts in a cause under review, even though the par-
ties are prepared to concede it.” (internal quotation marks
and alterations omitted)).
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 28 U. S. C. §1331 (“The district courts
shall have original jurisdiction of all civil actions arising
under the Constitution, laws, or treaties of the United
States.”). The question, then, is whether section 1252(f )(1)
strips the lower courts of subject matter jurisdiction over
these claims. The parties agree that the answer to that
question is no, and so do we. That is because section
1252(f )(1) withdraws a district court’s “jurisdiction or au-
thority” to grant a particular form of relief. It does not de-
prive the lower courts of all subject matter jurisdiction over
claims brought under sections 1221 through 1232 of the
INA.
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 op-
eration of ” the relevant sections of the statute. A limitation
on subject matter jurisdiction, by contrast, restricts a
court’s “power to adjudicate a case.” United States v. Cot-
ton, 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 Con-
gress instead provided that lower courts would lack juris-
diction 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
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26 | ./input/supremecourt_opinions/opinions/21pdf/21-954_7l48.pdf | 10
BIDEN v. TEXAS
Opinion of the Court
A second feature of the text of section 1252(f )(1) leaves
no doubt that this Court has jurisdiction: the parenthetical
explicitly preserving this Court’s power to enter injunctive
relief. See §1252(f )(1) (“[N]o court (other than the Supreme
Court) shall have jurisdiction or authority . . .”). If section
1252(f )(1) deprived lower courts of subject matter jurisdic-
tion to adjudicate any non-individual claims under sections
1221 through 1232, no such claims could ever arrive at this
Court, rendering the provision’s specific carveout for Su-
preme Court injunctive relief nugatory. Indeed, that carve-
out seems directed at precisely the question before us here:
whether section 1252(f )(1)’s “[l]imit on injunctive relief ”
has any consequence for the jurisdiction of this Court. Con-
gress took pains to answer that question in the negative.
Interpreting section 1252(f )(1) to deprive this Court of ju-
risdiction under these circumstances would therefore fail to
“give effect, if possible, to every clause and word of [the]
statute.” Williams v. Taylor, 529 U. S. 362, 404 (2000).2
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. Section 1252(a)(2), for instance, is enti-
tled “Matters not subject to judicial review” and provides
that “no court shall have jurisdiction to review” several cat-
egories of decisions, such as “any final order of removal
against an alien who is removable by reason of having com-
mitted a criminal offense. . . .” (Emphasis added.) Con-
gress could easily have added one more item to this list: any
——————
2 JUSTICE BARRETT raises a host of additional questions regarding the
“Supreme Court” parenthetical, post, at 4–5 (dissenting opinion), and she
faults us for relying on this aspect of the provision without comprehen-
sively “explain[ing] how it would work,” post, at 5. But we see no need
to explore every aspect or consequence of the parenthetical in order to
answer the narrow question of our jurisdiction over this case. In declin-
ing to resolve these additional complexities, we merely heed JUSTICE
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28 | ./input/supremecourt_opinions/opinions/21pdf/21-954_7l48.pdf | Cite as: 597 U. S. ____ (2022)
11
Opinion of the Court
action taken pursuant to sections 1221 through 1232. Or it
could have worded section 1252(f )(1) similarly to the imme-
diately adjacent section 1252(g), which provides that “no
court shall have jurisdiction to hear any cause or claim by
or on behalf of any alien arising from the decision or action
by the Attorney General to commence proceedings, adjudi-
cate cases, or execute removal orders against [the alien].”
(Emphasis added.) But Congress did neither. Instead, it
constructed a carefully worded provision depriving the
lower courts of power to “enjoin or restrain the operation
of ” certain sections of the statute, and it entitled that pro-
vision a “[l]imit on injunctive relief.”
Our prior cases have already embraced this straightfor-
ward conclusion. Most relevantly, the Court previously en-
countered 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 lat-
ter. 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 [Dis-
trict] [C]ourt had jurisdiction to enter such an injunction is
irrelevant because the District Court had jurisdiction to en-
tertain 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. Ro-
driguez, 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 ” not-
withstanding 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
——————
3 JUSTICE BARRETT notes that Preap involved consolidated cases, and
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30 | ./input/supremecourt_opinions/opinions/21pdf/21-954_7l48.pdf | 12
BIDEN v. TEXAS
Opinion of the Court
Court regarding section 1252(f )(1) are in accord. See Reno
v. American-Arab Anti-Discrimination Comm., 525 U. S.
471, 481 (1999) (“By its plain terms, and even by its title,
[section 1252(f )(1)] is nothing more or less than a limit on
injunctive relief.”).
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 au-
thority,” 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 particular 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. Section 1225(b)(2)(C) pro-
vides: “In the case of an alien . . . who is arriving on land
. . . from a foreign territory contiguous to the United States,
——————
as injunctive relief. Post, at 5, n. (dissenting opinion). That misses the
point. The Preap District Court granted only injunctive relief, present-
ing the exact circumstances we confront here, yet this Court exercised
jurisdiction over that lawsuit and resolved it on the merits.
4 At our request, the parties briefed several additional questions re-
garding the operation of section 1252(f )(1), namely, whether its limita-
tion on “jurisdiction or authority” is subject to forfeiture and whether
that limitation extends to other specific remedies, such as declaratory
relief and relief under section 706 of the APA. We express no view on
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32 | ./input/supremecourt_opinions/opinions/21pdf/21-954_7l48.pdf | Cite as: 597 U. S. ____ (2022)
13
Opinion of the Court
the [Secretary] may return the alien to that territory pend-
ing a proceeding under section 1229a.” Section 1225(b)(2)(C)
plainly confers a discretionary authority to return aliens to
Mexico during the pendency of their immigration proceed-
ings. This Court has “repeatedly observed” that “the word
‘may’ clearly connotes discretion.” Opati v. Republic of Su-
dan, 590 U. S. ___, ___ (2020) (slip op., at 10) (emphasis in
original); see also, e.g., Weyerhaeuser Co. v. United States
Fish and Wildlife Serv., 586 U. S. ___, ___ (2018) (slip op.,
at 14); Jama v. Immigration and Customs Enforcement, 543
U. S. 335, 346 (2005). The use of the word “may” in section
1225(b)(2)(C) thus makes clear that contiguous-territory re-
turn is a tool that the Secretary “has the authority, but not
the duty,” to use. Lopez v. Davis, 531 U. S. 230, 241 (2001).
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 ob-
viously true that §1225(b)(2)(C) is discretionary.”). They
base their interpretation instead on section 1225(b)(2)(A),
which provides that, “in the case of an alien who is an ap-
plicant for admission, if the examining immigration officer
determines that 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 ti-
tle.” Respondents and the Court of Appeals thus urge an
inference from the statutory structure: Because section
1225(b)(2)(A) makes detention mandatory, they argue, the
otherwise-discretionary
in section
1225(b)(2)(C) becomes mandatory when the Secretary vio-
lates that detention mandate.
return authority
The problem is that the statute does not say anything like
that. The statute says “may.” And “may” does not just sug-
gest 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 | {
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34 | ./input/supremecourt_opinions/opinions/21pdf/21-954_7l48.pdf | 14
BIDEN v. TEXAS
Opinion of the Court
‘shall.’ ”). Congress’s use of the word “may” is therefore in-
consistent with respondents’ proposed inference from the
statutory structure. If Congress had intended section
1225(b)(2)(C) to operate as a mandatory cure of any non-
compliance with the Government’s detention obligations, it
would not have conveyed that intention through an unspo-
ken inference in conflict with the unambiguous, express
term “may.” It would surely instead have coupled that
grant of discretion with some indication of its sometimes-
mandatory nature—perhaps by providing that the Secre-
tary “may return” certain aliens to Mexico, “unless the gov-
ernment fails to comply with its detention obligations, in
which case the Secretary must return them.” The statutory
grant of discretion here contains no such caveat, and we will
not rewrite it to include one. See id., at 341 (“We do not
lightly assume that Congress has omitted from its adopted
text requirements that it nonetheless intends to apply.”).
that
emphasizes
The principal dissent
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 8 U. S. C. §1225(b)(2)(A) is unequivocal.”).
While the Government contests that proposition, we as-
sume arguendo for purposes of this opinion that the dis-
sent’s interpretation of section 1225(b)(2)(A) is correct, and
that the Government is currently violating its obligations
under that provision.5 Even so, the dissent’s conclusions
regarding section 1225(b)(2)(C) do not follow. Under the ac-
tual text of the statute, JUSTICE ALITO’s interpretation is
practically self-refuting. He emphasizes that “ ‘[s]hall be
——————
5 For this reason, JUSTICE ALITO misunderstands our analysis in insist-
ing that our opinion authorizes the Government to release aliens subject
to detention under section 1225(b)(2)(A). See post, at 8 (dissenting opin-
ion). We need not and do not decide whether the detention requirement
in section 1225(b)(2)(A) is subject to principles of law enforcement discre-
tion, as the Government argues, or whether the Government’s current
practices simply violate that provision. | {
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36 | ./input/supremecourt_opinions/opinions/21pdf/21-954_7l48.pdf | Cite as: 597 U. S. ____ (2022)
15
Opinion of the Court
detained’ means ‘shall be detained,’ ” post, at 9, and criti-
cizes the Government’s “argument that ‘shall’ means
‘may,’ ” post, at 10. But the theory works both ways. Con-
gress conferred contiguous-territory return authority in ex-
pressly discretionary terms.
“ ‘[M]ay return the alien’
means ‘may return the alien.’ ” The desire to redress the
Government’s purported violation of section 1225(b)(2)(A)
does not justify transforming the nature of the authority
conferred by section 1225(b)(2)(C).6
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] struc-
ture and history”). Section 1225(b)(2)(C) was not added to
the statute until 1996, in the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996 (IIRIRA), §302,
110 Stat. 300–583—more than 90 years after the Immigra-
tion 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 Im-
migration 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
——————
6 In arguing that the Court should do so, the dissent proposes a number
of hypotheticals in which a party fails to comply with a legal obligation
imposed by statute and additionally refuses to exercise a discretionary
alternative authorized by that statute. Post, at 12–13 (ALITO, J., dissent-
ing). We wholeheartedly endorse the conclusion that the dissent draws
from these hypotheticals: that “the failure to make use of the discretion-
ary option would not be seen as a valid excuse for non-compliance with
the command that certain conduct ‘shall’ be performed.” Post, at 13. But
the question before us is not whether the Government is violating the
immigration laws generally. The question is whether the INA requires
the government to continue implementing MPP. And the statutory text
clearly answers that question in the negative. | {
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38 | ./input/supremecourt_opinions/opinions/21pdf/21-954_7l48.pdf | 16
BIDEN v. TEXAS
Opinion of the Court
entry to await their exclusion proceedings in Canada or
Mexico. The BIA noted the lack of “any evidence that this
is a practice known to Congress” and “the absence of a sup-
porting regulation.” In re Sanchez-Avila, 21 I. & N. Dec.
