case_law | United States Federal
Biden v. Texas
Summary
The Government’s rescission of Migrant Protection Protocols did not violate section 1225 of the Immigration and Nationality Act, and the then-Secretary of Homeland Security’s October 29 Memoranda constituted valid final agency action.
Text
PRELIMINARY PRINT Volume 597 U. S. Part 2 Pages 785–840 OFFICIAL REPORTS OF THE SUPREME COURT June 30, 2022 REBECCA A. WOMELDORF reporter of decisions Page Proof Pending Publication NOTICE: This preliminary print is subject to formal revision before the bound volume is published. Users are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D.C. 20543, [email protected], of any typographical or other formal errors. Page Proof Pending Publication OCTOBER TERM, 2021 785 Syllabus BIDEN et al. v. TEXAS et al. certiorari to the united states court of appeals for the fth 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 “arriv- ing 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 administra- tions, the Biden administration announced that it would suspend the program, and on June 1, 2021, the Secretary of Homeland Security is- sued a memorandum offcially 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 Administrative Procedure Act (APA). The District Court entered judgment for re- spondents. The court frst concluded that terminating MPP would vio- late the INA, reasoning that section 1225 of the INA “provides the gov- ernment 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 obli- gations under section 1225(b)(2)(A) due to resource constraints, the court reasoned, terminating MPP would necessarily lead to the systemic 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. 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 suffcient detention capacity to detain all aliens subject to mandatory detention under [section 1225] Page Proof Pending Publication 786 BIDEN v. TEXAS Syllabus without releasing any aliens because of a lack of detention resources.” 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 affrmed 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 pro- gram would violate the INA, concluding that the return policy was man- datory so long as illegal entrants were being released into the United States. The Court of Appeals also held that “[t]he October 29 Memo- randa did not constitute a new and separately reviewable `fnal 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 fnal agency action. Pp. 797–814. (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. 543, 550. 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 authority” 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 specifc 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 adjudi- cate any non-individual claims under sections 1221 through 1232, no such claims could ever arrive at this Court, rendering the specifc carveout for Supreme Court injunctive relief nugatory. Statutory structure likewise confrms 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”). Finally, Page Proof Pending Publication Cite as: 597 U. S. 785 (2022) 787 Syllabus this Court previously encountered a virtually identical situation in Niel- sen v. Preap, 586 U. S. –––, and proceeded to reach the merits of the suit notwithstanding the District Court's apparent violation of section 1252(f)(1). Pp. 797–801. (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 contiguous 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. –––, –––. Respondents and the Court of Appeals concede that point, but urge an inference from the statutory structure: because section 1225(b)(2)(A) makes detention mandatory, they argue, the otherwise-discretionary re- turn authority in section 1225(b)(2)(C) becomes mandatory when the Secretary violates that mandate. The problem is that the statute does not say anything like that. The statute says “may.” If Congress had intended section 1225(b)(2)(C) to operate as a mandatory cure of any noncompliance with the Government's detention obligations, it would not have conveyed that intention through an unspoken inference in con- fict with the unambiguous, express term “may.” The contiguous- territory return authority in section 1225(b)(2)(C) is discretionary—and remains discretionary notwithstanding any violation of section 1225(b)(2)(A). The historical context in which section 1225(b)(2)(C) was adopted con- frms the plain import of its text. Section 1225(b)(2)(C) was added to the statute more than 90 years after the “shall be detained” language that appears in section 1225(b)(2)(A). And the provision was enacted in response to a BIA decision that had questioned the legality of the contiguous-territory return practice. Moreover, since its enactment, every Presidential administration has interpreted section 1225(b)(2)(C) as purely discretionary, notwithstanding the consistent shortfall of funds to comply with section 1225(b)(2)(A). The foreign affairs consequences of mandating the exercise of contiguous-territory return likewise confrm that the Court of Appeals erred. Interpreting section 1225(b)(2)(C) as a mandate imposes a sig- nifcant burden upon the Executive's ability to conduct diplomatic rela- tions with Mexico, one that Congress likely did not intend section 1225(b)(2)(C) to impose. And fnally, the availability of parole as an alternative means of processing applicants for admission, see 8 U. S. C. § 1182(d)(5)(A), additionally makes clear that the Court of Appeals erred Page Proof Pending Publication 788 BIDEN v. TEXAS Syllabus in holding that the INA required the Government to continue imple- menting MPP. Pp. 801–807. (c) The Court of Appeals also erred in holding that “[t]he October 29 Memoranda did not constitute a new and separately reviewable `fnal 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 fnal agency action for the same reasons that the June 1 Memorandum was fnal agency action: Both “mark[ed] the `consummation' of the agency's decisionmaking proc- ess” and resulted in “rights and obligations [being] determined.” Ben- nett 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 specifc agency actions contained in the June 1 Memorandum and October 29 Memoranda. Second, and relat- edly, the October 29 Memoranda were not a mere post hoc rationaliza- tion of the June 1 Memorandum. The prohibition on post hoc rational- ization applies only when the agency proceeds by the frst option from Regents. Here, the Secretary chose the second option from Regents and “issue[d] a new rescission bolstered by new reasons absent from the [June 1] Memorandum.” 591 U. S., at –––. Having returned to the drawing table, the Secretary was not subject to the charge of post hoc rationalization. Third, respondents invoke Department of Commerce v. New York, 588 U. S. –––. But nothing in this record suggests a “signifcant mismatch between the decision the Secretary made and the rationale he pro- vided.” Id., at –––. Relatedly, the Court of Appeals charged that the Secretary failed to proceed with a suffciently open mind. But this Court has previously rejected criticisms of agency closemindedness based on an identity between proposed and fnal 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 injunc- tion as relevant to the question of the October 29 Memoranda's status as fnal agency action. Nothing prevents an agency from undertaking new agency action while simultaneously appealing an adverse judgment against its original action. Pp. 807–814. Cite as: 597 U. S. 785 (2022) 789 Syllabus 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., fled a concurring opinion, post, p. 814. Alito, J., fled a dissenting opinion, in which Thomas and Gorsuch, JJ., joined, post, p. 816. Barrett, J., fled a dissenting opinion, in which Thomas, Alito, and Gorsuch, JJ., joined, as to all but the frst sentence, post, p. 835. Solicitor General Prelogar argued the cause for petition- ers. With her on the brief were Principal Deputy Assist- ant Attorney General Boynton, Deputy Solicitor General Gannon, Michael R. Huston, Austin L. Raynor, Erez Reu- veni, and Brian Ward. Judd E. Stone II, Solicitor General of Texas, argued the cause for respondents. With him on the brief were Ken Paxton, Attorney General, Brent Webster, First Assistant Attorney General, Lanora C. Pettit, Principal Deputy Solici- tor General, Benjamin D. Wilson, Deputy Solicitor General, Eric S. Schmitt, Attorney General of Missouri, D. John Sauer, Solicitor General, and Jesus A. Osete, Deputy Attor- ney General.* *Briefs of amici curiae urging reversal were fled for the State of Illi- nois et al. by Kwame Raoul, Attorney General of Illinois, Jane Elinor Notz, Solicitor General, Alex Hemmer, Deputy Solicitor General, and Pri- yanka Gupta, Assistant Attorney General, by Matthew J. Platkin, Acting Attorney General of New Jersey, and by the Attorneys General for their respective jurisdictions as follows: Rob Bonta of California, William Tong of Connecticut, Kathleen Jennings of Delaware, Karl A. Racine of the District of Columbia, Holly T. Shikada of Hawaii, Aaron M. Frey of Maine, Brian E. Frosh of Maryland, Maura Healey of Massachusetts, Dana Nessel of Michigan, Keith Ellison of Minnesota, Aaron D. Ford of Nevada, Hector Balderas of New Mexico, Letitia James of New York, Ellen F. Rosenblum of Oregon, Peter F. Neronha of Rhode Island, and Thomas J. Donovan, Jr., of Vermont; for Bipartisan Former Offcials of the Department of Homeland Security et al. by Elizabeth B. Wydra and Brianne J. Gorod; for the Border Project et al. by Stephen J. Brogan and Victoria Dorfman; for Former Department of Homeland Security Secre- tary Jeh C. Johnson et al. by Moses Silverman; for Public Citizen by Nan- dan M. Joshi, Allison M. Zieve , and Scott L. Nelson; for the United States Page Proof Pending Publication 790 BIDEN v. TEXAS Opinion of the Court Chief Justice Roberts delivered the opinion of the Court. In January 2019, the Department of Homeland Security— under the administration of President Trump—established the Migrant Protection Protocols. That program provided for the return to Mexico of non-Mexican aliens who had been detained attempting to enter the United States illegally from Mexico. On Inauguration Day 2021, the new administration Conference of Catholic Bishops et al. by Ethan D. Dettmer and Joshua S. Lipshutz; for Professor Benjamin Eidelson by Mr. Eidelson, pro se; for 25 Cities et al. by Daniel R. Suvor, Kevin Morrow, Leslie J. Girard, Diana P . Cortes, Christopher J. Caso, Kristin M. Bronson, Lyndsey M. Olson, William C. Fosbre, Arturo G. Michel, and Michael Feuer; and for 61 Immi- gration Advocacy and Legal Service Organizations by Karen C. Tumlin, Esther H. Sung, Jane Petersen Bentrott, Kelly J. Huggins, Jeffrey T. Green, Tamara F. Goodlette, and Naomi A. Igra. Kathleen R. Hartnett and Adam S. Gershenson fled a brief for Administrative Law Professors as amici curiae urging vacatur. Briefs of amici curiae urging affrmance were fled for the State of Indiana et al. by Theodore E. Rokita, Attorney General of Indiana, Thomas M. Fisher, Solicitor General, Aaron T. Craft, James A. Barta, Deputy Solicitor General, and Julia C. Payne and Melinda R. Holmes, Deputy Attorneys General, and by the Attorneys General for their respec- tive States as follows: Steve Marshall of Alabama, Treg Taylor of Alaska, Mark Brnovich of Arizona, Leslie Rutledge of Arkansas, Ashley Moody of Florida, Christopher M. Carr of Georgia, Derek Schmidt of Kansas, Daniel Cameron of Kentucky, Jeff Landry of Louisiana, Lynn Fitch of Mississippi, Austin Knudsen of Montana, Doug Peterson of Nebraska, Dave Yost of Ohio, John M. O'Connor of Oklahoma, Alan Wilson of South Carolina, Sean Reyes of Utah, Jason Miyares of Virginia, and Patrick Morrisey of West Virginia; for Advancing American Freedom by Matthew J. Sheehan; for Advocates for Victims of Illegal Alien Crime by Walter