Department of Homeland Security v. Regents of Univ. of Cal.

591
1
of2
P R E L I M I N A R Y P R I N T
Vol. 591 (Pp. 1–463; 1001–1022)
UNITED STATES REPORTS
Part 1
Volume 591 U. S. - Part 1
Pages 1–463; 1001–1022
OFFICIAL REPORTS
OF
T H E S U P R E M E C O U R T
June 18 Through June 29, 2020
CHRISTINE LUCHOK FALLON
reporter of decisions
N O T I C E : This preliminary print is subject to formal revision before
the bound volume is published. Users are requested to notify the Reporter
of Decisions, Supreme Court of the United States, Washington, D.C. 20543,
pio@supremecourt.gov, of any typographical or other formal errors.
For sale by the Superintendent of Documents, U. S. Government Publishing Offce
Washington, D.C. 20402

J U S T I C E S
of the
S U P R E M E C O U R T
during the time of these reports
JOHN G. ROBERTS, Jr., Chief Justice.
CLARENCE THOMAS, Associate Justice.
RUTH BADER GINSBURG, Associate Justice.
STEPHEN BREYER, Associate Justice.
SAMUEL A. ALITO, Jr., Associate Justice.
SONIA SOTOMAYOR, Associate Justice.
ELENA KAGAN, Associate Justice.
NEIL M. GORSUCH, Associate Justice.
BRETT M. KAVANAUGH, Associate Justice.
retired
SANDRA DAY O’CONNOR, Associate Justice.
ANTHONY M. KENNEDY, Associate Justice.
DAVID H. SOUTER, Associate Justice.
ofcers of the court
WILLIAM P. BARR, Attorney General.
NOEL J. FRANCISCO, Solicitor General.
SCOTT S. HARRIS, Clerk.
CHRISTINE LUCHOK FALLON, Reporter of
Decisions.
PAMELA TALKIN, Marshal.
LINDA S. MASLOW, Librarian.
i

SUPREME COURT OF THE UNITED STATES
Allotment of Justices
It is ordered that the following allotment be made of the Chief
Justice and Associate Justices of this Court among the circuits,
pursuant to Title 28, United States Code, Section 42, and that such
allotment be entered of record, effective October 19, 2018, viz.:
For the District of Columbia Circuit, John G. Roberts, Jr.,
Chief Justice.
For the First Circuit, Stephen Breyer, Associate Justice.
For the Second Circuit, Ruth Bader Ginsburg, Associate
Justice.
For the Third Circuit, Samuel A. Alito, Jr., Associate Justice.
For the Fourth Circuit, John G. Roberts, Jr., Chief Justice.
For the Fifth Circuit, Samuel A. Alito, Jr., Associate Justice.
For the Sixth Circuit, Sonia Sotomayor, Associate Justice.
For the Seventh Circuit, Brett M. Kavanaugh, Associate
Justice.
For the Eighth Circuit, Neil M. Gorsuch, Associate Justice.
For the Ninth Circuit, Elena Kagan, Associate Justice.
For the Tenth Circuit, Sonia Sotomayor, Associate Justice.
For the Eleventh Circuit, Clarence Thomas, Associate Justice.
For the Federal Circuit, John G. Roberts, Jr., Chief Justice.
October 19, 2018.
(For next previous allotment, see 586 U. S., Pt. 1, p. iii.)
ii

I N D E X
(Vol. 591 U. S., Part 1)
ABORTION RIGHTS. See Constitutional Law.
ADMINISTRATIVE PROCEDURE ACT. See Deferred Action for
Childhood Arrivals Rule.
“ARBITRARY AND CAPRICIOUS” STANDARD OF REVIEW. See
Deferred Action for Childhood Arrivals Rule.
ASYLUM FOR ALIENS. See Constitutional Law.
CONSTITUTIONAL LAW.
Freedom of speech—Legally distinct foreign entities—Directive oppos-
ing prostitution and sex traffcking.—Because the foreign affliates of
American nongovernmental organizations possess no First Amendment
rights, the United States Leadership Against HIV/AIDS, Tuberculosis,
and Malaria Act's limitation on funding organizations with “a policy explic-
itly opposing prostitution and sex traffcking,” 22 U. S. C. § 7631(f ), is not
unconstitutional as applied to them. Agency for Int'l Development v. Alli-
ance for Open Society, p. 430.
Right to abortion—Active hospital admitting-privileges—Undue bur-
den on right to choose abortion.—Fifth Circuit's judgment, upholding a
Louisiana law that requires abortion providers to hold admitting privi-
leges at local hospitals, is reversed. June Medical Services L. L. C. v.
Russo, p. 299.
Separation of powers—Executive authority—Independent Govern-
ment agency.—Consumer Financial Protection Bureau's leadership by a
single Director removable only for ineffciency, neglect, or malfeasance
violates separation of powers. Seila Law LLC v. Consumer Financial
Protection Bureau, p. 197.
Suspension Clause—Expedited removal proceedings—Habeas chal-
lenge.—As applied here, 8 U. S. C. § 1252(e)(2)—which limits the habeas
review obtainable by an alien detained for expedited removal—does not
violate the Suspension or Due Process Clauses. Department of Homeland
Security v. Thuraissigiam, p. 103.
CONSUMER FINANCIAL PROTECTION BUREAU. See Constitu-
tional Law.
iii