444, 465 (1996) (en banc). Congress responded mere
months later by adding section 1225(b)(2)(C) to IIRIRA and
conferring on the Secretary express authority (“may”) to en-
gage in the very practice that the BIA had questioned. And
INS acknowledged that clarification shortly thereafter, ex-
plaining that section 1225(b)(2)(C) and its implementing
regulation “simply add[ ] to the statute and regulation a
long-standing practice of the Service.” 62 Fed. Reg. 445
(1997). That modest backstory suggests a more humble role
for section 1225(b)(2)(C) than as a mandatory “safety valve”
for any alien who
is not detained under section
1225(b)(2)(A).
has
administration
In addition to contradicting the statutory text and con-
text, the novelty of respondents’ interpretation bears men-
tion. Since IIRIRA’s enactment 26 years ago, every Presi-
dential
section
1225(b)(2)(C) as purely discretionary. Indeed, at the time
of IIRIRA’s enactment and in the decades since, congres-
sional funding has consistently fallen well short of the
amount needed to detain all land-arriving inadmissible al-
iens at the border, yet no administration has ever used sec-
tion 1225(b)(2)(C) to return all such aliens that it could not
otherwise detain.
interpreted
And the foreign affairs consequences of mandating the
exercise of contiguous-territory return likewise confirm
that the Court of Appeals erred. Article II of the Constitu-
tion authorizes the Executive to “engag[e] in direct diplo-
macy with foreign heads of state and their ministers.” Zi-
votofsky v. Kerry, 576 U. S. 1, 14 (2015). Accordingly, the
Court has taken care to avoid “the danger of unwarranted
judicial interference in the conduct of foreign policy,” and | {
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40 | ./input/supremecourt_opinions/opinions/21pdf/21-954_7l48.pdf | Cite as: 597 U. S. ____ (2022)
17
Opinion of the Court
declined to “run interference in [the] delicate field of inter-
national relations” without “the affirmative intention of the
Congress clearly expressed.” Kiobel v. Royal Dutch Petro-
leum Co., 569 U. S. 108, 115–116 (2013). That is no less
true in the context of immigration law, where “[t]he dy-
namic nature of relations with other countries requires the
Executive Branch to ensure that enforcement policies are
consistent with this Nation’s foreign policy.” Arizona v.
United States, 567 U. S. 387, 397 (2012).
By interpreting section 1225(b)(2)(C) as a mandate, the
Court of Appeals imposed a significant burden upon the Ex-
ecutive’s ability to conduct diplomatic relations with Mex-
ico. MPP applies exclusively to non-Mexican nationals who
have arrived at ports of entry that are located “in the
United States.” §1225(a)(1). The Executive therefore can-
not unilaterally return these migrants to Mexico. In at-
tempting to rescind MPP, the Secretary emphasized that
“[e]fforts to implement MPP have played a particularly out-
sized role in diplomatic engagements with Mexico, divert-
ing attention from more productive efforts to fight transna-
tional criminal and smuggling networks and address the
root causes of migration.” App. to Pet. for Cert. 262a. Yet
under the Court of Appeals’
interpretation, section
1225(b)(2)(C) authorized the District Court to force the Ex-
ecutive to the bargaining table with Mexico, over a policy
that both countries wish to terminate, and to supervise its
continuing negotiations with Mexico to ensure that they are
conducted “in good faith.” 554 F. Supp. 3d, at 857 (empha-
sis deleted). That stark consequence confirms our conclu-
sion that Congress did not intend section 1225(b)(2)(C) to
tie the hands of the Executive in this manner.
Finally, we note that—as DHS explained in its October
29 Memoranda—the INA expressly authorizes DHS to pro-
cess applicants for admission under a third option: parole.
See 8 U. S. C. §1182(d)(5)(A). Every administration, includ-
ing the Trump and Biden administrations, has utilized this | {
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42 | ./input/supremecourt_opinions/opinions/21pdf/21-954_7l48.pdf | 18
BIDEN v. TEXAS
Opinion of the Court
authority to some extent. Importantly, the authority is not
unbounded: DHS may exercise its discretion to parole ap-
plicants “only on a case-by-case basis for urgent humanitar-
ian reasons or significant public benefit.” Ibid. And under
the APA, DHS’s exercise of discretion within that statutory
framework must be reasonable and reasonably explained.
See Motor Vehicle Mfrs. Assn. of United States, Inc. v. State
Farm Mut. Automobile Ins. Co., 463 U. S. 29 (1983). But
the availability of the parole option additionally makes
clear that the Court of Appeals erred in holding that the
INA required the Government to continue implementing
MPP.
In sum, the contiguous-territory return authority in sec-
tion 1225(b)(2)(C) is discretionary—and remains discretion-
ary notwithstanding any violation of section 1225(b)(2)(A).
To reiterate: we need not and do not resolve the parties’ ar-
guments regarding whether section 1225(b)(2)(A) must be
read in light of traditional principles of law enforcement
discretion, and whether the Government is lawfully exer-
cising its parole authorities pursuant to sections 1182(d)(5)
and 1226(a). We merely hold that section 1225(b)(2)(C)
means what it says: “may” means “may,” and the INA itself
does not require the Secretary to continue exercising his
discretionary authority under these circumstances.
IV
The Court of Appeals also erred in holding that “[t]he Oc-
tober 29 Memoranda did not constitute a new and sepa-
rately 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 | {
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44 | ./input/supremecourt_opinions/opinions/21pdf/21-954_7l48.pdf | Cite as: 597 U. S. ____ (2022)
19
Opinion of the Court
matter] to DHS for further consideration.” 554 F. Supp. 3d,
at 857.
As we explained two Terms ago in Department of Home-
land 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 ini-
tial 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 ac-
tion.” 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 determina-
tion 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. Ef-
fective 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 Memo-
randa 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
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46 | ./input/supremecourt_opinions/opinions/21pdf/21-954_7l48.pdf | 20
BIDEN v. TEXAS
Opinion of the Court
was final agency action. That is, both the June 1 Memoran-
dum and the October 29 Memoranda, when they were is-
sued, “mark[ed] the ‘consummation’ of the agency’s deci-
sionmaking process” and resulted in “rights and obligations
[being] determined.” Bennett, 520 U. S., at 178. As the
Court of Appeals explained, the June 1 Memorandum
“bound DHS staff by forbidding them to continue the pro-
gram in any way from that moment on.” 20 F. 4th, at 947.
That rationale also applies to the October 29 Memoranda,
which were therefore final agency action under the APA.7
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 ap-
plicability . . . designed to implement” that decision. 5
——————
7 JUSTICE ALITO contends that the October 29 Memoranda were not fi-
nal agency action because they did not obligate DHS employees to imme-
diately cease implementing MPP; instead, they required them to do so
“as soon as practicable after a final judicial decision to vacate” the Dis-
trict Court’s injunction. App. to Pet. for Cert. 264a. But as he acknowl-
edges, the standard for final agency action is whether the action “re-
sult[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 de-
termination of its employees’ obligation to do so once such judicial au-
thorization had been obtained.
8 One rationale that we do not address at length is the Court of Ap-
peals’ extended analogy to the D. C. Circuit’s “reopening doctrine.” Re-
spondents 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
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48 | ./input/supremecourt_opinions/opinions/21pdf/21-954_7l48.pdf | Cite as: 597 U. S. ____ (2022)
21
Opinion of the Court
U. S. C. §551(4); see 20 F. 4th, at 950–951 (“The States are
challenging the Termination Decision—not the June 1
Memorandum, the October 29 Memoranda, or any other
memo.”). To the extent that the Court of Appeals under-
stood itself to be reviewing an abstract decision apart from
specific agency action, as defined in the APA, that was er-
ror. It was not the case that the June 1 Memorandum and
the October 29 Memoranda “simply explained DHS’s deci-
sion,” while only the decision itself “had legal effect.” Id.,
at 951. To the contrary, the June 1 Memorandum and the
October 29 Memoranda were themselves the operative
agency actions, each of them an “agency statement . . . de-
signed to implement, interpret, or prescribe law or policy.”
5 U. S. C. §551(4).
Second, and relatedly, respondents characterized the Oc-
tober 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 Deci-
sion”). But Regents involved the exact opposite situation
from this one. There, as here, DHS had attempted to re-
scind a prior administration’s immigration policy, but a Dis-
trict 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] Memo-
randum while elaborating on [her] prior reasoning,” rather
than “issue a new rescission bolstered by new reasons ab-
sent 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 ___–___ | {
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50 | ./input/supremecourt_opinions/opinions/21pdf/21-954_7l48.pdf | 22
BIDEN v. TEXAS
Opinion of the Court
(slip op., at 14–15). And because the then-Secretary’s rea-
soning had “little relationship to that of her predecessor,”
the Court characterized the new explanations as “imper-
missible post hoc rationalizations . . . not properly before
us.” Id., at ___ (slip op., at 15).
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 supple-
mental 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 ac-
tion.” 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 Memo-
randa was for the Secretary to “issue a new rescission bol-
stered by new reasons absent from the [June 1] Memoran-
dum,” 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, there-
fore, 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 pre-
sumption 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 | {
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52 | ./input/supremecourt_opinions/opinions/21pdf/21-954_7l48.pdf | Cite as: 597 U. S. ____ (2022)
23
Opinion of the Court
evaluating the agency’s contemporaneous explanation in
light of the existing administrative record.” Department of
Commerce, 588 U. S., at ___ (slip op., at 23). Department of
Commerce involved a “narrow exception to th[at] general
rule” that applies where the challengers to the agency’s ac-
tion make a “strong showing of bad faith or improper be-
havior” on the part of the agency. Id., at ___ (slip op., at 24)
(quoting Citizens to Preserve Overton Park, Inc. v. Volpe,
401 U. S. 402, 420 (1971)). We held that exception satisfied
by an accumulation of “unusual circumstances” that
demonstrated an “explanation for agency action that [was]
incongruent with what the record reveal[ed] about the
agency’s priorities and decisionmaking process.” Depart-
ment of Commerce, 588 U. S., at ___ (slip op., at 28).