S. Zimolong III; for the America First Legal Foundation by Gene P . Hamil- ton; for the Center for Immigration Studies by Julie B. Axelrod; for the Immigration Reform Law Institute by Christopher J. Hajec; and for the Landmark Legal Foundation by Matthew C. Forys, Michael J. O'Neill, and Richard P . Hutchison. Anjan Choudhury, Ahilan Arulanantham, Talia Inlender , and Hiroshi Motomura fled a brief for the Center for Immigration Law and Policy, UCLA School of Law, as amicus curiae. Page Proof Pending Publication Cite as: 597 U. S. 785 (2022) 791 Opinion of the Court of President Biden announced that the program would be suspended the next day, and later that year sought to termi- nate it. The District Court and the Court of Appeals, how- ever, held that doing so would violate the Immigration and Nationality Act, concluding that the return policy was man- datory so long as illegal entrants were being released into the United States. The District Court also held that the attempted rescission of the program was inadequately ex- plained in violation of the Administrative Procedure Act. While its appeal was pending, the Government took new ac- tion to terminate the policy with a more detailed explana- tion. But the Court of Appeals held that this new action was not separately reviewable fnal agency 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 fnal agency action. I A On December 20, 2018, then-Secretary of Homeland Secu- rity Kirstjen Nielsen announced a new program called Re- main in Mexico, also known as the Migrant Protection Proto- cols (MPP). MPP was created in response to an immigration surge at the country's southern border, and a resulting “humanitarian and border security crisis” in which federal immigration offcials 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. Page Proof Pending Publication 792 BIDEN v. TEXAS Opinion of the Court MPP was implemented pursuant to express congressional authorization in the Immigration and Nationality Act (INA), which provides that “[i]n the case of an alien . . . who is arriving on land (whether or not at a designated port of ar- rival) 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 agency had “primarily used [§ 1225(b)(2)(C)] on an ad-hoc basis to return certain Mexican and Canadian nationals” ar- riving 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 signifcant funding shortfalls, however, DHS has never had “suffcient detention 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 fle an asylum application and/or disappear before an immigration judge can determine the merits of any claim.” 554 F. Supp. 3d, at 832. In January 2019, DHS began implementing MPP, initially in San Diego, California, then in El Paso, Texas, and Calex- ico, California, and then nationwide. By December 31, 2020, DHS had enrolled 68,039 aliens in the program. 1 The provision refers to the Attorney General, but the authority it con- fers has been transferred to the Secretary of Homeland Security. See Department of Homeland Security v. Thuraissigiam, 591 U. S. –––, –––, n. 3 (2020). Page Proof Pending Publication Cite as: 597 U. S. 785 (2022) 793 Opinion of the Court Following the change in Presidential administrations, how- ever, the Biden administration sought to terminate the pro- gram. On January 20, 2021, the Acting Secretary of Home- land Security wrote that “[e]ffective January 21, 2021, the Department will suspend new enrollments in [MPP] pending further review of the program. Aliens who are not already enrolled in MPP should be processed under other existing legal authorities.” Id., at 836. President Biden also issued Executive Order No. 14010, which directed the new Sec- retary of Homeland Security, Alejandro N. Mayorkas, to “promptly review and determine whether to terminate or modify the [MPP] program.” 86 Fed. Reg. 8269 (2021). On June 1, 2021, Secretary Mayorkas issued a memoran- dum offcially terminating MPP (the June 1 Memorandum). In that memorandum, the Secretary noted his determination “that MPP [d]oes not adequately or sustainably enhance bor- der management in such a way as to justify the program's extensive operational burdens and other shortfalls.” App. to Pet. for Cert. 351a. He also emphasized that, since its inception, MPP had “played an outsized role in [DHS's] en- gagement with the Government of Mexico,” given the “sig- nifcant attention that it draws away from other elements that necessarily must be more central to the bilateral rela- tionship.” Id., at 357a. For those and other reasons, the Secretary announced that he was “by this memorandum ter- minating the MPP program,” and “direct[ed] DHS personnel to take all appropriate actions to terminate MPP, including taking all steps necessary to rescind implementing guidance and other directives or policy guidance issued to implement the program.” Id., at 348a–349a. B On April 13, 2021, the States of Texas and Missouri (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 Jan- Page Proof Pending Publication 794 BIDEN v. TEXAS Opinion of the Court uary 20 suspension of new enrollments in MPP, but following the June 1 Memorandum, they amended their complaint to challenge the Secretary's June 1 rescission of the entire pro- gram. The amended complaint asserted that the June 1 Memorandum violated the INA and the Administrative Pro- cedure Act (APA), 5 U. S. C. § 701 et seq., and sought prelimi- nary and permanent injunctive relief, declaratory relief, and vacatur of the rescission pursuant to the APA. The District Court conducted a one-day bench trial and entered judgment for respondents. The court frst con- cluded that terminating MPP would violate the INA. It reasoned 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 pursuant to sec- tion 1225(b)(2)(C). 554 F. Supp. 3d, at 852. Because the Government was unable to meet its detention obligations under section 1225(b)(2)(A) due to resource constraints, the court concluded, “terminating MPP necessarily leads to the systemic violation of Section 1225 as aliens are released into the United States.” Ibid. Second, the District Court found that the agency failed to engage in reasoned decision- making 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 suffcient detention capacity to detain all aliens subject to mandatory detention under [section 1225] without releasing any aliens because of a lack of detention resources.” Ibid. (emphasis in original). The Government appealed and sought a stay of the injunc- tion, which the District Court and the Court of Appeals each Page Proof Pending Publication Cite as: 597 U. S. 785 (2022) 795 Opinion of the Court denied. The Government then applied to this Court for a stay. The Court denied the application, fnding that the Government “had failed to show a likelihood of success on the claim that the [June 1 Memorandum] was not arbitrary and capricious.” 594 U. S. ––– (2021). The Court did not address the District Court's interpretation of the INA. The parties proceeded to briefng in the Court of Appeals. While the Government's appeal was pending, however, Sec- retary Mayorkas “considered anew whether to maintain, ter- minate, or modify MPP in various ways.” App. to Pet. for Cert. 286a. On September 29, 2021, the Secretary publicly 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 ap- peal in abeyance pending the Secretary's formal decision, but the Court of Appeals denied the motion. On October 29, the Secretary released a four-page memo- randum that again announced the termination of MPP, along with a 39-page addendum explaining his reasons for doing so (the October 29 Memoranda). As the Secretary explained, this new assessment of MPP “examined considerations that the District Court determined were insuffciently addressed in the June 1 memo, including claims that MPP discouraged unlawful border crossings, decreased the fling of non- meritorious asylum claims, and facilitated more timely relief for asylum seekers, as well as predictions that termination of MPP would lead to a border surge, cause [DHS] to fail to comply with alleged detention obligations under the [INA], impose undue costs on states, and put a strain on U. S.- Mexico relations.” App. to Pet. for Cert. 259a–260a. The Secretary acknowledged what he called “the strongest argument in favor of retaining MPP: namely, the signifcant decrease in border encounters following the determination to implement MPP across the southern border.” Id., at 261a. But he nonetheless concluded that the program's “benefts do not justify the costs, particularly given the way Page Proof Pending Publication Page Proof Pending Publication 796 BIDEN v. TEXAS Opinion of the Court 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 to implement MPP have played a particularly outsized role in diplomatic engagements with Mexico, diverting attention from more productive efforts to fght transnational criminal and smuggling networks and address the root causes of mi- gration.” 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 implemen- tation and enforcement of MPP.” Id., at 264a. But he noted that “the termination of MPP” would be “implemented as soon as practicable after a fnal judicial decision to vacate” that injunction. Ibid. The Government then moved to va- cate the injunction on the ground that the October 29 Memo- randa had superseded the June 1 Memorandum, but the Court of Appeals denied the motion. The Court of Appeals instead affrmed the District Court's judgment in full. With respect to the INA question, the Court of Appeals agreed with the District Court's analysis of the relevant provisions. That is, the court explained, sec- tion 1225(b)(2)(A) “sets forth a general, plainly obligatory rule: detention for aliens seeking admission,” while section 1225(b)(2)(C) “authorizes contiguous-territory return 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 com- plaining 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 review- able `fnal agency action.' ” Id., at 951. The Court of Ap- peals distinguished “DHS's June 1 decision to terminate MPP,” which it claimed “had legal effect,” from the June 1 Cite as: 597 U. S. 785 (2022) 797 Opinion of the Court Memorandum, the October 29 Memoranda, and “any other subsequent memos,” which it held “simply explained DHS's decision.” Ibid. The Court of Appeals then criticized the Government for proceeding “without a hint of an intention to put the Termination Decision back on the chopping block and rethink things,” and for ultimately “just further defend[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, assert- ing that “DHS chose not to take a new agency action” but “instead 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. 543 (2022), section 1252(f)(1) “generally prohibits lower courts from entering injunctions that order federal offcials to take or to refrain from taking actions to enforce, imple- ment, or otherwise carry out the specifed statutory provi- sions.” Id., at 550. 