The circumstances in this case do not come close to those
in Department of Commerce. Nothing in this record sug-
gests a “significant mismatch between the decision the Sec-
retary made and the rationale he provided.” Id., at ___ (slip
op., at 26). Respondents direct us instead to the Govern-
ment’s litigation conduct. But the examples of misconduct
to which respondents refer—such as a failure to timely com-
plete the administrative record, Brief for Respondents 42—
have no bearing on the legal status of the October 29 Mem-
oranda. 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 administra-
tive 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 suffi-
ciently open mind. See, e.g., 20 F. 4th, at 955 (agency pro-
ceeded “without a hint of an intention to put the Termina-
tion Decision back on the chopping block and rethink | {
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54 | ./input/supremecourt_opinions/opinions/21pdf/21-954_7l48.pdf | 24
BIDEN v. TEXAS
Opinion of the Court
things”). But the agency’s ex ante preference for terminat-
ing MPP—like any other feature of an administration’s pol-
icy agenda—should not be held against the October 29
Memoranda. “It is hardly improper for an agency head to
come into office with policy preferences and ideas . . . and
work with staff attorneys to substantiate the legal basis for
a preferred policy.” Department of Commerce, 588 U. S., at
___ (slip op., at 26); see also State Farm, 463 U. S., at 59
(Rehnquist, J., concurring in part and dissenting in part)
(“As long as [an] agency remains within the bounds estab-
lished by Congress, it is entitled to assess administrative
records and evaluate priorities in light of the philosophy of
the administration.” (footnote omitted)).
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 crit-
icisms of agency closemindedness based on an identity be-
tween 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 eval-
uate the [agency’s] final rules under [an] open-mindedness
test” where interim and final rules were “virtually identi-
cal” 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- | {
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56 | ./input/supremecourt_opinions/opinions/21pdf/21-954_7l48.pdf | Cite as: 597 U. S. ____ (2022)
25
Opinion of the Court
tion on remand is entitled to “reexamine[] the problem, re-
cast its rationale and reach[ ] the same result.” Chenery II,
332 U. S., at 196; see also Regents, 591 U. S., at ___
(KAVANAUGH, J., concurring in judgment in part and dis-
senting in part) (slip op., at 4) (“Courts often consider an
agency’s . . . additional explanations made . . . on remand
from a court, even if the agency’s bottom-line decision itself
does not change.”).
Finally, the Court of Appeals erred to the extent it viewed
the Government’s decision to appeal the District Court’s in-
junction as relevant to the question of the October 29 Mem-
oranda’s status as final agency action. Nothing prevents an
agency from undertaking new agency action while simulta-
neously 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 in-
junction, 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 Govern-
ment 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 ameliorate those concerns
in the meantime.
*
*
*
For the reasons explained, the Government’s rescission of
MPP did not violate section 1225 of the INA, and the Octo-
ber 29 Memoranda did constitute final agency action. We
therefore reverse the judgment of the Court of Appeals and
remand the case for further proceedings consistent with
this opinion. On remand, the District Court should consider
in the first instance whether the October 29 Memoranda
comply with section 706 of the APA. See State Farm, 463
U. S., at 46–57.
It is so ordered. | {
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58 | ./input/supremecourt_opinions/opinions/21pdf/21-954_7l48.pdf | Cite as: 597 U. S. ____ (2022)
1
KAVANAUGH, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 21–954
_________________
JOSEPH R. BIDEN, JR., PRESIDENT OF THE UNITED
STATES, ET AL., PETITIONERS v. TEXAS, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[June 30, 2022]
JUSTICE KAVANAUGH, concurring.
I agree with the Court that the District Court had juris-
diction 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 conclu-
sion. See post, at 1 (BARRETT, J., dissenting).
I write separately to briefly elaborate on my understand-
ing 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 suffi-
cient capacity to detain noncitizens at the southern border
pending their immigration proceedings (often asylum pro-
ceedings), 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 bene-
fit.” 8 U. S. C. §1182(d)(5)(A). Parole entails releasing in-
dividuals on a case-by-case basis into the United States
subject to “reasonable assurances” that they “will appear at
all hearings.” 8 CFR §212.5(d) (2020); see 8 U. S. C.
§1182(d)(5)(A). Notably, every Administration beginning in
the late 1990s has relied heavily on the parole option, in-
cluding the administrations of Presidents Clinton, Bush,
Obama, Trump, and Biden. See Tr. of Oral Arg. 4, 49–54. | {
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59 | ./input/supremecourt_opinions/opinions/21pdf/21-954_7l48.pdf | 2
BIDEN v. TEXAS
KAVANAUGH, J., concurring
Option two: DHS may choose to return noncitizens to
Mexico. 8 U. S. C. §1225(b)(2)(C). Consistent with that
statutory authority, the prior Administration chose to re-
turn a relatively small group of noncitizens to Mexico.
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 option, and President
Trump also employed the return-to-Mexico option for a rel-
atively small group of noncitizens. Because the immigra-
tion statutes afford substantial discretion to the Executive,
different Presidents may exercise that discretion differ-
ently. That is Administrative Law 101. See Motor Vehicle
Mfrs. Assn. of United States, Inc. v. State Farm Mut. Auto-
mobile Ins. Co., 463 U. S. 29, 59 (1983) (Rehnquist, J., con-
curring 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 reasona-
bly 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 Sta-
tions, Inc., 556 U. S. 502, 514−515 (2009); 5 U. S. C. §706.
For example, when there is insufficient detention capacity
and DHS chooses to parole noncitizens into the United
States rather than returning them to Mexico, DHS must
reasonably explain why parole provides a “significant pub-
lic benefit.” 8 U. S. C. §1182(d)(5)(A); see, e.g., State Farm,
463 U. S., at 46–57. Review under that State Farm stand-
ard is deferential but not toothless. Id., at 56.
The question of whether DHS’s October 29 decision satis-
fies 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. | {
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61 | ./input/supremecourt_opinions/opinions/21pdf/21-954_7l48.pdf | Cite as: 597 U. S. ____ (2022)
3
KAVANAUGH, J., concurring
To be clear, when there is insufficient detention capacity
and the President chooses the parole option because he de-
termines that returning noncitizens to Mexico is not feasi-
ble for foreign-policy reasons, a court applying State Farm
must be deferential to the President’s Article II foreign-pol-
icy judgment. Cf., e.g., Trump v. Hawaii, 585 U. S. ___, ___–
___ (2018) (slip op., at 10–15). Nothing in the relevant im-
migration statutes at issue here suggests that Congress
wanted the Federal Judiciary to improperly second-guess
the President’s Article II judgment with respect to Ameri-
can foreign policy and foreign relations. See Youngstown
Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 635−637 (1952)
(Jackson, J., concurring); see also Dames & Moore v. Regan,
453 U. S. 654, 678–679, 686–688 (1981).
One final note: The larger policy story behind this case
is the multi-decade inability of the political branches to pro-
vide 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 opin-
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62 | ./input/supremecourt_opinions/opinions/21pdf/21-954_7l48.pdf | Cite as: 597 U. S. ____ (2022)
1
ALITO, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 21–954
_________________
JOSEPH R. BIDEN, JR., PRESIDENT OF THE UNITED
STATES, ET AL., PETITIONERS v. TEXAS, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[June 30, 2022]
JUSTICE ALITO, with whom JUSTICE THOMAS and
JUSTICE GORSUCH join, dissenting.
In fiscal year 2021, the Border Patrol reported more than
1.7 million encounters with aliens along the Mexican bor-
der.1 When it appears that one of these aliens is not admis-
sible, 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?
for a
[removal] proceeding.”
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
8 U. S. C.
§1225(b)(2)(A) (emphasis added). And if an alien asserts a
credible fear of persecution, he or she “shall be detained for
further consideration of the application for asylum,”
§1225(b)(1)(B)(ii) (emphasis added). Those requirements,
as we have held, are mandatory. See Jennings v. Rodri-
guez, 583 U. S. ___, ___ (2018) (slip op., at 13).
Congress offered the Executive two—and only two—al-
ternatives to detention. First, if an alien is “arriving on
land” from “a foreign territory contiguous to the United
——————
1 U. S. Customs and Border Protection, Southwest Land Border En-
counters, FY Southwest Land Border Encounters by Month (chart) (May
3, 2022), https://www.cbp.gov/newsroom/stats/southwest-land-border-
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64 | ./input/supremecourt_opinions/opinions/21pdf/21-954_7l48.pdf | 2
BIDEN v. TEXAS
ALITO, J., dissenting
States,” the Department of Homeland Security (DHS) “may
return the alien to that territory pending a [removal] pro-
ceeding.” §1225(b)(2)(C). Second, DHS may release indi-
vidual aliens on “parole,” but “only on a case-by-case basis
for urgent humanitarian reasons or a significant public
benefit.” §1182(d)(5)(A).
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 alter-
native 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 re-
lease 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 ques-
tions on which—due to the Government’s litigation tac-
tics—we have received only hurried briefing and no argu-
ment. 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 cri-
sis.’ ” 554 F. Supp. 3d 818, 831 (ND Tex. 2021). Because | {
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66 | ./input/supremecourt_opinions/opinions/21pdf/21-954_7l48.pdf | Cite as: 597 U. S. ____ (2022)
3
ALITO, J., dissenting
existing detention facilities could not house all the people
who were attempting to enter unlawfully, many “illegal al-
iens with meritless asylum claims were being released into
the United States,” and many, once released, simply “ ‘dis-
appeared.’ ” Ibid. (emphasis deleted). To address this prob-
lem, DHS promulgated the Migrant Protection Protocols
(MPP) in December of that year. See id., at 832. The MPP
program relied on Congress’s express grant of authority to
“return” ”alien[s] . . . arriving on land . . . from a foreign ter-
ritory contiguous to the United States” “to that territory
pending a proceeding” to remove them to their countries of
origin. §1225(b)(2)(C).2 MPP provided that certain non-
Mexican nationals arriving at the United States border by
land from Mexico would be returned to Mexico to await the
results of their removal proceedings. The Mexican Govern-
ment agreed to cooperate and to accept aliens while they
awaited removal.