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) Page Proof Pending Publication 798 BIDEN v. TEXAS Opinion of the Court deprives this Court of jurisdiction to reach the merits of an appeal, where the lower court entered a form of relief barred by that provision. See Steel Co. v. Citizens for Better Envi- ronment, 523 U. S. 83, 95 (1998) (“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 parties 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 specifc category of remedies: those that “enjoin or restrain the oper- ation 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. Cotton, 535 U. S. 625, 630 (2002). Section 1252(f)(1) bears no indication that lower courts lack power to hear any claim brought under sections 1221 through 1232. If Congress had wanted the provision to have that effect, it could have said so in words far simpler than those that it wrote. But Congress instead provided that lower courts would lack jurisdiction to “enjoin or restrain the operation of” the relevant provisions, and it included that language in a provision whose title—“Limit on injunctive relief”—makes clear the narrowness of its scope. Page Proof Pending Publication Cite as: 597 U. S. 785 (2022) 799 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 specifc 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 juris- diction 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 confrms 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 entitled “Matters not subject to judicial review” and provides that “no court shall have jurisdiction to review” several catego- ries of decisions, such as “any fnal order of removal against an alien who is removable by reason of having committed a criminal offense. . . .” (Emphasis added.) Congress could easily have added one more item to this list: any action taken pursuant to sections 1221 through 1232. Or it could have 2 Justice Barrett raises a host of additional questions regarding the “Supreme Court” parenthetical, post, at 838 (dissenting opinion), and she faults us for relying on this aspect of the provision without comprehen- sively “explain[ing] how it would work,” ibid. But we see no need to explore every aspect or consequence of the parenthetical in order to an- swer the narrow question of our jurisdiction over this case. In declining to resolve these additional complexities, we merely heed Justice Bar- rett's admonition to “tread . . . carefully.” Post, at 840. Page Proof Pending Publication 800 BIDEN v. TEXAS Opinion of the Court worded section 1252(f)(1) similarly to the immediately adja- cent 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 Attor- ney General to commence proceedings, adjudicate 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 sec- tions of the statute, and it entitled that provision 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 latter. Yet this Court proceeded to reach the merits of the suit, notwithstanding the District Court's apparent violation of section 1252(f)(1), by reasoning that “[w]hether the [District] [C]ourt had jurisdiction to enter such an injunction is irrele- vant because the District Court had jurisdiction to entertain the plaintiffs' request for declaratory relief.” Id., at ––– – ––– (Alito , J., joined by Roberts, C. J., and Kavanaugh, J.); see also Jennings v. Rodriguez, 583 U. S. 281, 355 (2018) (Breyer, J., joined by Ginsburg and Sotomayor, JJ., dis- senting) (concluding that “a court could order declaratory re- lief” notwithstanding section 1252(f)(1)). Our disposition in Preap is inconsistent with an interpretation of the limitation in section 1252(f)(1) that strips the lower courts of subject matter jurisdiction. 3 And previous statements from this 3 Justice Barrett notes that Preap involved consolidated cases, and that in one of the two cases the District Court granted declaratory as well as injunctive relief. Post, at 838–839, n. (dissenting opinion). That misses the point. The Preap District Court granted only injunctive relief, Page Proof Pending Publication Cite as: 597 U. S. 785 (2022) 801 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 548. 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, the [Secretary] may return the alien to that territory pending a proceeding under section 1229a.” Section 1225(b)(2)(C) presenting the exact circumstances we confront here, yet this Court exer- cised jurisdiction over that lawsuit and resolved it on the merits. 4 At our request, the parties briefed several additional questions regard- ing the operation of section 1252(f)(1), namely, whether its limitation on “jurisdiction or authority” is subject to forfeiture and whether that limita- tion extends to other specifc remedies, such as declaratory relief and relief under section 706 of the APA. We express no view on those questions. Page Proof Pending Publication 802 BIDEN v. TEXAS Opinion of the Court 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 Sudan, 590 U. S. –––, ––– (2020) (emphasis in original); see also, e. g., Weyerhaeuser Co. v. United States Fish and Wild- life Serv., 586 U. S. –––, ––– (2018); 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 return is a tool that the Sec- retary “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 obvi- ously 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 applicant for admission, if the examining immigration offcer 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 title.” Re- spondents 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 return authority in section 1225(b)(2)(C) be- comes mandatory when the Secretary violates that deten- tion mandate. The problem is that the statute does not say anything like that. The statute says “may.” And “may” does not just suggest discretion, it “clearly connotes” it. Opati, 590 U. S., at ––– (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 `shall.' ”). Congress's use of the word “may” is therefore inconsistent with re- spondents' proposed inference from the statutory structure. Page Proof Pending Publication Cite as: 597 U. S. 785 (2022) 803 Opinion of the Court If Congress had intended section 1225(b)(2)(C) to operate as a mandatory cure of any noncompliance with the Govern- ment's detention obligations, it would not have conveyed that intention through an unspoken inference in confict 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 Secretary “may return” certain aliens to Mexico, “unless the government fails to comply with its detention obliga- tions, 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.”). The principal dissent emphasizes that section 1225(b)(2)(A) requires detention of all aliens that fall within its terms. See, e. g., post, at 824 (Alito , J., dissenting) (“The language of 8 U. S. C. § 1225(b)(2)(A) is unequivocal.”). While the Government contests that proposition, we assume arguendo for purposes of this opinion that the dissent'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 actual text of the statute, Justice Alito's interpretation is practically self- refuting. He emphasizes that “ `[s]hall be detained' means `shall be detained,' ” post, at 825, and criticizes the Gov- ernment's “argument that `shall' means `may,' ” ibid . 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 823 (dissenting opinion). We need not and do not decide whether the detention require- ment in section 1225(b)(2)(A) is subject to principles of law enforcement discretion, as the Government argues, or whether the Government's cur- rent practices simply violate that provision. Page Proof Pending Publication 804 BIDEN v. TEXAS Opinion of the Court But the theory works both ways. Congress conferred contiguous-territory return authority in expressly discre- tionary terms. “ `[M]ay return the alien' means `may return the alien.' ” The desire to redress the Government's pur- ported violation of section 1225(b)(2)(A) does not justify transforming the nature of the authority conferred by sec- tion 1225(b)(2)(C). 6 The historical context in which the provision was adopted confrms the plain import of its text. See, e. g., Niz-Chavez v. Garland, 593 U. S. –––, ––– (2021) (textual analysis con- frmed by “a wider look at [the statute's] structure and his- tory”). 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 Immigration Act of 1903 added the “shall be detained” language that appears in sec- tion 1225(b)(2)(A). And section 1225(b)(2)(C) was enacted in the immediate aftermath of a Board of Immigration Appeals (BIA) decision that specifcally called into question the legal- ity 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 entry to await their exclu- sion proceedings in Canada or Mexico. The BIA noted the lack of “any evidence that this is a practice known to Con- 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 828–829 (Alito , J., dis- senting). We wholeheartedly endorse the conclusion that the dissent draws from these hypotheticals: that “the failure to make use of the discre- tionary option would not be seen as a valid excuse for non-compliance with the command that certain conduct `shall' be performed.” Post, at 829. 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. Page Proof Pending Publication Cite as: 597 U. S. 785 (2022) 805 Opinion of the Court gress” and “the absence of a supporting 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 ex- press authority (“may”) to engage in the very practice that the BIA had questioned. And INS acknowledged that clarification shortly thereafter, explaining 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 de- tained under section 1225(b)(2)(A). In addition to contradicting the statutory text and context, the novelty of respondents' interpretation bears mention. Since IIRIRA's enactment 26 years ago, every Presiden- tial administration has interpreted section 1225(b)(2)(C) as purely discretionary. Indeed, at the time of IIRIRA's enact- ment and in the decades since, congressional funding has con- sistently fallen well short of the amount needed to detain all land-arriving inadmissible aliens at the border, yet no admin- istration has ever used section 1225(b)(2)(C) to return all such aliens that it could not otherwise detain. And the foreign affairs consequences of mandating the ex- ercise of contiguous-territory return likewise confrm that the Court of Appeals erred. Article II of the Constitution authorizes the Executive to “engag[e] in direct diplomacy with foreign heads of state and their ministers.” Zivotofsky v. Kerry, 576 U. S. 1, 14 (2015). Accordingly, the Court has taken care to avoid “the danger of unwarranted judicial in- terference in the conduct of foreign policy,” and declined to “run interference in [the] delicate feld of international rela- tions” without “the affrmative intention of the Congress clearly expressed.” Kiobel v. Royal Dutch Petroleum Co., 569 U. S. 108, 115–116 (2013). That is no less true in the context of immigration law, where “[t]he dynamic nature of Page Proof Pending Publication 806 BIDEN v. TEXAS Opinion of the Court 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 signifcant burden upon the Ex- ecutive's ability to conduct diplomatic relations with Mexico. 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 cannot uni- laterally return these migrants to Mexico. In attempting to rescind MPP, the Secretary emphasized that “[e]fforts to implement MPP have played a particularly outsized role in diplomatic engagements with Mexico, diverting attention from more productive efforts to fght transnational criminal and smuggling networks and address the root causes of mi- gration.” 