While the policy was in effect, DHS issued a memoran-
dum in which it determined that MPP was “an indispensa-
ble tool in addressing the ongoing crisis at the southern bor-
der.” 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 de-
terred others from attempting to cross the border unlaw-
fully in the first place. 554 F. Supp. 3d, at 833. DHS found
that total border encounters decreased by 64 percent after
MPP was implemented. App. 189. With MPP in place, al-
iens 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
——————
2 That policy was almost immediately enjoined by a Federal District
Court. Innovation Law Lab v. Nielsen, 366 F. Supp. 3d 1110 (ND Cal.
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68 | ./input/supremecourt_opinions/opinions/21pdf/21-954_7l48.pdf | 4
BIDEN v. TEXAS
ALITO, J., dissenting
months,” rather than leaving asylum applicants “in limbo
for years.” Id., at 190.
Hours after his inauguration on January 20, 2021, Pres-
ident 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 sus-
pended, 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 vi-
olated the Immigration and Nationality Act (INA). The Dis-
trict Court ordered the Government to file the administra-
tive record for the January suspension, and on May 31,
2021, the Government filed a three-line suspension memo-
randum as the entire administrative record. See id., at 856,
n. 16. The next day, in a 7-page memo issued by the Secre-
tary, 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 Federal Rule of Civil Procedure
65(a)(2), the District Court vacated the Government’s deci-
sion to rescind MPP and enjoined the Secretary to continue
to implement that policy “in good faith” until all the aliens
in question could be detained or lawfully paroled. Id., at
857. The Government sought a stay of this order, but the
United States Court of Appeals for the Fifth Circuit, while
expediting the Government’s appeal, refused to issue a
stay. 10 F. 4th 538, 543–561 (2021) (per curiam). The Gov-
ernment then sought a stay in this Court, but we denied
that application. 594 U. S. ___ (2021).
On September 29, 2021, while briefing in the Court of Ap-
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70 | ./input/supremecourt_opinions/opinions/21pdf/21-954_7l48.pdf | Cite as: 597 U. S. ____ (2022)
5
ALITO, J., dissenting
issue a new memorandum terminating MPP, and the Gov-
ernment asked the Court of Appeals to hold its appeal in
abeyance pending this promised administrative action.
App. 51–52. The Court of Appeals denied that motion, id.,
at 54, and then, two business days before oral argument,
DHS issued two memoranda declaring that DHS had made
a new decision terminating MPP. See App. to Pet. for Cert.
257a–345a. At the same time, the Government asked the
Court of Appeals to hold that the case before it was moot, to
vacate the District Court’s judgment and injunction, and to
remand the case for further proceedings. 20 F. 4th 928, 946
(CA5 2021). The Fifth Circuit refused and held that the
October 29 Memoranda did not moot the appeal or have any
other legal effect on the appellate proceedings. Id., at 956–
966, 998–1000. The Fifth Circuit then affirmed the District
Court on the merits.
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 rele-
vant statutes. §1252(f )(1). That conclusion follows from a
straightforward analysis of the text of §1252(f )(1), as recog-
nized by the Court’s decision in Garland v. Aleman Gonza-
lez, 596 U. S. ___ (2022). But that is where the majority and
I part ways.
I agree with JUSTICE BARRETT that the majority should
not go any further and should not resolve other questions
about §1252(f )(1) without adequate briefing or argument.
The Government admits that “this Court could in theory
vacate the judgment below without reaching the merits,”
Supp. Brief for Petitioners 23, but the majority chooses to
decide far more than is necessary or advisable under the
circumstances.
As JUSTICE BARRETT explains, the interpretation of
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72 | ./input/supremecourt_opinions/opinions/21pdf/21-954_7l48.pdf | 6
BIDEN v. TEXAS
ALITO, J., dissenting
should have addressed in the briefs they filed before oral
argument. In its opening brief, the Government’s only dis-
cussion of this issue appeared in a footnote that reads as
follows in its entirety:
“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 of Section
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 Gon-
zalez raised an obvious question. Section 1252(f )(1) refers
to orders that “enjoin or restrain the operation of ” specified
statutory provisions, and in Gonzalez, the Government sug-
gested that this provision should not be interpreted to apply
only to injunctions. Brief for Petitioners 17–19, 32, n. 3,
and Tr. of Oral Arg. 15–16, in Garland v. Aleman Gonzalez,
O. T. 2021, No. 20–322. Instead, the Government refused
to rule out the possibility that the provision might also ap-
ply to class-wide declaratory relief, and it analogized
§1252(f )(1) to the Tax Injunction Act, 28 U. S. C. §1341, and
cited our decision in California v. Grace Brethren Church,
457 U. S. 393 (1982), which interpreted that provision in a
“ ‘practical sense.’ ” Id., at 408.
In the present case, the Government challenged the order
of the District Court “set[ting] aside” under the APA, 5
U. S. C. §706(2), the June termination of MPP, and since
this order had a practical effect that was in some respects
similar to an injunction, the Government’s argument in
Gonzalez raised the question whether the Government
thought that §1252(f )(1) also barred the District Court from
reviewing the termination of the MPP under the APA. That
is an important question the resolution of which could have
effects extending far beyond this particular dispute, and at
oral argument the Solicitor General took the far-reaching
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74 | ./input/supremecourt_opinions/opinions/21pdf/21-954_7l48.pdf | Cite as: 597 U. S. ____ (2022)
7
ALITO, J., dissenting
Tr. of Oral Arg. 13–14. But none of the papers filed by the
Government in this case or in Gonzalez said one word about
APA review. Nor did the respondents’ brief. Indeed, their
brief did not discuss jurisdiction at all.
Faced with this situation, the Court was correctly con-
cerned about deciding the reach of §1252(f )(1) and the im-
portant APA question without any briefing. The Court
could have—and, in my judgment, should have—dealt with
this problem by deciding this case without saying anything
about §1252(f )(1) other than that it bars injunctive relief.
Instead, with the end of the Term looming ahead, the Court
directed the parties to brief these issues, but it gave them
just one week to do so. And as the Court should have antic-
ipated, those briefs raised new questions that it would have
been useful to explore at argument had that been held. But
determined to accommodate the Government’s request that
this case be decided this Term, the majority inadvisably
plows ahead.
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 §1252(f )(1)
issue if it had been addressed in the parties’ regular briefs,
but having relegated the issue to a terse footnote in its brief,
and having been unprepared to discuss the issue at argu-
ment, the Government is not entitled to any further special
treatment. We should simply vacate the decision below and
remand for reconsideration in light of our decision in Gon-
zalez.3 Nothing more is either necessary or appropriate un-
der the circumstances.
III
The Court is not only wrong to reach the merits of this
——————
3 Alternatively, the Court could have put the case over to next Term,
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75 | ./input/supremecourt_opinions/opinions/21pdf/21-954_7l48.pdf | 8
BIDEN v. TEXAS
ALITO, J., dissenting
case, but its analysis of the merits is seriously flawed. First,
the majority errs in holding that the INA does not really
mean what it says when it commands that the aliens in
question “shall” be detained pending removal or asylum
proceedings unless they are either returned to Mexico or
paroled on a case-by-case basis. According to the majority,
it is fine for DHS simply to release these aliens en masse
and allow them to disappear. Second, the majority improp-
erly faults the Court of Appeals for refusing to allow the
Government to derail the appellate process by a last-minute
maneuver designed to thwart review of the manner in
which it initially terminated MPP.
A
As described above, the INA gives DHS three options re-
garding the treatment of the aliens in question while they
await removal or asylum proceedings. They may be (1) de-
tained in this country or (2) returned to Mexico or (3) pa-
roled 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 8 U. S. C. §1225(b)(2)(A) is unequivocal.
With narrow exceptions that are inapplicable here,4 it pro-
vides that every alien “who is an applicant for admission”
and who “the examining immigration officer determines . . .
is not clearly and beyond a doubt entitled to be admitted . . .
——————
4 Entitled “Exception,” §1225(b)(2)(B) provides:
“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 demon-
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77 | ./input/supremecourt_opinions/opinions/21pdf/21-954_7l48.pdf | Cite as: 597 U. S. ____ (2022)
9
ALITO, J., dissenting
shall be detained for a [removal] proceeding.” (Emphasis
added.) Six years ago, the Government argued strenuously
that this requirement is mandatory, and its brief could
hardly have been more categorical or emphatic in making
this point. See Brief for Petitioners in Jennings v. Rodri-
guez, O. T. 2017, No. 15–1204, p. 15 (“Aliens seeking admis-
sion who are not ‘clearly and beyond a doubt entitled to be
admitted’ are statutorily prohibited from physically enter-
ing the United States and must be detained during removal
proceedings . . . , unless the Secretary exercises his discre-
tion to release them on parole”); id., at 17 (“Unlike the word
‘may,’ which implies discretion, the word ‘shall’ usually con-
notes a requirement. And here, the repeated ‘shall be de-
tained’ clearly means what it says” (internal quotation
marks and citations omitted)).
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 . . . Legisla-
ture’ ”).
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 viola-
tions of Congress’s unambiguous detention mandate. 554
F. Supp. 3d, at 851–852. It also found that “the termination | {
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79 | ./input/supremecourt_opinions/opinions/21pdf/21-954_7l48.pdf | 10
BIDEN v. TEXAS
ALITO, J., dissenting
of MPP has contributed to the current border surge” by giv-
ing aliens the “perverse incentiv[e],” id., at 837, App. 196,
to cross the border illegally in hopes of being paroled and
released. Id., at 79. Thus, the Government is failing to
meet the statutory detention mandate, not only because of
limitations on its detention capacity but also because it re-
fuses to use the contiguous-territory return authority.
Other than the argument that “shall” means “may,” the
Government’s only other textual argument is that it is pa-
roling aliens “on a case-by-case basis for urgent humanitar-
ian reasons or significant public benefit,” as permitted un-
der §1182(d)(5)(A). But the number of aliens paroled each
month under that provision—more than 27,000 in April of
this year5—gives rise to a strong inference that the Govern-
ment is not really making these decisions on a case-by-case
basis. The Government argues that respondents had the
burden to show that it is not making case-by-case determi-
nations and that they have not met that burden, see Brief
for Petitioners 34, but information about the true nature of
these proceedings is in the Government’s possession, and it
has revealed little about what actually takes place. At ar-
gument, however, the Solicitor General argued that the
case-by-case determination requirement can be met simply
by going through a brief checklist for each alien. See Tr. of
Oral Arg. 58–60. Even the rudimentary step of verifying
that an alien does not have a criminal record is not per-
formed in every case. Id., at 31. Such procedures are in-
——————
5 See, e.g., Defendants’ Monthly Report for April 2022 in No. 2:21–cv–
67, ECF Doc. 139, p. 4 (ND Tex., May 16, 2022) (“For the month of April
2022, DHS reported that the total number of applicants for admission
under Section 1225 paroled into the United States was 91,250. This fig-
ure combines 88,452 [Customs and Border Patrol] grants of parole . . .
and 27,654 individuals ‘. . . Paroled into the U. S. on a case-by-case basis
pursuant to 8 U. S. C. §1182(d)(5)’ ”); see also Defendants’ Monthly Re-
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81 | ./input/supremecourt_opinions/opinions/21pdf/21-954_7l48.pdf | Cite as: 597 U. S. ____ (2022)
11
ALITO, J., dissenting
consistent with the ordinary meaning of “case-by-case” re-
view, and as the Court of Appeals pointed out, the circum-
stances under which §1182(d)(5)(B)) was adopted bolster
that conclusion. See 20 F. 4th, at 947 (After “the executive
branch on multiple occasions purported to use the parole
power to bring in large groups of immigrants,” “Congress
twice amended 8 U. S. C. §1182(d)(5) to limit the scope of
the parole power and prevent the executive branch from us-
ing it as a programmatic policy tool” (citing T. Aleinikoff
et al., Immigration and Citizenship: Process and Policy 300
(9th ed. 2021))).
The majority claims that the Government’s use of its pa-
role authority under §1182(d)(5)(A) is not before us, ante, at
18, but the Government cites that authority as a reason
why it does not need to use its contiguous-territory return
authority. Brief for Petitioners 6, 33–36. Moreover, the
District Court’s judgment relied on factual findings regard-
ing DHS’s abuse of its parole authority on the record that
the Government provided. 554 F. Supp. 3d, at 837.
For these reasons, §1182(d)(5)(A) cannot justify the re-
lease of tens of thousands of apparently inadmissible aliens
each month, and that leaves the Government with only one
lawful option: continue to return inadmissible aliens to
Mexico. See §1225(b)(2)(C).
2
The majority’s chief defense of the Government’s rejec-
tion of MPP is based on a blinkered method of statutory in-
terpretation that we have firmly rejected. The majority
largely ignores the mandatory detention requirement im-
posed by §1225(b)(2)(A) and, instead, reads the contiguous-
return provision, §1225(b)(2)(C), in isolation. That provi-
sion says that the Secretary “may” return aliens to the
country from which they entered, not that the Secretary
must do so, and for the majority, that is enough to show that
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83 | ./input/supremecourt_opinions/opinions/21pdf/21-954_7l48.pdf | 12
BIDEN v. TEXAS
ALITO, J., dissenting
That reading ignores “the statutory structure” of the INA,
ante, at 14, and wrongly “confine[s] itself to examining a
particular statutory provision in isolation.” FDA v. Brown
& Williamson Tobacco Corp., 529 U. S. 120, 132 (2000). We
have an obligation to read the INA as a “coherent regula-
tory scheme.” Gustafson v. Alloyd Co., 513 U. S. 561, 569
(1995); see also FTC v. Mandel Brothers, Inc., 359 U. S. 385,
389 (1959); Epic Systems Corp. v. Lewis, 584 U. S. ___, ___
(2018) (slip op., at 10); A. Scalia & G. Garner, Reading Law
180 (2012) (describing the “harmonious-reading canon”).
And if we follow that canon, the majority’s interpretation
collapses.
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 ei-
ther: (1) detain them, (2) return them to a contiguous for-
eign 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 Gov-
ernment to comply with the statutory mandate to detain in-
admissible aliens pending further proceedings, it must re-
sort to one or both of the other two options in order to
comply with the detention requirement to the greatest ex-
tent 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 be-
cause it lacks the necessary funds, and this district also de-
clines to arrange for its students to attend a school in an
adjacent district because the law says only that a district
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85 | ./input/supremecourt_opinions/opinions/21pdf/21-954_7l48.pdf | Cite as: 597 U. S. ____ (2022)
13
ALITO, J., dissenting
discretionary authority, the district throws up its hands
and says to its high school students: “We’re sorry. If you
want to go to high school, you will have to make your own
arrangements and foot the bill.” If those students sue,
would any court sustain what the district did?
Other examples come readily to mind. Suppose that a
building code says that every multi-unit residential build-
ing “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 stair-
way 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 per-
mitted?
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 fail-
ure to make use of the discretionary option would not be
seen as a valid excuse for non-compliance with the com-
mand 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
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87 | ./input/supremecourt_opinions/opinions/21pdf/21-954_7l48.pdf | 14
BIDEN v. TEXAS
ALITO, J., dissenting
not say expressly that it was meant to “operate as a man-
datory cure of any non-compliance with the Government’s
detention obligations.” Ante, at 14. But what logic compels
need not be stated expressly.
The majority 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 un-
der which the contiguous-return provision was adopted sug-
gest 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 Ser-
vices, 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 re-
lations implications, and the Constitution gives Congress
broad authority to set immigration policy. See Art. I, §8, cl.
4. This means, we have said, that “[p]olicies pertaining to
the entry of aliens” are “entrusted exclusively to Congress.”
Galvan v. Press, 347 U. S. 522, 531 (1954) (emphasis
added). The President has vital power in the field of foreign
affairs, so does Congress, and the President does not have
the authority to override immigration laws enacted by Con-
gress. Indeed, “[w]hen the President takes measures in-
compatible with the expressed or implied will of Congress,
his power is at its lowest ebb, for then he can rely only upon
his own constitutional powers minus any constitutional | {
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89 | ./input/supremecourt_opinions/opinions/21pdf/21-954_7l48.pdf | Cite as: 597 U. S. ____ (2022)
15
ALITO, J., dissenting
powers of Congress over the matter.” Youngstown Sheet &
Tube Co. v. Sawyer, 343 U. S. 579, 637 (1952) (Jackson, J.,
concurring). And it is Congress, not the Judiciary, that
gave the Executive only three options for dealing with in-
admissible aliens encountered at the border.
Finally, the majority emphasizes the fact that prior ad-
ministrations 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 Ex-
ecutive 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 conclu-
sion: that the October 29 Memoranda purporting to re-ter-
minate MPP did not ultimately affect the merits of the ap-
peal of the judgment that was before that court. The
Government issued its October 29 Memoranda after brief-
ing 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 ad-
ministrative record or give the District Court an oppor-
tunity to review the purported new decision in the first in-
stance by filing a Rule 60(b) motion.6 The majority now
says that the Court of Appeals erred by failing to treat the
October 29 Memoranda as a new, final agency action, but
the majority does not say what applying that label would
have required the Fifth Circuit to do differently.
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
——————
6 See generally 11A C. Wright, A. Miller, & M. Kane, Federal Practice
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91 | ./input/supremecourt_opinions/opinions/21pdf/21-954_7l48.pdf | 16
BIDEN v. TEXAS
ALITO, J., dissenting
one of four responses from the Court of Appeals. The Court
of Appeals could have (1) dismissed the appeal as moot and
vacated the District Court’s judgment and injunction; (2)
held the appeal in abeyance for an unspecified time; (3)
evaluated the October 29 Memoranda as final agency action
in the first instance under the APA; or (4) concluded that
the October 29 Memoranda did not affect the appeal, which
challenged the June termination. The Court of Appeals
picked the fourth option, and taking each option in turn, I
will explain why that was the response best suited to avoid
derailing the ordinary appellate process.
First, the October 29 Memoranda did not moot the ap-
peal. 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 de-
cision holding that the INA allows the Government to re-
lease 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 de-
cision 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 com-
pleted the process of issuing a new termination decision,
but by the time of oral argument in that court, the Govern-
ment claimed that such a decision had been issued. And
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93 | ./input/supremecourt_opinions/opinions/21pdf/21-954_7l48.pdf | Cite as: 597 U. S. ____ (2022)
17
ALITO, J., dissenting
to vacate its judgment under Federal Rule of Civil Proce-
dure 60(b). The Government had sought to expedite pro-
ceedings at every stage, including by seeking emergency re-
lief in the Fifth Circuit and this Court, and under these
circumstances, it was eminently reasonable for the Court of
Appeals to conclude that additional delay would not have
served the interests of “economy of time and effort.” Landis
v. North American Co., 299 U. S. 248, 254 (1936).
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 in-
stance 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 decisionmak-
ing process,” Bennett v. Spear, 520 U. S. 154, 178 (1997) (in-
ternal quotation marks omitted). Moreover, the October 29
Memoranda did not purport to result in a final determina-
tion of “ ‘rights or obligations.’ ” Ibid. As DHS acknowl-
edged, “the termination of MPP” could not “be imple-
mented” 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 im-
pose 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
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95 | ./input/supremecourt_opinions/opinions/21pdf/21-954_7l48.pdf | 18
BIDEN v. TEXAS
ALITO, J., dissenting
decided in its favor.7
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 pro-
ceeding in that fashion, the majority seems to assume that
an administrative agency may obviate a district court deci-
sion setting aside agency action under §706 of the APA by
pursing the following course of conduct: first, appeal the
——————
7 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) (quot-
ing Abbott Laboratories v. Gardner, 387 U. S. 136, 149 (1967)). “To de-
termine 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
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97 | ./input/supremecourt_opinions/opinions/21pdf/21-954_7l48.pdf | Cite as: 597 U. S. ____ (2022)
19
ALITO, J., dissenting
district court decision; second, take a purportedly “new” ac-
tion that achieves the same result as the one previously set
aside; and third, while declining to seek vacatur of the ear-
lier judgment in the district court, ask the court of appeals
to vacate that judgment without reviewing its correctness
or the lawfulness of the second action. The Court of Appeals
was correct to view this as an effort to thwart the normal
appellate process.
*
*
*
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 §706 of the APA.