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 Executive 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 (emphasis deleted). That stark con- sequence confrms our conclusion that Congress did not in- tend 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 process applicants for admission under a third option: parole. See 8 U. S. C. § 1182(d)(5)(A). Every administration, including the Trump and Biden administrations, has utilized this authority to some extent. Importantly, the authority is not un - bounded: DHS may exercise its discretion to parole appli- cants “only on a case-by-case basis for urgent humanitarian reasons or signifcant public beneft.” Ibid. And under the APA, DHS's exercise of discretion within that statutory Page Proof Pending Publication Cite as: 597 U. S. 785 (2022) 807 Opinion of the Court 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' arguments regarding whether section 1225(b)(2)(A) must be read in light of traditional principles of law enforcement dis- cretion, and whether the Government is lawfully exercising 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 discre- tionary 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 separately reviewable `fnal agency action.' ” 20 F. 4th, at 951. To recap, the Secretary frst attempted to terminate MPP through the June 1 Memorandum. As the Court of Appeals correctly held, that constituted fnal 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 mat- ter] 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 fnding that the grounds for agency action are inadequate, “a court may remand for the agency to do one of Page Proof Pending Publication 808 BIDEN v. TEXAS Opinion of the Court two things.” Id., at –––. “First, the agency can offer `a fuller explanation of the agency's reasoning at the time of the agency action.' ” Ibid. (emphasis deleted). If it chooses this route, “the agency may elaborate” on its initial reasons for taking the action, “but may not provide new ones.” Id., at –––. Alternatively, “the agency can `deal with the prob- lem afresh' by taking new agency action.” Ibid. (quoting SEC v. Chenery Corp., 332 U. S. 194, 201 (1947) ( Chenery II)). “An agency taking this route is not limited to its prior reasons.” Regents, 591 U. S., at –––. 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 se- lected the second option from Regents: He accepted the Dis- trict 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 –––, in which the Secretary stated: “I am hereby terminating MPP. Effective immedi- ately, I hereby supersede and rescind the June 1 memoran- dum.” App. to Pet. for Cert. 263a–264a. And consistent with that approach, the October 29 Memoranda offered sev- eral “new reasons absent from” the June 1 Memorandum, Regents, 591 U. S., at –––, including an examination of the “considerations that the District Court determined were in- suffciently addressed in the June 1 memo,” App. to Pet. for Cert. 259a. The October 29 Memoranda were therefore fnal agency action for the same reasons that the June 1 Memorandum was fnal agency action. That is, both the June 1 Memoran- dum and the October 29 Memoranda, when they were issued, “mark[ed] the `consummation' of the agency's decisionmaking process” and resulted in “rights or obligations [being] deter- mined.” Bennett, 520 U. S., at 178. As the Court of Ap- peals explained, the June 1 Memorandum “bound DHS staff by forbidding them to continue the program in any way from Page Proof Pending Publication Cite as: 597 U. S. 785 (2022) 809 Opinion of the Court that moment on.” 20 F. 4th, at 948. That rationale also applies to the October 29 Memoranda, which were therefore fnal 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 applica- bility . . . designed to implement” that decision. 5 U. S. C. § 551(4); see 20 F. 4th, at 950–951 (“The States are challeng- ing the Termination Decision—not the June 1 Memoran- dum, the October 29 Memoranda, or any other memo.”). To the extent that the Court of Appeals understood itself to be reviewing an abstract decision apart from specifc agency action, as defned in the APA, that was error. It was not the case that the June 1 Memorandum and the October 29 Memoranda “simply explained DHS's decision,” while only 7 Justice Alito contends that the October 29 Memoranda were not fnal agency action because they did not obligate DHS employees to immedi- ately cease implementing MPP; instead, they required them to do so “as soon as practicable after a fnal judicial decision to vacate” the District Court's injunction. App. to Pet. for Cert. 264a. But as he acknowledges, the standard for fnal agency action is whether the action “result[ed] in a fnal determination of `rights or obligations.' ” Post, at 832 (quoting Ben- nett, 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 fnal determination of its employees' obligation to do so once such judicial authorization 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 fnal agency action. See National Assn. of Reversionary Property Owners v. Surface Transp. Bd., 158 F. 3d 135, 141 (CADC 1998) (describing the doctrine as an “exception to statutory limits on the time for seeking review of an agency decision” (alterations omitted)). Page Proof Pending Publication Page Proof Pending Publication 810 BIDEN v. TEXAS Opinion of the Court the decision itself “had legal effect.” Id., at 951. To the contrary, the June 1 Memorandum and the October 29 Memo- randa were themselves the operative agency actions, each of them an “agency statement . . . designed to implement, inter- pret, or prescribe law or policy.” 5 U. S. C. § 551(4). Second, and relatedly, respondents characterized the Octo- ber 29 Memoranda as post hoc rationalizations of the June 1 Memorandum under our decision in Regents. Brief for Re- spondents 40 (“[T]he [October 29] Memoranda are nothing more than improper, post hoc rationalizations for termi- nating MPP.”); see also 20 F. 4th, at 961 (questioning how the October 29 Memoranda “[could] be anything more than post hoc rationalizations of the Termination Decision”). But Regents involved the exact opposite situation from this one. There, as here, DHS had attempted to rescind a prior admin- istration's immigration policy, but a District Court found the rescission inadequately explained. Faced with the same two options outlined above, then-Secretary Nielsen elected the frst option rather than the second. That is, she chose to “rest on the [original] Memorandum while elaborating on [her] prior reasoning,” rather than “issue a new rescission bolstered by new reasons absent from the [original] Memo- randum.” 591 U. S., at –––. 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 ––– – –––. And because the then-Secretary's reasoning had “little relationship to that of her predecessor,” the Court characterized the new explanations as “impermissible post hoc rationalizations . . . not properly before us.” Id., at –––. The prohibition on post hoc rationalization applies only when the agency proceeds by the frst 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 –––, the bar on post hoc rationalization Cite as: 597 U. S. 785 (2022) 811 Opinion of the Court operates to ensure that the agency's supplemental explana- tion is anchored to “the grounds that the agency invoked when it took the action,” Michigan v. EPA, 576 U. S. 743, 758 (2015). By contrast, as noted above, the Secretary here chose the second option from Regents, and “ `deal[t] with the problem afresh' by taking new agency action.” 591 U. S., at –––. That second option can be more procedurally oner- ous than the frst—the agency “must comply with the proce- dural requirements for new agency action”—but the beneft is that the agency is “not limited to its prior reasons” in justifying its decision. Ibid. Indeed, the entire purpose of the October 29 Memoranda was for the Secretary to “issue a new rescission bolstered by new reasons absent from the [June 1] Memorandum,” ibid.—reasons that he hoped would answer the District Court's concerns from the frst go-round. Having returned to the drawing table and taken new action, therefore, the Secretary was not subject to the charge of post hoc rationalization. Third, respondents invoke our decision in Department of Commerce v. New York, 588 U. S. ––– (2019), to contend that DHS's failure to “hew[ ] to the administrative straight and narrow” deprives the October 29 Memoranda of the 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 eval- uating the agency's contemporaneous explanation in light of the existing administrative record.” Department of Com- merce, 588 U. S., at –––. Department of Commerce involved a “narrow exception to th[at] general rule” that applies where the challengers to the agency's action make a “strong showing of bad faith or improper behavior” on the part of the agency. Id. , at ––– (quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U. S. 402, 420 (1971)). We held that exception satisfed by an accumulation of “unusual circumstances” that demonstrated an “explanation for agency action that [was] incongruent with what the record Page Proof Pending Publication 812 BIDEN v. TEXAS Opinion of the Court reveal[ed] about the agency's priorities and decisionmaking process.” Department of Commerce , 588 U. S., at –––. The circumstances in this case do not come close to those in Department of Commerce . Nothing in this record sug- gests a “signifcant mismatch between the decision the Sec- retary made and the rationale he provided.” Id., at –––. Respondents direct us instead to the Government's litigation conduct. But the examples of misconduct to which respond- ents refer—such as a failure to timely complete the adminis- trative record, Brief for Respondents 42—have no bearing on the legal status of the October 29 Memoranda. And in any event, they fall well short of the “strong showing of bad faith or improper behavior,” Overton Park, 401 U. S., at 420, that we require before deviating from our normal rule that “[t]he grounds upon which an administrative order must be judged are those upon which the record discloses that its action was based,” SEC v. Chenery Corp., 318 U. S. 80, 87 (1943). The Court of Appeals leveled the related but more modest charge that the Secretary failed to proceed with a suffciently open mind. See, e. g., 20 F. 4th, at 955 (agency proceeded “without a hint of an intention to put the Termination Deci- sion back on the chopping block and rethink things”). But the agency's ex ante preference for terminating MPP—like any other feature of an administration's policy agenda— should not be held against the October 29 Memoranda. “It is hardly improper for an agency head to come into offce with policy preferences and ideas . . . and work with staff attorneys to substantiate the legal basis for a preferred pol- icy.” Department of Commerce , 588 U. S., at –––; 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 established 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 Page Proof Pending Publication Cite as: 597 U. S. 785 (2022) 813 Opinion of the Court 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 fde reconsideration. More importantly, this Court has previously rejected criti- cisms of agency closemindedness based on an identity be- tween proposed and fnal agency action. See Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, 591 U. S. –––, ––– (2020) (“declin[ing] to evaluate the [agency's] fnal rules under [an] open-mindedness test” where interim and fnal rules were “virtually identical” but proce- dural requirements were otherwise satisfed). Similar prin- ciples refute the Court of Appeals' criticism of the October 29 Memoranda for their failure to “alter the Termination De- cision in any way.” 20 F. 4th, at 946. It is black-letter law that an agency that takes superseding action on remand is entitled to “reexamine[ ] the problem, recast 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 dissenting in part) (“Courts often con- sider an agency's . . . additional explanations made . . . on remand from a court, even if the agency's bottom-line deci- sion 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 Memo- randa's status as fnal 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 Page Proof Pending Publication 814 BIDEN v. TEXAS Kavanaugh, J., concurring outside its control, as a practical matter left the Government no choice but to appeal. And the agency reasonably chose to accede to the District Court's APA analysis of the June 1 Memorandum and seek to 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 October 29 Memoranda did constitute fnal agency action. We there- fore reverse the judgment of the Court of Appeals and re- mand the case for further proceedings consistent with this opinion. On remand, the District Court should consider in the frst 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. 