The District Court should assess, among other things,
whether it is “arbitrary and capricious” for DHS to refuse
to use its contiguous-territory return authority to avoid vi-
olations of the statute’s clear detention mandate; whether
the deterrent effect that DHS found MPP produced in re-
ducing dangerous attempted illegal border crossings, as
well as MPP’s reduction of unmeritorious asylum claims, is
adequately accounted for in the agency’s new decision; and
whether DHS’s rescission of MPP is causing it to make pa-
role decisions on an unlawful categorical basis rather than
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98 | ./input/supremecourt_opinions/opinions/21pdf/21-954_7l48.pdf | Cite as: 597 U. S. ____ (2022)
1
BARRETT, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 21–954
_________________
JOSEPH R. BIDEN, JR., PRESIDENT OF THE UNITED
STATES, ET AL., PETITIONERS v. TEXAS, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[June 30, 2022]
JUSTICE BARRETT, with whom JUSTICE THOMAS, JUSTICE
ALITO, and JUSTICE GORSUCH join as to all but the first sen-
tence, 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 8 U. S. C. §1252(f )(1), a provision of the
Immigration and Nationality Act sharply limiting federal
courts’ “jurisdiction or authority to enjoin or restrain the
operation of ” certain immigration laws, did not present a
jurisdictional bar. Just two weeks ago, however, we repu-
diated their reasoning in Garland v. Aleman Gonzalez, 596
U. S. ___ (2022). Because we are a court of review and not
first view, I would vacate and remand for the lower courts
to reconsider their assertion of jurisdiction in light of Ale-
man Gonzalez.
*
*
*
Section 1252(f )(1) provides that “no court (other than the
Supreme Court) shall have jurisdiction or authority to en-
join or restrain the operation of ” specified immigration pro-
visions, except as applied to “an individual alien against
whom proceedings under [those provisions] have been initi-
ated.” Some lower courts have narrowly interpreted this
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99 | ./input/supremecourt_opinions/opinions/21pdf/21-954_7l48.pdf | 2
BIDEN v. TEXAS
BARRETT, J., dissenting
frames as “requir[ing]” (rather than preventing) the Gov-
ernment’s enforcement of or compliance with the covered
immigration laws. E.g., 20 F. 4th 928, 1004 (CA5 2021). In
this case, that was the only ground pressed by respondents
below and relied on by the lower courts to hold that
§1252(f )(1) did not “ba[r] jurisdiction.” Ibid.; see App. to
Pet. for Cert. 184a; Brief for Appellees in No. 21–10806
(CA5), pp. 40–41. But we just rejected this interpretation
in Aleman Gonzalez. There, we held that §1252(f )(1) de-
prives lower courts of “jurisdiction to entertain” requests for
“injunctions that order federal officials to take or to refrain
from taking actions to enforce, implement, or otherwise
carry out the specified statutory provisions” (subject to an
exception, indisputably inapplicable to this case, for a suit
by an individual noncitizen in proceedings under those pro-
visions). 596 U. S., at ___, ___ (slip op., at 1, 5).
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 §1252(f )(1) that—so far as I can tell—no court of
appeals has ever adopted: that §1252(f )(1) limits only the
lower courts’ remedial authority, not their subject-matter
jurisdiction. The only court of appeals to have addressed
this theory rejected it. Miranda v. Garland, 34 F. 4th 338,
354–356 (CA4 2022). Still, the Court is confident enough to
proceed based on short, barely adversarial supplemental
briefs. (The United States’ original brief devoted only a con-
clusory footnote to the jurisdictional question, and Texas
and Missouri did not respond.) And these supplemental
briefs are particularly unhelpful because, having been sub-
mitted prior to our decision in Aleman Gonzalez, they could
not address that decision’s significance for this case. In
fact, they devoted a considerable portion of their allotted
length to the issue that Aleman Gonzalez subsequently re-
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101 | ./input/supremecourt_opinions/opinions/21pdf/21-954_7l48.pdf | Cite as: 597 U. S. ____ (2022)
3
BARRETT, J., dissenting
This would all matter less if the jurisdictional question
were easy or unimportant—but it is neither. The Court’s
opinion papers over difficult issues, as I will discuss below,
and its jurisdictional holding is likely to affect many cases.
See, e.g., Texas v. Biden, ___ F. Supp. 3d ___, ___, 2022 WL
658579, *14 (ND Tex., Mar. 4, 2022) (§1252(f )(1) does not
bar Texas’ claim that the Federal Government is wrongly
refusing to detain noncitizens to determine if they have
COVID–19); Defendants’ Opposition to Plaintiffs’ Motion
for Temporary Restraining Order 8–9 in Arizona v. CDC,
Civ. No. 6:22–cv–00885 (WD La., Apr. 22, 2022) (arguing
that §1252(f )(1) prohibits a district court from constraining
the Federal Government’s removal discretion in litigation
challenging termination of Title 42 order). We should not
short circuit the ordinary process.
I have several doubts about the Court’s analysis of
§1252(f )(1). To begin with, the Court assumes that we face
an either/or choice between subject-matter jurisdiction and
remedial authority, with the former being only about a
court’s authority to decide merits questions and the latter
being only about the relief a court can grant. Ante, at 9.
This dichotomy makes the Court’s job easier, because it can
use the obvious point that §1252(f )(1) strips lower courts of
remedial authority to establish that §1252(f )(1) does not
strip them of subject-matter jurisdiction. But why is it a
binary choice? I would think that Congress is free to link a
court’s subject-matter jurisdiction to its remedial authority.
That is not so different from an amount-in-controversy re-
quirement, which conditions a district court’s ability to ad-
dress the merits on the relief that the plaintiff seeks. See,
e.g., 28 U. S. C. §1332 (district courts have subject-matter
jurisdiction over diversity cases only when the amount in
controversy exceeds $75,000). And the redressability re-
quirement of Article III itself establishes a tie between ju-
risdiction and remedies, because a court’s inability to order
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103 | ./input/supremecourt_opinions/opinions/21pdf/21-954_7l48.pdf | 4
BIDEN v. TEXAS
BARRETT, J., dissenting
of a question otherwise within its competence. See, e.g.,
California v. Texas, 593 U. S. ___, ___ (2021) (slip op., at 7)
(redressability “consider[s] the relationship between ‘the ju-
dicial relief requested’ and the ‘injury’ suffered”); Los Ange-
les v. Lyons, 461 U. S. 95, 105–107 (1983) (failure to allege
sufficient likelihood of future injury deprives a federal court
of Article III “jurisdiction to entertain [the count] of the
complaint” seeking injunctive relief ).
So it seems to me quite possible that §1252(f )(1) with-
draws subject-matter jurisdiction over cases seeking cer-
tain remedies. Indeed, while the Government has a theory
for why the Court can reach the merits in this case, it char-
acterizes §1252(f )(1) as imposing “jurisdictional limita-
tions” that “speak to ‘a court’s power’ ” and “ ‘can never be
forfeited or waived.’ ” Supplemental Brief for Petitioners
19–20; see also Miranda, 34 F. 4th, at 354 (concluding that
“§1252(f )(1) is a jurisdiction-stripping statute” that cannot
be waived). If there is a reason to treat limitations on
subject-matter jurisdiction and limitations on remedial au-
thority as mutually exclusive—either in general or in this
statutory scheme—the Court does not explain it.
The Court breezes past other questions too. Most nota-
bly, it gives surprisingly little attention to a phrase on
which it places significant weight: §1252(f )(1)’s parenthe-
tical exempting “the Supreme Court” from its general bar
on “jurisdiction or authority.” The parties hardly discuss
this parenthetical, which does not appear to have an ana-
logue elsewhere in the United States Code. The Court,
however, takes the phrase as conclusive evidence that
§1252(f )(1) does not deprive district courts of subject-
matter jurisdiction over “non-individual claims under [the
covered provisions],” because if it did, “no such claims could
ever arrive at this Court, rendering the provision’s specific
carveout for Supreme Court injunctive relief nugatory.”
Ante, at 10.
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105 | ./input/supremecourt_opinions/opinions/21pdf/21-954_7l48.pdf | Cite as: 597 U. S. ____ (2022)
5
BARRETT, J., dissenting
Court does not explain how it would work. Does it mean
that the restriction on remedial authority is subject to
waiver or forfeiture, so that a lower court can sometimes
properly enter non-individual injunctive relief that this
Court can then review? That a district court has the au-
thority to enter some kinds of non-individual relief (for ex-
ample, a classwide declaratory judgment) and that this
Court can enter different relief (for example, a classwide in-
junction) on review of that judgment? Or that this Court
can enter an injunction on appeal if the district court could
have entered at least one form of relief, even if it actually
entered only relief that exceeded its authority?* Or per-
haps the parenthetical serves the very different purpose of
clarifying that §1252(f )(1) does not disturb any pre-existing
authority this Court has under the All Writs Act or other
sources. These are difficult questions, yet the Court does
not address any of them.
Indeed, the Court explicitly chooses not to opine on some
of the issues that might help explain the parenthetical’s un-
usual reservation. See ante, at 12, n. 4. For example, the
Court declines to decide whether the bar in §1252(f )(1) is
subject to forfeiture, even though that is a defining feature
——————
*For instance, in this case, the States sought declaratory relief, injunc-
tive relief, and vacatur of the Government’s termination of the Migrant
Protection Protocols, but the District Court expressly entered only the
latter two. If the District Court could have issued a declaratory judg-
ment, perhaps this Court could exercise appellate jurisdiction even if the
District Court lacked authority to issue an injunction or vacatur. The
Court suggests that this happened in Nielsen v. Preap, 586 U. S. ___
(2019), in which, it says, the District Court also awarded only injunctive
relief. Ante, at 11. But the issue is more complicated than the Court lets
on. Preap involved consolidated cases. In the first, the plaintiffs sought
declaratory and injunctive relief, but the District Court entered only the
latter. See Preap v. Johnson, 303 F. R. D. 566, 587 (ND Cal. 2014). In
the second, however, the District Court entered “only [a] declaratory rul-
ing,” with no accompanying injunction. Khoury v. Asher, 3 F. Supp. 3d
877, 892 (WD Wash. 2014). So unlike today’s case, Preap did not involve
only a hypothetical declaratory judgment. | {
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107 | ./input/supremecourt_opinions/opinions/21pdf/21-954_7l48.pdf | 6
BIDEN v. TEXAS
BARRETT, J., dissenting
of nonjurisdictional rules. See, e.g., Hamer v. Neighborhood
Housing Servs. of Chicago, 583 U. S. ___, ___–___ (2017)
(slip op., at 2–3).