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 specifc legal questions presented here. I note, moreover, that six Members of the Court agree with the Court's merits conclu- sion. See post, at 835 (Barrett, J., dissenting). I write separately to briefy 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 suff- 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 “signifcant public beneft.” 8 U. S. C. § 1182(d)(5)(A). Parole entails releasing individu- Page Proof Pending Publication Cite as: 597 U. S. 785 (2022) 815 Kavanaugh, J., concurring als on a case-by-case basis into the United States subject to “reasonable assurances” that they “will appear at all hear- ings.” 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, including the admin- istrations of Presidents Clinton, Bush, Obama, Trump, and Biden. See Tr. of Oral Arg. 4, 49–54. Option two: DHS may choose to return noncitizens to Mex- ico. 8 U. S. C. § 1225(b)(2)(C). Consistent with that statu- tory authority, the prior Administration chose to return a relatively small group of noncitizens to Mexico. In general, when there is insuffcient 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 rela- tively small group of noncitizens. Because the immigration statutes afford substantial discretion to the Executive, dif- ferent Presidents may exercise that discretion differently. That is Administrative Law 101. See Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U. S. 29, 59 (1983) (Rehnquist, J., concurring in part and dissenting in part). To be sure, the Administrative Procedure Act and this Court's decision in State Farm require that an executive agency's exercise of discretion be reasonable and reasonably explained. See id., at 43 (majority opinion); see also FCC v. Prometheus Radio Project, 592 U. S. –––, ––– – –––, ––– (2021); FCC v. Fox Television Stations, Inc., 556 U. S. 502, 514−515 (2009); 5 U. S. C. § 706. For example, when there is insuffcient 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 public benefit.” 8 U. S. C. Page Proof Pending Publication 816 BIDEN v. TEXAS Alito, J., dissenting § 1182(d)(5)(A); see, e. g., State Farm, 463 U. S., at 46–57. Review under that State Farm standard is deferential but not toothless. Id., at 56. The question of whether DHS's October 29 decision satis- fes 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 806– 807, 814; Tr. of Oral Arg. 67−68. To be clear, when there is insuffcient 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- policy judgment. Cf., e. g., Trump v. Hawaii, 585 U. S. –––, ––– – ––– (2018). Nothing in the relevant immigration statutes at issue here suggests that Congress wanted the Federal Judiciary to improperly second-guess the President's Article II judgment with respect to American foreign policy and foreign relations. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 635−637 (1952) (Jackson, J., concur- ring); see also Dames & Moore v. Regan, 453 U. S. 654, 678– 679, 686–688 (1981). One fnal note: The larger policy story behind this case is the multi-decade inability of the political branches to provide DHS with suffcient facilities to detain noncitizens who seek to enter the United States pending their immigration proceed- ings. But this Court has authority to address only the legal issues before us. We do not have authority to end the legisla- tive stalemate or to resolve the underlying policy problems. With those additional comments, I join the Court's opinion in full. Justice Alito, with whom Justice Thomas and Justice Gorsuch join, dissenting. In fscal year 2021, the Border Patrol reported more than 1.7 million encounters with aliens along the Mexican Page Proof Pending Publication Cite as: 597 U. S. 785 (2022) 817 Alito, J., dissenting border.1 When it appears that one of these aliens is not ad- missible, may the Government simply release the alien in this country and hope that the alien will show up for the hearing at which his or her entitlement to remain will be decided? Congress has provided a clear answer to that question, and the answer is no. By law, if an alien is “not clearly and beyond a doubt entitled to be admitted,” the alien “shall be detained for a [removal] proceeding.” 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. Rodriguez, 583 U. S. 281, 297 (2018). Congress offered the Executive two—and only two—alter- natives to detention. First, if an alien is “arriving on land” from “a foreign territory contiguous to the United States,” the Department of Homeland Security (DHS) “may return the alien to that territory pending a [removal] proceeding.” § 1225(b)(2)(C). Second, DHS may release individual aliens on “parole,” but “only on a case-by-case basis for urgent hu- manitarian 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 alterna- tive to return inadmissible aliens to Mexico while they await proceedings in this country, DHS has concluded that it may forgo that option altogether and instead simply release into 1 U. S. Customs and Border Protection, Southwest Land Border Encounters, FY Southwest Land Border Encounters by Month (chart) (May 3, 2022), https://www.cbp.gov/newsroom/stats/southwest-land-border- encounters (showing 1,734,686 total encounters in fscal year 2021). Page Proof Pending Publication 818 BIDEN v. TEXAS Alito, J., dissenting 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 diffcult jurisdictional ques- tions on which—due to the Government's litigation tactics— we have received only hurried briefng and no argument. Second, when the majority reaches the merits, it contrives a way to overlook the clear statutory violations that result from DHS's decision to terminate the use of its contiguous- territory return authority. Finally, the majority unjustif- ably faults the Court of Appeals for rejecting the Govern- ment'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 existing detention facilities could not house all the people who were attempting to enter unlawfully, many “illegal aliens with meritless asylum claims were being released into the United States,” and many, once released, simply “ `disap- peared.' ” 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 territory 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- 2 That policy was almost immediately enjoined by a Federal District Court. Innovation Law Lab v. Nielsen, 366 F. Supp. 3d 1110 (ND Cal. 2019). This Court stayed that injunction. Wolf v. Innovation Law Lab , 589 U. S. ––– (2020). Page Proof Pending Publication Page Proof Pending Publication Cite as: 597 U. S. 785 (2022) 819 Alito, J., dissenting 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 memorandum in which it determined that MPP was “an indispensable tool in addressing the ongoing crisis at the southern border.” App. 189 (Department of Homeland Security: Assessment of the Migrant Protection Protocols (Oct. 28, 2019)). It con- cluded that MPP directly reduced the number of aliens un- lawfully released into the United States and deterred others from attempting to cross the border unlawfully in the frst place. 554 F. Supp. 3d, at 833. DHS found that total border encounters decreased by 64 percent after MPP was imple- mented. App. 189. With MPP in place, aliens who lacked meritorious claims could no longer count on “a free ticket into the United States,” and as a result, many “voluntarily return[ed] home.” Id., at 192. MPP also helped DHS proc- ess meritorious asylum claims “within months,” rather than leaving asylum applicants “in limbo for years.” Id., at 190. Hours after his inauguration on January 20, 2021, Presi- dent 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 frst suspended, to about “173,000 in April 2021.” 554 F. Supp. 3d, at 837. Two States, Texas and Missouri, brought suit under the Administrative Procedure Act (APA) in April 2021, alleging that suspending MPP was arbitrary and capricious and vio- lated the Immigration and Nationality Act (INA). The Dis- trict Court ordered the Government to fle the administra- tive record for the January suspension, and on May 31, 2021, the Government fled a three-line suspension memorandum as the entire administrative record. See id., at 856, n. 16. The next day, in a 7-page memo issued by the Secretary, DHS terminated the already-suspended program. Page Proof Pending Publication 820 BIDEN v. TEXAS Alito, J., dissenting 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 Govern- ment then sought a stay in this Court, but we denied that application. 594 U. S. ––– (2021). On September 29, 2021, while briefng in the Court of Ap- peals was underway, DHS announced that it intended to issue a new memorandum terminating MPP, and the Govern- ment asked the Court of Appeals to hold its appeal in abey- ance 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 deci- sion 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 affrmed 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 Cite as: 597 U. S. 785 (2022) 821 Alito, J., dissenting authority to enjoin or restrain the operation of” the relevant 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. 543 (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 briefng or argument. The Government admits that “this Court could in theory va- cate the judgment below without reaching the merits,” Supp. Brief for Petitioners 23, but the majority chooses to de- cide far more than is necessary or advisable under the circumstances. As Justice Barrett explains, the interpretation of § 1252(f)(1) presents diffcult questions that the parties should have addressed in the briefs they fled 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” specifed 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 apply to class-wide declaratory relief, and it analogized § 1252(f)(1) to Page Proof Pending Publication Page Proof Pending Publication 822 BIDEN v. TEXAS Alito, J., dissenting the Tax Injunction Act, 28 U. S. C. § 1341, and cited our deci- sion 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 im- portant question the resolution of which could have effects extending far beyond this particular dispute, and at oral ar- gument the Solicitor General took the far-reaching position that § 1252(f)(1) does indeed bar APA review. See Tr. of Oral Arg. 13–14. But none of the papers fled by the Gov- ernment 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 impor- tant APA question without any briefng. 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 anticipated, those briefs raised new questions that it would have been useful to explore at argument had that been held. But de- termined 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 Cite as: 597 U. S. 785 (2022) 823 Alito, J., dissenting for the fling 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 Gonza- lez. 3 Nothing more is either necessary or appropriate under the circumstances. III The Court is not only wrong to reach the merits of this case, but its analysis of the merits is seriously fawed. First, the majority errs in holding that the INA does not really mean what it says when it commands that the aliens in ques- tion “shall” be detained pending removal or asylum proceed- ings unless they are either returned to Mexico or paroled on a case-by-case basis. According to the majority, it is fne for DHS simply to release these aliens en masse and allow them to disappear. Second, the majority improperly faults the Court of Appeals for refusing to allow the Government to derail the appellate process by a last-minute maneuver de- signed 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) paroled on a case-by-case basis. Congress has provided no fourth option, but the majority now creates one. According to the majority, an alien who cannot be detained due to a shortage 3 Alternatively, the Court could have put the case over to next Term, received full briefng, and heard argument in October. Page Proof Pending Publication 824 BIDEN v. TEXAS Alito, J., dissenting 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 offcer determines . . . is not clearly and beyond a doubt entitled to be admitted . . . 