It reserves the question whether
§1252(f )(1) bars declaratory relief, an issue on which there
are conflicting views. Compare Alli v. Decker, 650 F. 3d
1007, 1013 (CA3 2011) (it does not bar declaratory relief ),
with id., at 1019–1021 (Fuentes, J., dissenting) (it does),
with Hamama v. Adducci, 912 F. 3d 869, 880, n. 8 (CA6
2018) (it depends). And it avoids a position on whether
§1252(f )(1) prevents a lower court from vacating or setting
aside an agency action under the Administrative Procedure
Act. See 5 U. S. C. §706(2). Not that I fault the Court for
holding back. Quite the contrary: The questions surround-
ing §1252(f )(1) are complex and deserve more attention
than we can give them in this posture.
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 state-
ment rejecting an inapposite argument that §1252(f )(1) is
a jurisdictional grant, see Reno v. American-Arab Anti-
Discrimination Comm., 525 U. S. 471, 481 (1999), a brief
discussion from a plurality opinion in a case where the
§1252(f )(1) issue had not been briefed or argued by the par-
ties in this Court, see Nielsen v. Preap, 586 U. S. ___, ___–
___ (2019) (slip op., at 8–9), and a dissent, see Jennings v.
Rodriguez, 583 U. S ___, ___ (2018) (opinion of BREYER, J.)
(slip op., at 31). None provides a clear roadmap for this
case.
*
*
*
Given all this, I would tread more carefully. We should
let the lower courts be the first to address the substantial
antecedent questions that §1252(f )(1) presents in light of
our hot-off-the-presses decision in Aleman Gonzalez. I re-
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109 | ./input/supremecourt_opinions/opinions/21pdf/21-147_g31h.pdf | (Slip Opinion)
OCTOBER TERM, 2021
1
Syllabus
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.
SUPREME COURT OF THE UNITED STATES
Syllabus
EGBERT v. BOULE
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 21–147. Argued March 2, 2022—Decided June 8, 2022
Respondent Robert Boule owns a bed-and-breakfast—the Smuggler’s
Inn—in Blaine, Washington. The inn abuts the international border
between Canada and the United States. Boule at times helped federal
agents identify and apprehend persons engaged in unlawful cross-bor-
der activity on or near his property. But Boule also would provide
transportation and lodging to illegal border crossers. Often, Boule
would agree to help illegal border crossers enter or exit the United
States, only to later call federal agents to report the unlawful activity.
In 2014, Boule informed petitioner Erik Egbert, a U. S. Border Pa-
trol agent, that a Turkish national, arriving in Seattle by way of New
York, had scheduled transportation to Smuggler’s Inn. When Agent
Egbert observed one of Boule’s vehicles returning to the inn, he sus-
pected that the Turkish national was a passenger and followed the ve-
hicle to the inn. On Boule’s account, Boule asked Egbert to leave, but
Egbert refused, became violent, and threw Boule first against the ve-
hicle and then to the ground. Egbert then checked the immigration
paperwork for Boule’s guest and left after finding everything in order.
The Turkish guest unlawfully entered Canada later that evening.
Boule filed a grievance with Agent Egbert’s supervisors and an ad-
ministrative claim with Border Patrol pursuant to the Federal Tort
Claims Act (FTCA). Egbert allegedly retaliated against Boule by re-
porting Boule’s “SMUGLER” license plate to the Washington Depart-
ment of Licensing for referencing illegal activity, and by contacting the
Internal Revenue Service and prompting an audit of Boule’s tax re-
turns. Boule’s FTCA claim was ultimately denied, and Border Patrol
took no action against Egbert for his use of force or alleged acts of re-
taliation. Boule then sued Egbert in Federal District Court, alleging
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111 | ./input/supremecourt_opinions/opinions/21pdf/21-147_g31h.pdf | 2
EGBERT v. BOULE
Syllabus
Amendment violation for unlawful retaliation. Invoking Bivens v. Six
Unknown Fed. Narcotics Agents, 403 U. S. 388, Boule asked the Dis-
trict Court to recognize a damages action for each alleged constitu-
tional violation. The District Court declined to extend Bivens as re-
quested, but the Court of Appeals reversed.
Held: Bivens does not extend to create causes of action for Boule’s Fourth
Amendment excessive-force claim and First Amendment retaliation
claim. Pp. 5–17.
(a) In Bivens, the Court held that it had authority to create a dam-
ages action against federal agents for violating the plaintiff’s Fourth
Amendment rights. Over the next decade, the Court also fashioned
new causes of action under the Fifth Amendment, see Davis v. Pass-
man, 442 U. S. 228, and the Eighth Amendment, see Carlson v. Green,
446 U. S. 14. Since then, however, the Court has come “to appreciate
more fully the tension between” judicially created causes of action and
“the Constitution’s separation of legislative and judicial power,” Her-
nández v. Mesa, 589 U. S. ___, ___, and has declined 11 times to imply
a similar cause of action for other alleged constitutional violations, see,
e.g., Chappell v. Wallace, 462 U. S. 296; Bush v. Lucas, 462 U. S. 367.
Rather than dispense with Bivens, the Court now emphasizes that rec-
ognizing a Bivens cause of action is “a disfavored judicial activity.”
Ziglar v. Abbasi, 582 U. S. ___, ___.
The analysis of a proposed Bivens claim proceeds in two steps: A
court asks first whether the case presents “a new Bivens context”—i.e.,
is it “meaningfully different from the three cases in which the Court
has implied a damages action,” Ziglar, 582 U. S., at ___, and, second,
even if so, do “special factors” indicate that the Judiciary is at least
arguably less equipped than Congress to “weigh the costs and benefits
of allowing a damages action to proceed.” Id., at ___. This two-step
inquiry often resolves to a single question: whether there is any reason
to think that Congress might be better equipped to create a damages
remedy. Further, under the Court’s precedents, a court may not fash-
ion a Bivens remedy if Congress already has provided, or has author-
ized the Executive to provide, “an alternative remedial structure.”
Ziglar, 582 U. S., at ___. Pp. 5–8.
(b) The Court of Appeals conceded that Boule’s Fourth Amendment
claim presented a new Bivens context, but its conclusion that there
was no reason to hesitate before recognizing a cause of action against
Agent Egbert was incorrect for two independent reasons. Pp. 9–13.
(1) First, the “risk of undermining border security provides reason
to hesitate before extending Bivens into this field.” Hernández, 589
U. S., at ___. In Hernández, the Court declined to create a damages
remedy for an excessive-force claim against a Border Patrol agent be-
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113 | ./input/supremecourt_opinions/opinions/21pdf/21-147_g31h.pdf | Cite as: 596 U. S. ____ (2022)
3
Syllabus
has national security implications.” Id., at ___. That reasoning applies
with full force here. The Court of Appeals disagreed because it viewed
Boule’s Fourth Amendment claim as akin to a “conventional” exces-
sive-force claim, as in Bivens, and less like the cross-border shooting
in Hernández. But that does not bear on the relevant point: Permitting
suit against a Border Patrol agent presents national security concerns
that foreclose Bivens relief. Further, the Court of Appeals’ analysis
betrays the pitfalls of applying the special-factors analysis at too gran-
ular a level. A court should not inquire whether Bivens relief is appro-
priate in light of the balance of circumstances in the “particular case.”
United States v. Stanley, 483 U. S. 669, 683. Rather, it should ask
“[m]ore broadly” whether there is any reason to think that “judicial
intrusion” into a given field might be “harmful” or “inappropriate,” id.,
at 681. The proper inquiry here is whether a court is competent to
authorize a damages action not just against Agent Egbert, but against
Border Patrol agents generally. The answer is no. Pp. 9–12.
(2) Second, Congress has provided alternative remedies for ag-
grieved parties in Boule’s position that independently foreclose a
Bivens action here. By regulation, Border Patrol must investigate
“[a]lleged violations” and accept grievances from “[a]ny persons.” 8
CFR §§287.10(a)–(b). Boule claims that this regulatory grievance pro-
cedure was inadequate, but this Court has never held that a Bivens
alternative must afford rights such as judicial review of an adverse
determination. Bivens “is concerned solely with deterring the uncon-
stitutional acts of individual officers.” Correctional Services Corp. v.
Malesko, 534 U. S. 61, 71. And, regardless, the question whether a
given remedy is adequate is a legislative determination. As in Her-
nández, this Court has no warrant to doubt that the consideration of
Boule’s grievance secured adequate deterrence and afforded Boule an
alternative remedy. See 589 U. S., at ___. Pp. 12–13.
(c) There is no Bivens cause of action for Boule’s First Amendment
retaliation claim. That claim presents a new Bivens context, and there
are many reasons to think that Congress is better suited to authorize
a damages remedy. Extending Bivens to alleged First Amendment vi-
olations would pose an acute “risk that fear of personal monetary lia-
bility and harassing litigation will unduly inhibit officials in the dis-
charge of their duties.” Anderson v. Creighton, 483 U. S. 635, 638. In
light of these costs, “Congress is in a better position to decide whether
or not the public interest would be served” by imposing a damages ac-
tion. Bush, 462 U. S., at 389. The Court of Appeals’ reasons for ex-
tending Bivens in this context—that retaliation claims are “well-estab-
lished” and that Boule alleges that Agent Egbert “was not carrying out
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115 | ./input/supremecourt_opinions/opinions/21pdf/21-147_g31h.pdf | 4
EGBERT v. BOULE
Syllabus
merit is Boule’s claim that this Court identified a Bivens cause of ac-
tion under allegedly similar circumstances in Passman. Even assum-
ing factual parallels, Passman carries little weight because it predates
the Court’s current approach to implied causes of action. A plaintiff
cannot justify a Bivens extension based on “parallel circumstances”
with Bivens, Passman, or Carlson—the three cases in which the Court
has implied a damages action—unless the plaintiff also satisfies the
prevailing “analytic framework” prescribed by the last four decades of
intervening case law. Ziglar, 582 U. S., at ___–___. Pp. 13–16.
998 F. 3d 370, reversed.
THOMAS, J., delivered the opinion of the Court, in which ROBERTS, C. J.,
and ALITO, KAVANAUGH, and BARRETT, JJ., joined. GORSUCH, J., filed an
opinion concurring in the judgment. SOTOMAYOR, J., filed an opinion con-
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116 | ./input/supremecourt_opinions/opinions/21pdf/21-147_g31h.pdf | Cite as: 596 U. S. ____ (2022)
1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 21–147
_________________
ERIK EGBERT, PETITIONER v. ROBERT BOULE
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 8, 2022]
JUSTICE THOMAS delivered the opinion of the Court.
In Bivens v. Six Unknown Fed. Narcotics Agents, 403
U. S. 388 (1971), this Court authorized a damages action
against federal officials for alleged violations of the Fourth
Amendment. Over the past 42 years, however, we have de-
clined 11 times to imply a similar cause of action for other
alleged constitutional violations. See Chappell v. Wallace,
462 U. S. 296 (1983); Bush v. Lucas, 462 U. S. 367 (1983);
United States v. Stanley, 483 U. S. 669 (1987); Schweiker v.
Chilicky, 487 U. S. 412 (1988); FDIC v. Meyer, 510 U. S. 471
(1994); Correctional Services Corp. v. Malesko, 534 U. S. 61
(2001); Wilkie v. Robbins, 551 U. S. 537 (2007); Hui v. Cas-
taneda, 559 U. S. 799 (2010); Minneci v. Pollard, 565 U. S.
118 (2012); Ziglar v. Abbasi, 582 U. S. ___ (2017); Hernán-
dez v. Mesa, 589 U. S. ___ (2020). Nevertheless, the Court
of Appeals permitted not one, but two constitutional dam-
ages actions to proceed against a U. S. Border Patrol agent:
a Fourth Amendment excessive-force claim and a First
Amendment retaliation claim. Because our cases have
made clear that, in all but the most unusual circumstances,
prescribing a cause of action is a job for Congress, not the
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118 | ./input/supremecourt_opinions/opinions/21pdf/21-147_g31h.pdf | 2
EGBERT v. BOULE
Opinion of the Court
I
Blaine, Washington, is the last town in the United States
along U. S. Interstate Highway 5 before reaching the Cana-
dian border. Respondent Robert Boule is a longtime Blaine
resident. The rear of his property abuts the Canadian bor-
der at “0 Avenue,” a Canadian street. Boule’s property line
actually extends five feet into Canada. Several years ago,
Boule placed a line of small stones on his property to mark
the international boundary. As shown below, any person
could easily enter the United States or Canada through or
near Boule’s property. See App. 100.
Boule markets his home as a bed-and-breakfast aptly
named “Smuggler’s Inn.” The area surrounding the Inn “is
a hotspot for cross-border smuggling of people, drugs, illicit
money, and items of significance to criminal organizations.”
Id., at 91. “On numerous occasions,” U. S. Border Patrol
agents “have observed persons come south across the bor-
der and walk into Smuggler’s Inn through the back door.”
Id., at 101. Federal agents also have seized from the Inn
shipments of cocaine, methamphetamine, ecstasy, and
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119 | ./input/supremecourt_opinions/opinions/21pdf/21-147_g31h.pdf | Cite as: 596 U. S. ____ (2022)
3
Opinion of the Court
informant who would help federal agents identify and ap-
prehend persons engaged in unlawful cross-border activity
on or near his property. Boule claims that the Government
has paid him upwards of $60,000 for his services.
Ever the entrepreneur, Boule saw his relationship with
Border Patrol as a business opportunity. Boule would host
persons who unlawfully entered the United States as
“guests” at the Inn and offer to drive them to Seattle or else-
where. He also would pick up Canada-bound guests
throughout the State and drive them north to his property
along the border. Either way, Boule would charge $100–
$150 per hour for his shuttle service and require guests to
pay for a night of lodging even if they never intended to stay
at the Inn. Meanwhile, Boule would inform federal law en-
forcement if he was scheduled to lodge or transport persons
of interest. In short order, Border Patrol agents would ar-
rive to arrest the guests, often within a few blocks of the
Inn. Boule would decline to offer his erstwhile customers a
refund. In his view, this practice was “nothing any different
than [the] normal policies of any hotel/motel.” Id., at 120.1
In light of Boule’s business model, local Border Patrol
agents, including petitioner Erik Egbert, were well ac-
quainted with Smuggler’s Inn and the criminal activity that
attended it. On March 20, 2014, Boule informed Agent Eg-
bert that a Turkish national, arriving in Seattle by way of
New York, had scheduled transportation to Smuggler’s Inn
later that day. Agent Egbert grew suspicious, as he could
think of “no legitimate reason a person would travel from
Turkey to stay at a rundown bed-and-breakfast on the bor-
der in Blaine.” Id., at 104. The photograph below displays
the amenities for which Boule’s Turkish guest would have
——————
1 Notwithstanding his defense of the Inn’s policies, Boule was recently
convicted in Canadian court for engaging in human trafficking. In De-
cember 2021, he pleaded guilty to trafficking 11 Afghanis and Syrians
into Canada. He billed each foreign national between $200 and $700 for
the trip. See Regina v. Boule, 2021 BCSC 2561, ¶¶7–11. | {
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121 | ./input/supremecourt_opinions/opinions/21pdf/21-147_g31h.pdf | 4
EGBERT v. BOULE
Opinion of the Court
traveled more than 7,500 miles. See id., at 102.
Later that afternoon, Agent Egbert observed one of
Boule’s vehicles—a black SUV with the license plate
“SMUGLER”—returning to the Inn. Agent Egbert sus-
pected that Boule’s Turkish guest was a passenger and fol-
lowed the SUV into the driveway so he could check the
guest’s immigration status. On Boule’s account, the situa-
tion escalated from there. Boule instructed Agent Egbert
to leave his property, but Agent Egbert declined. Instead,
Boule claims, Agent Egbert lifted him off the ground and
threw him against the SUV. After Boule collected himself,
Agent Egbert allegedly threw him to the ground. Agent Eg-
bert then checked the guest’s immigration paperwork, con-
cluded that everything was in order, and left. Later that
evening, Boule’s Turkish guest unlawfully entered Canada
from Smuggler’s Inn.
Boule lodged a grievance with Agent Egbert’s supervi-
sors, alleging that Agent Egbert had used excessive force
and caused him physical injury. Boule also filed an admin-
istrative claim with Border Patrol pursuant to the Federal
Tort Claims Act (FTCA). See 28 U. S. C. §2675(a). Accord-
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122 | ./input/supremecourt_opinions/opinions/21pdf/21-147_g31h.pdf | Cite as: 596 U. S. ____ (2022)
5
Opinion of the Court
claims were pending by
those
reporting Boule’s
“SMUGLER” license plate to the Washington Department
of Licensing for referencing illegal conduct, and by contact-
ing the Internal Revenue Service and prompting an audit
of Boule’s tax returns. Ultimately, Boule’s FTCA claim was
denied and, after a year-long investigation, Border Patrol
took no action against Agent Egbert for his alleged use of
force or acts of retaliation. Thereafter, Agent Egbert con-
tinued to serve as an active-duty Border Patrol agent.
In January 2017, Boule sued Agent Egbert in his individ-
ual capacity in Federal District Court, alleging a Fourth
Amendment violation for excessive use of force and a First
Amendment violation for unlawful retaliation. Boule in-
voked Bivens and asked the District Court to recognize a
damages action for each alleged constitutional violation.
The District Court declined to extend a Bivens remedy to
Boule’s claims and entered judgment for Agent Egbert. The
Court of Appeals reversed. See 998 F. 3d 370, 385 (CA9
2021). Twelve judges dissented from the denial of rehear-
ing en banc. See id., at 373 (Bumatay, J., dissenting); id.,
at 384 (Owens, J., dissenting); ibid. (Bress, J., dissenting).
We granted certiorari. 595 U. S. ___ (2021).
II
In Bivens, the Court held that it had authority to create
“a cause of action under the Fourth Amendment” against
federal agents who allegedly manacled the plaintiff and
threatened his family while arresting him for narcotics vio-
lations. 403 U. S., at 397. Although “the Fourth Amend-
ment does not in so many words provide for its enforcement
by an award of money damages,” id., at 396, the Court “held
that it could authorize a remedy under general principles of
federal jurisdiction,” Ziglar, 582 U. S., at ___ (slip op., at 7)
(citing Bivens, 403 U. S., at 392). Over the following decade,
the Court twice again fashioned new causes of action under
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124 | ./input/supremecourt_opinions/opinions/21pdf/21-147_g31h.pdf | 6
EGBERT v. BOULE
Opinion of the Court
Fifth Amendment sex-discrimination claim, see Davis v.
Passman, 442 U. S. 228 (1979); and second, for a federal
prisoner’s inadequate-care claim under the Eighth Amend-
ment, see Carlson v. Green, 446 U. S. 14 (1980).
Since these cases, the Court has not implied additional
causes of action under the Constitution. Now long past “the
heady days in which this Court assumed common-law pow-
ers to create causes of action,” Malesko, 534 U. S., at 75
(Scalia, J., concurring), we have come “to appreciate more
fully the tension between” judicially created causes of ac-
tion and “the Constitution’s separation of legislative and ju-
dicial power,” Hernández, 589 U. S., at ___ (slip op., at 5).
At bottom, creating a cause of action is a legislative en-
deavor. Courts engaged in that unenviable task must eval-
uate a “range of policy considerations . . . at least as broad
as the range . . . a legislature would consider.” Bivens, 403
U. S., at 407 (Harlan, J., concurring in judgment); see also
post, at 2 (GORSUCH, J., concurring in judgment). Those
factors include “economic and governmental concerns,” “ad-
ministrative costs,” and the “impact on governmental oper-
ations systemwide.” Ziglar, 582 U. S., at ___, ___ (slip op.,
at 10, 13). Unsurprisingly, Congress is “far more competent
than the Judiciary” to weigh such policy considerations.
Schweiker, 487 U. S., at 423. And the Judiciary’s authority
to do so at all is, at best, uncertain. See, e.g., Hernández,
589 U. S., at ___ (slip op., at 6).
Nonetheless, rather than dispense with Bivens alto-
gether, we have emphasized that recognizing a cause of ac-
tion under Bivens is “a disfavored judicial activity.” Ziglar,
582 U. S., at ___ (slip op., at 11) (internal quotation marks
omitted); Hernández, 589 U. S., at ___ (slip op., at 7) (inter-
nal quotation marks omitted). When asked to imply a
Bivens action, “our watchword is caution.” Id., at ___ (slip
op., at 6). “[I]f there are sound reasons to think Congress
might doubt the efficacy or necessity of a damages rem-
edy[,] the courts must refrain from creating [it].” Ziglar, | {
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