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. Rodriguez, O. T. 2017, No. 15–1204, p. 15 (“Aliens seeking admission who are not `clearly and beyond a doubt entitled to be admitted' are statutorily prohibited from physically entering the United States and must be detained during removal proceedings . . . , unless the Secretary exercises his discretion to release them on parole”); id., at 17 (“Unlike the word `may,' which implies discretion, the word `shall' usually connotes a re- quirement. And here, the repeated `shall be detained' 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 297 (“Read most naturally, §§ 1225(b)(1) and (b)(2) thus mandate detention of applicants for admission until certain proceed- ings have concluded”). But now, in an about-face, the Gov- ernment argues that “shall be detained” actually means 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 demonstrates the force of the rule: Detention for all others is mandatory. Page Proof Pending Publication Cite as: 597 U. S. 785 (2022) 825 Alito, J., dissenting “may be detained.” See Brief for Petitioners 29 (“[T]he Court will not construe a provision stating that law enforce- ment `shall' take some action as a `true mandate' absent `some stronger indication from the . . . Legislature' ”). The Government was correct in Jennings and is wrong here. “[S]hall be detained” means “shall be detained.” The Government points out that it lacks the facilities to de- tain 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 fnding 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 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 re- leased. Id., at 79. Thus, the Government is failing to meet the statutory detention mandate, not only because of limita- tions on its detention capacity but also because it refuses 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 parol- ing aliens “on a case-by-case basis for urgent humanitarian reasons or signifcant public beneft,” as permitted under § 1182(d)(5)(A). But the number of aliens paroled each month under that provision—more than 27,000 in April of this year 5—gives rise to a strong inference that the Govern- 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 fgure combines 88,452 [Customs and Border Patrol] grants of parole . . . and 27,654 individuals . . . `[p]aroled into the U. S. on a case-by-case basis pur- suant to 8 U. S. C. § 1182(d)(5)' ”); see also Defendants' Monthly Report for March 2022, ECF Doc. 136, p. 3. Page Proof Pending Publication 826 BIDEN v. TEXAS Alito, J., dissenting 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 determina- tions 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 argu- ment, 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 inconsistent with the ordinary meaning of “case-by-case” review, and as the Court of Appeals pointed out, the circumstances under which § 1182(d)(5)(B)) was adopted bol- ster that conclusion. See 20 F. 4th, at 947 (After “the execu- tive 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 using 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 807, but the Government cites that authority as a reason why it does not need to use its contiguous-territory return au- thority. Brief for Petitioners 6, 33–36. Moreover, the Dis- trict Court's judgment relied on factual fndings regarding 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 Page Proof Pending Publication Cite as: 597 U. S. 785 (2022) 827 Alito, J., dissenting lawful option: continue to return inadmissible aliens to Mex- ico. See § 1225(b)(2)(C). 2 The majority's chief defense of the Government's rejection of MPP is based on a blinkered method of statutory interpre- tation that we have frmly rejected. The majority largely ignores the mandatory detention requirement imposed by § 1225(b)(2)(A) and, instead, reads the contiguous-return pro- vision, § 1225(b)(2)(C), in isolation. That provision 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 use of that authority is not required. That reading ignores “the statutory structure” of the INA, ante, at 802, and wrongly “confne[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 “coher- ent regulatory 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); 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 cat- egory of inadmissible aliens. The Government must either: (1) detain them, (2) return them to a contiguous foreign na- tion, or (3) parole them into the United States on an individ- ualized, case-by-case basis. These options operate in a hydraulic relationship: When it is not possible for the Govern- ment to comply with the statutory mandate to detain inad- missible aliens pending further proceedings, it must resort to one or both of the other two options in order to comply with the detention requirement to the greatest extent possible. Page Proof Pending Publication 828 BIDEN v. TEXAS Alito, J., dissenting There is nothing strange about this interpretation of how the relevant provisions of the INA work together. Consider this example. Suppose a state law provides that every school district “shall” provide a free public education to every student from kindergarten through the 12th grade and that another statute says that a district “may” arrange for its students to attend high school in an adjacent district. A small district refuses to operate its own high school because it lacks the necessary funds, and this district also declines to arrange for its students to attend a school in an adjacent district because the law says only that a district “may” take that course of action. Refusing to exercise this discretion- ary 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 building “shall” have at least two means of egress from upper foors, and suppose that another provision says that such a building “may” have an external fre escape. The owner of such a building refuses to construct a second internal stairway be- cause the cost would be prohibitive and also declines to in- stall a fre escape because the law says that option is discre- tionary. Would the owner's non-compliance be permitted? Here is one more example. A State that operates its own motor vehicle inspection facilities has a law that says that every vehicle “shall” be inspected every year. The law also says that motorists “may” have their vehicles inspected at a licensed private garage. A motorist fails to have his car inspected because he must work during the time when the state facility is open and would be fred 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 Page Proof Pending Publication Cite as: 597 U. S. 785 (2022) 829 Alito, J., dissenting 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 command that certain conduct “shall” be performed, and it is also hard to see the difference between those examples and the situa- tion here. 3 The majority's main reason for rejecting the argument just described is that the contiguous-return provision does not say expressly that it was meant to “operate as a mandatory cure of any noncompliance with the Government's detention obligations.” Ante, at 803. 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 under which the contiguous-return provision was adopted suggest that it was intended to serve only a “humble role.” Ante, at 805. Those circumstances cannot change what the relevant provisions say or the way in which they logically work together. See Exxon Mobil Corp. v. Allapattah Serv- ices, Inc., 545 U. S. 546, 568 (2005) (“Extrinsic materials have a role in statutory interpretation only to the extent they shed a reliable light on the enacting Legislature's under- standing 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 805–806 (majority opinion); ante, at 816 (opinion of Kavanaugh, J.). But enforcement of immigration laws often has foreign rela- Page Proof Pending Publication Page Proof Pending Publication 830 BIDEN v. TEXAS Alito, J., dissenting tions 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 Con- gress.” Galvan v. Press, 347 U. S. 522, 531 (1954) (emphasis added). The President has vital power in the feld 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 pow- ers 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 inadmissi- ble aliens encountered at the border. Finally, the majority emphasizes the fact that prior admin- istrations 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 Execu- tive can acquire authority forbidden by law through a proc- ess akin to adverse possession. B Not only does the majority fail to heed the clear language of the INA, but it gratuitously faults the Court of Appeals for what appears to be a fairly modest and correct conclusion: that the October 29 Memoranda purporting to re-terminate MPP did not ultimately affect the merits of the appeal of the judgment that was before that court. The Government issued its October 29 Memoranda after briefng in the Court of Appeals had been completed and only days before the ap- peal was set to be argued. Based on those memoranda, the Government asked the Court of Appeals to vacate the judg- ment below, but it did not provide a full administrative rec- Page Proof Pending Publication Cite as: 597 U. S. 785 (2022) 831 Alito, J., dissenting ord or give the District Court an opportunity to review the purported new decision in the frst instance by fling a Rule 60(b) motion.6 The majority now says that the Court of Ap- peals erred by failing to treat the October 29 Memoranda as a new, fnal agency action, but the majority does not say what applying that label would have required the Fifth Cir- cuit to do differently. As I see it, the Government's litigation tactic—fling the October 29 Memoranda with a suggestion of mootness but without seeking to dismiss its appeal—could have triggered 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 unspecifed time; (3) evalu- ated the October 29 Memoranda as fnal agency action in the frst instance under the APA; or (4) concluded that the Octo- ber 29 Memoranda did not affect the appeal, which chal- lenged the June termination. The Court of Appeals picked the fourth option, and taking each option in turn, I will ex- plain why that was the response best suited to avoid derail- ing the ordinary appellate process. First, the October 29 Memoranda did not moot the appeal. A case becomes moot only if it is impossible for the court to “ `grant any effectual relief.' ” Chafn v. Chafn, 568 U. S. 165, 172 (2013). Under this high standard, the Fifth Circuit was correct that the case was not moot. Although the Gov- ernment claimed that the appeal was moot, it asked the Court of Appeals for relief, namely, vacatur of District Court's injunction. It was compelled to take that position because the October 29 Memoranda, by their own terms, did not take effect as long as that injunction remained in force. See 20 F. 4th, at 957. And without an appellate decision holding that the INA allows the Government to release aliens who could be returned to Mexico, the issuance of a new 6 See generally 11A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 2961 (3d ed. 2013). Page Proof Pending Publication 832 BIDEN v. TEXAS Alito, J., dissenting administrative order terminating MPP could not provide a ground for vacating the injunction. It is telling that the Government's briefng in this Court never suggests that the case was moot at the time of the Fifth Circuit's decision or that the case is now moot. Second, the Court of Appeals did not err by declining to hold the appeal in abeyance. The Government originally asked the Court of Appeals to hold the appeal while it com- pleted the process of issuing a new termination decision, but by the time of oral argument in that court, the Government claimed that such a decision had been issued. And the Gov- ernment did not fle a motion in the District Court to vacate its judgment under Federal Rule of Civil Procedure 60(b). The Government had sought to expedite proceedings at every stage, including by seeking emergency relief in the Fifth Circuit and this Court, and under these circumstances, it was eminently reasonable for the Court of Appeals to con- clude that additional delay would not have served the inter- ests 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 fnal agency action that could be reviewed in the frst in- stance in the Court of Appeals under the APA. Like this Court, the courts of appeal are courts of “ `review, and not frst view.' ” City of Austin v. Reagan Nat. Advertising of Austin, LLC , 596 U. S. 61, 76 (2022) (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 memo- randa actually “mark[ed] the consummation of the agency's decisionmaking process,” Bennett v. Spear, 520 U. S. 154, 178 (1997) (internal quotation marks omitted). Moreover, the October 29 Memoranda did not purport to result in a fnal determination of “ `rights or obligations.' ” Ibid. As DHS acknowledged, “the termination of MPP” could not “be im- Cite as: 597 U. S. 785 (2022) 833 Alito, J., dissenting plemented” until there was “a fnal judicial decision to vacate the . . . injunction.” App. to Pet. for Cert. 264a, 270a. And until that was accomplished, the memoranda did not impose on DHS offcers or employees any “ `obligatio[n]' ” to cease implementation of MPP. Bennett, 520 U. S., at 178. On this basis, the Fifth Circuit rightly understood that the October 29 Memoranda could have no legal effect while DHS was bound by an injunction to implement MPP in good faith and that this injunction would remain in force unless the Govern- ment's challenge to the June termination was decided in its favor. 7 Even if the Fifth Circuit had somehow concluded that the October 29 Memoranda constituted fnal 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 7 The majority concludes that the October 29 Memoranda had legal con- sequences because they represented DHS's “fnal determination of its em- ployees' 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 809, 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 fnality.” Army Corps of Engineers v. Hawkes Co., 578 U. S. 590, 599 (2016) (quoting Abbott Laboratories v. Gardner, 387 U. S. 136, 149 (1967)). “To determine when an agency action is fnal, we have looked to, among other things, whether its impact `is suffciently 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 Memo- randa had no direct or immediate effect on the day-to-day business of DHS employees. To conclude that such future agency intentions may never- theless meet the formal defnition of fnal agency action may result in many agencies facing judicial scrutiny over interim rules, guidance docu- ments, letters, and informal opinions that may not bind anyone now or even later. Page Proof Pending Publication 834 BIDEN v. TEXAS Alito, J., dissenting 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 fnd fault with pro- ceeding in that fashion, the majority seems to assume that an administrative agency may obviate a district court decision setting aside agency action under § 706 of the APA by purs- ing the following course of conduct: frst, appeal the district court decision; second, take a purportedly “new” action that achieves the same result as the one previously set aside; and third, while declining to seek vacatur of the earlier judgment in the district court, ask the court of appeals to vacate that judgment without reviewing its correctness or the lawful- ness 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 affrm the Fifth Circuit if we reached the merits, I agree with the majority that the District Court on remand should consider in the frst 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 viola- tions of the statute's clear detention mandate; whether the deterrent effect that DHS found MPP produced in reducing dangerous attempted illegal border crossings, as well as MPP's reduction of unmeritorious asylum claims, is ade- quately 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 case-by-case, as the statute prescribes. Page Proof Pending Publication Cite as: 597 U. S. 785 (2022) 835 Barrett, J., dissenting Justice Barrett, with whom Justice Thomas, Justice Alito, and Justice Gorsuch join as to all but the frst 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 repudi- ated their reasoning in Garland v. Aleman Gonzalez, 596 U. S. 543 (2022). Because we are a court of review and not frst 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 enjoin or restrain the operation of” specifed immigration provi- sions, except as applied to “an individual alien against whom proceedings under [those provisions] have been initiated.” Some lower courts have narrowly interpreted this provision, holding that it does not bar relief that a plaintiff frames as “requir[ing]” (rather than preventing) the Government's en- forcement 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) deprives lower courts of “ju- risdiction to entertain” requests for “injunctions that order federal offcials to take or to refrain from taking actions to enforce, implement, or otherwise carry out the specifed stat- Page Proof Pending Publication 836 BIDEN v. TEXAS Barrett, J., dissenting utory provisions” (subject to an exception, indisputably inap- plicable to this case, for a suit by an individual noncitizen in proceedings under those provisions). 596 U. S., at 550, 554. 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 ju- risdiction. 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 confdent enough to pro- ceed based on short, barely adversarial supplemental briefs. (The United States' original brief devoted only a conclusory footnote to the jurisdictional question, and Texas and Mis- souri did not respond.) And these supplemental briefs are particularly unhelpful because, having been submitted prior to our decision in Aleman Gonzalez, they could not address that decision's signifcance for this case. In fact, they de- voted a considerable portion of their allotted length to the issue that Aleman Gonzalez subsequently resolved. This would all matter less if the jurisdictional question were easy or unimportant—but it is neither. The Court's opinion papers over diffcult issues, as I will discuss below, and its jurisdictional holding is likely to affect many cases. See, e. g., Texas v. Biden, 589 F. Supp. 3d 595, 616–617 (ND Tex., 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); Defend- ants' Opposition to Plaintiffs' Motion for Temporary Re- straining 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 Gov- ernment's removal discretion in litigation challenging termi- nation of Title 42 order). We should not short circuit the ordinary process. Page Proof Pending Publication Cite as: 597 U. S. 785 (2022) 837 Barrett, J., dissenting 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 798. 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 juris- diction and remedies, because a court's inability to order ef- fective relief deprives it of jurisdiction to decide the merits of a question otherwise within its competence. See, e. g., California v. Texas, 593 U. S. –––, ––– (2021) (redressability “consider[s] the relationship between `the judicial relief re- quested' and the `injury' suffered”); Los Angeles v. Lyons, 461 U. S. 95, 105–107 (1983) (failure to allege suffcient likeli- hood of future injury deprives a federal court of Article III “jurisdiction to entertain [the count] of the complaint” seek- ing injunctive relief). So it seems to me quite possible that § 1252(f)(1) with- draws subject-matter jurisdiction over cases seeking certain remedies. Indeed, while the Government has a theory for why the Court can reach the merits in this case, it character- izes § 1252(f)(1) as imposing “jurisdictional limitations” 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) Page Proof Pending Publication 838 BIDEN v. TEXAS Barrett, J., dissenting 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 authority as mutu- ally 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 signifcant weight: § 1252(f)(1)'s parenthetical ex- empting “the Supreme Court” from its general bar on “juris- diction or authority.” The parties hardly discuss this paren- thetical, which does not appear to have an analogue 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 specifc carveout for Su- preme Court injunctive relief nugatory.” Ante, at 799. While this interpretation has some surface appeal, the 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 injunc- tion) 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 perhaps the *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 Page Proof Pending Publication Page Proof Pending Publication Cite as: 597 U. S. 785 (2022) 839 Barrett, J., dissenting 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 diffcult 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 801, 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 defning feature of nonjurisdictional rules. See, e. g., Hamer v. Neighborhood Housing Servs. of Chicago , 583 U. S. 17, 19–20 (2017). It reserves the question whether § 1252(f)(1) bars declaratory relief, an issue on which there are conficting views. Com- pare 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 posi- tion on whether § 1252(f)(1) prevents a lower court from va- cating or setting aside an agency action under the Adminis- trative Procedure Act. See 5 U. S. C. § 706(2). Not that I fault the Court for holding back. Quite the contrary: The questions surrounding § 1252(f)(1) are complex and deserve more attention than we can give them in this posture. As a fnal touch, the Court asserts that our precedent has already charted this course. Ante, at 800–801. But 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 800. But the issue is more complicated than the Court lets on. Preap involved consolidated cases. In the frst, 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] de- claratory ruling,” 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. 840 BIDEN v. TEXAS Barrett, J., dissenting Court cannot muster much on that front. It cites a passing statement 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 dis- cussion 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), and a dissent, see Jennings v. Rodriguez, 583 U. S 281, 355 (2018) (opinion of Breyer, J.). None provides a clear roadmap for this case. * * * Given all this, I would tread more carefully. We should let the lower courts be the frst to address the substantial antecedent questions that § 1252(f)(1) presents in light of our hot-off-the-presses decision in Aleman Gonzalez. I respect- fully dissent. Page Proof Pending Publication Page Proof Pending Publication Reporter’s Note The attached opinion has been revised to refect the usual publication and citation style of the United States Reports. The revised pagination makes available the offcial United States Reports citation in advance of publication. The syllabus has been prepared by the Reporter of Decisions for the convenience of the reader and constitutes no part of the opinion of the Court. A list of counsel who argued or fled briefs in this case, and who were members of the bar of this Court at the time this case was argued, has been inserted following the syllabus. Other revisions may include adjustments to formatting, captions, citation form, and any errant punctuation. The following additional edits were made: p. 805, line 9: “to the” is replaced with “to [the]” p. 808, line 4 from bottom: “and obligations” is replaced with “or obligations” p. 829, line 11 from bottom: “that” is deleted
Retrieval chunks
-
#1
PRELIMINARY PRINT Volume 597 U. S. Part 2 Pages 785–840 OFFICIAL REPORTS OF THE SUPREME COURT June 30, 2022 REBECCA A. WOMELDORF reporter of decisions Page Proof Pending Publication NOTICE: This preliminary print is subject to formal revision before the bound volume is published. Users are requested to noti…
-
#2
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. The District Court vacated the June 1 Memorandum and remanded to DHS. It also imposed a nationwide injunction ord…
-
#3
prives courts of the power to issue a specifc 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 co…
-
#4
fict with the unambiguous, express term “may.” The contiguous- territory return authority in section 1225(b)(2)(C) is discretionary—and remains discretionary notwithstanding any violation of section 1225(b)(2)(A). The historical context in which section 1225(b)(2)(C) was adopted con- frms the plain import of its …
-
#5
nett 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 specifc agency actions contained in …
-
#6
ant Attorney General Boynton, Deputy Solicitor General Gannon, Michael R. Huston, Austin L. Raynor, Erez Reu- veni, and Brian Ward. Judd E. Stone II, Solicitor General of Texas, argued the cause for respondents. With him on the brief were Ken Paxton, Attorney General, Brent Webster, First Assistant Attorney Gene…
-
#7
Cities et al. by Daniel R. Suvor, Kevin Morrow, Leslie J. Girard, Diana P . Cortes, Christopher J. Caso, Kristin M. Bronson, Lyndsey M. Olson, William C. Fosbre, Arturo G. Michel, and Michael Feuer; and for 61 Immi- gration Advocacy and Legal Service Organizations by Karen C. Tumlin, Esther H. Sung, Jane Petersen …
-
#8
the United States. The District Court also held that the attempted rescission of the program was inadequately ex- plained in violation of the Administrative Procedure Act. While its appeal was pending, the Government took new ac- tion to terminate the policy with a more detailed explana- tion. But the Court of Ap…
-
#9
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 signifcant funding shortfalls, however, DHS has never had “suffcient detention capacity to maintain in custody every single person de- scribed in section 1225.” …
-
#10
gagement with the Government of Mexico,” given the “sig- nifcant attention that it draws away from other elements that necessarily must be more central to the bilateral rela- tionship.” Id., at 357a. For those and other reasons, the Secretary announced that he was “by this memorandum ter- minating the MPP program…
-
#11
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 suffcient detention capacity to detain all aliens subject to mandatory detention under [section 1225] wi…
-
#12
decrease in border encounters following the determination to implement MPP across the southern border.” Id., at 261a. But he nonetheless concluded that the program's “benefts do not justify the costs, particularly given the way Page Proof Pending Publication Page Proof Pending Publication 796 BIDEN v. TEXAS Opi…
-
#13
Memorandum, the October 29 Memoranda, and “any other subsequent memos,” which it held “simply explained DHS's decision.” Ibid. The Court of Appeals then criticized the Government for proceeding “without a hint of an intention to put the Termination Decision back on the chopping block and rethink things,” and for …
-
#14
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 Consti…
-
#15
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 juris- diction un…
-
#16
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 latter. Yet thi…
-
#17
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 548. But that limitation poses no obstacle to jurisdiction in this Court. 4 III We now turn to th…
-
#18
for a proceeding under section 1229a of this title.” Re- spondents 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 return authority in section 1225(b)(2)(C) be- comes mandatory when the …
-
#19
refuting. He emphasizes that “ `[s]hall be detained' means `shall be detained,' ” post, at 825, and criticizes the Gov- ernment's “argument that `shall' means `may,' ” ibid . 5 For this reason, Justice Alito misunderstands our analysis in insist- ing that our opinion authorizes the Government to release aliens sub…
-
#20
alternative authorized by that statute. Post, at 828–829 (Alito , J., dis- senting). We wholeheartedly endorse the conclusion that the dissent draws from these hypotheticals: that “the failure to make use of the discre- tionary option would not be seen as a valid excuse for non-compliance with the command that cer…
-
#21
terference in the conduct of foreign policy,” and declined to “run interference in [the] delicate feld of international rela- tions” without “the affrmative intention of the Congress clearly expressed.” Kiobel v. Royal Dutch Petroleum Co., 569 U. S. 108, 115–116 (2013). That is no less true in the context of immi…
-
#22
APA, DHS's exercise of discretion within that statutory Page Proof Pending Publication Cite as: 597 U. S. 785 (2022) 807 Opinion of the Court 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). Bu…
-
#23
at –––. Alternatively, “the agency can `deal with the prob- lem afresh' by taking new agency action.” Ibid. (quoting SEC v. Chenery Corp., 332 U. S. 194, 201 (1947) ( Chenery II)). “An agency taking this route is not limited to its prior reasons.” Regents, 591 U. S., at –––. Here, perhaps in light of this Court's…
-
#24
dum, the October 29 Memoranda, or any other memo.”). To the extent that the Court of Appeals understood itself to be reviewing an abstract decision apart from specifc agency action, as defned in the APA, that was error. It was not the case that the June 1 Memorandum and the October 29 Memoranda “simply explained …
-
#25
more than improper, post hoc rationalizations for termi- nating MPP.”); see also 20 F. 4th, at 961 (questioning how the October 29 Memoranda “[could] be anything more than post hoc rationalizations of the Termination Decision”). But Regents involved the exact opposite situation from this one. There, as here, DHS …
-
#26
answer the District Court's concerns from the frst go-round. Having returned to the drawing table and taken new action, therefore, the Secretary was not subject to the charge of post hoc rationalization. Third, respondents invoke our decision in Department of Commerce v. New York, 588 U. S. ––– (2019), to contend…
-
#27
open mind. See, e. g., 20 F. 4th, at 955 (agency proceeded “without a hint of an intention to put the Termination Deci- sion back on the chopping block and rethink things”). But the agency's ex ante preference for terminating MPP—like any other feature of an administration's policy agenda— should not be held agai…
-
#28
judgment in part and dissenting in part) (“Courts often con- sider an agency's . . . additional explanations made . . . on remand from a court, even if the agency's bottom-line deci- sion itself does not change.”). Finally, the Court of Appeals erred to the extent it viewed the Government's decision to appeal the…
-
#29
Option one: DHS may grant noncitizens parole into the United States if parole provides a “signifcant public beneft.” 8 U. S. C. § 1182(d)(5)(A). Parole entails releasing individu- Page Proof Pending Publication Cite as: 597 U. S. 785 (2022) 815 Kavanaugh, J., concurring als on a case-by-case basis into the Unite…
-
#30
Review under that State Farm standard is deferential but not toothless. Id., at 56. The question of whether DHS's October 29 decision satis- fes 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 8…
-
#31
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. Rodriguez, 583 U. S. 281, 297 (2018). Congress offered the Executive two—and only two—alter- nativ…
-
#32
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 existing detention facilities could not house all the people who were attempting to …
-
#33
leaving asylum applicants “in limbo for years.” Id., at 190. Hours after his inauguration on January 20, 2021, Presi- dent 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,”…
-
#34
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 no…
-
#35
2021, No. 20–322. Instead, the Government refused to rule out the possibility that the provision might also apply to class-wide declaratory relief, and it analogized § 1252(f)(1) to Page Proof Pending Publication Page Proof Pending Publication 822 BIDEN v. TEXAS Alito, J., dissenting the Tax Injunction Act, 28 …
-
#36
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 …
-
#37
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. Rodriguez, O. T. 2017, No. 15–1204, p. 15 (“Aliens seeking admission who are not `clearly and beyond a doubt entitled to be admitted' are statutorily…
-
#38
cross the border illegally in hopes of being paroled and re- leased. Id., at 79. Thus, the Government is failing to meet the statutory detention mandate, not only because of limita- tions on its detention capacity but also because it refuses to use the contiguous-territory return authority. Other than the argumen…
-
#39
twice amended 8 U. S. C. § 1182(d)(5) to limit the scope of the parole power and prevent the executive branch from using 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- r…
-
#40
(1) detain them, (2) return them to a contiguous foreign na- tion, or (3) parole them into the United States on an individ- ualized, case-by-case basis. These options operate in a hydraulic relationship: When it is not possible for the Govern- ment to comply with the statutory mandate to detain inad- missible ali…
-
#41
state facility is open and would be fred 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 Page Proof Pending Publication Cite as: 597 U. S. 785 (2022) 829 Alito, J., dissenting law says only that he “may” use such a facil…
-
#42
gress.” Galvan v. Press, 347 U. S. 522, 531 (1954) (emphasis added). The President has vital power in the feld 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 th…
-
#43
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 unspecifed time; (3) evalu- ated the October 29 Memoranda as fnal agency action in the frst instance under the APA; or (4) concluded that the Octo- ber 29 Memoran…
-
#44
it was eminently reasonable for the Court of Appeals to con- clude that additional delay would not have served the inter- ests 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 o…
-
#45
could not generate any obligations until the agency “obtained vacatur of the District Court's injunction.” Ante, at 809, 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 fnality.” Army Corps of Engineers …
-
#46
on remand should consider in the frst 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 viola- tions of the statute's c…
-
#47
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) deprives lower courts of “ju- risdiction to entertain” requests for “injunctions that order federal offcials to take or to refrain from taking actions to enforce, imp…
-
#48
ernment's removal discretion in litigation challenging termi- nation of Title 42 order). We should not short circuit the ordinary process. Page Proof Pending Publication Cite as: 597 U. S. 785 (2022) 837 Barrett, J., dissenting I have several doubts about the Court's analysis of § 1252(f)(1). To begin with, the…
-
#49
Page Proof Pending Publication 838 BIDEN v. TEXAS Barrett, J., dissenting 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 authority as mutu- ally exclusive—either in general or in this statutory sch…
-
#50
that § 1252(f)(1) does not disturb any pre-existing authority this Court has under the All Writs Act or other sources. These are diffcult 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- …
-
#51
Discrimination Comm., 525 U. S. 471, 481 (1999), a brief dis- cussion 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), and a dissent, see Jennings v. Rodriguez, 583 U. S 281, 355 (2…