iv INDEX
DEFERRED ACTION FOR CHILDHOOD ARRIVALS RULE.
D
iscretionary immigration en forcement policy—Rescission of pol-
icy.—Department of Homeland Security's decision to rescind Deferred Ac-
tion for Childhood Arrivals program was arbitrary and capricious under
Administrative Procedure Act. Department of Homeland Security v. Re-
gents of Univ. of Cal., p. 1.
DEPARTMENT OF HOMELAND SECURITY. See Deferred Action
for Childhood Arrivals Rule.
DISGORGEMENT OF PROFITS. See Securities Law.
DUE PROCESS CLAUSE. See Constitutional Law.
EQUITABLE RELIEF. See Securities Law.
FIRST AMENDMENT. See Constitutional Law.
FREEDOM OF SPEECH. See Constitutional Law.
HABEAS CORPUS. See Constitutional Law.
HIV/AIDS, TUBERCULOSIS, AND MALARIA ACT. See Constitu-
tional Law.
HOSPITAL ADMITTING-PRIVILEGES. See Constitutional Law.
IMMIGRATION LAW. See Constitutional Law; Deferred Action
for Childhood Arrivals Rule.
LOUISIANA. See Constitutional Law.
NONGOV ERNMEN TA L ORGANIZATIONS. See Con stitution a l
Law.
PROSTITUTION. See Constitutional Law.
REMOVAL OF EXECUTIVE OFFICERS. See Constitutional Law.
SECURITIES LAW.
Securities law violation—Disgorgement as a penalty.—In a Securities
and Exchange Commission enforcement action, a disgorgement award that
does not exceed a wrongdoer's net profts and is awarded for victims is
equitable relief permissible under 15 U. S. C. § 78u(d)(5). Liu v. SEC,
p. 71.
SEPARATION OF POW ERS. See Constitutional Law.
SEX TRAFFICKING. See Constitutional Law.

INDEX v
SUSPENSION CLAUSE. See Constitutional Law.
U
NDUE BURDEN ON RIGHT TO ABORTION. See Constitu-
tional Law.

TABLE OF CA SES REPORTED
(Vol. 591 U. S., Part 1)
Notes:
This volume provides the permanent United States Reports citation for
all reported cases. Cases reported before page 1001 are those decided
with opinions of the Court or decisions per curiam. Cases reported on
page 1001 et seq. are those in which orders were entered. Although the
Table of Cases Reported does not list orders denying a petition for writ
of certiorari, such orders are included chronologically in this volume.
The syllabus in a case constitutes no part of the opinion of the Court
but has been prepared by the Reporter of Decisions for the convenience
of the reader. See United States v. Detroit Timber & Lumber Co., 200
U. S. 321, 337 (1906).
A list of counsel who argued or fled briefs in a reported case, and who
were members of the Court's Bar at the time the case was argued, are
included in the United States Reports along with the Court's opinion in
the case.
Page
Abbott; Texas Democratic Party v. . . . . . . . . . . . . . . . . . . . . . . . . 1013
Agency for Int'l Dev. v. Alliance for Open Society Int'l, Inc. . . . . 430
Albritton v. Brnovich . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1002
Albritton v. Shinn . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1002
Allen, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1013
Alliance for Open Society Int'l, Inc.; Agency for Int'l Dev. v. . . . . 430
Angleton Independent School Dist.; Davis v. . . . . . . . . . . . . . . . . 1013
AQ Holdings, LLC; Hirshauer v. . . . . . . . . . . . . . . . . . . . . . . . . . 1013
Arunachalam v. Exxon Mobil Corp. . . . . . . . . . . . . . . . . . . . . . . . 1014
Arunachalam v. Intuit, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1014
Arunachalam v. Lyft, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1014
Arunachalam v. Uber Technologies, Inc. . . . . . . . . . . . . . . . . . . . . 1015
Attorney General; Bourgeois v. . . . . . . . . . . . . . . . . . . . . . . . . . . 1001
Attorney General; Bugarenko v. . . . . . . . . . . . . . . . . . . . . . . . . . . 1014
Attorney General; Ndoromo v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1023
Attorney General of Ariz.; Albritton v. . . . . . . . . . . . . . . . . . . . . . 1002
Attorney General of Ariz.; Ibeabuchi v. . . . . . . . . . . . . . . . . . . . . 1001
Barr; Bourgeois v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1001
vii

viii T
ABLE OF CASES REPORTED
Page
Barr; Bugarenko v. .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1014
Barr; Ndoromo v.
Director of penal or correctional institution. See name or title
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1023
Berean; Jackson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1023
Bey v. Doughtery Cty. State Court . . . . . . . . . . . . . . . . . . . . . . . 1023
Bey v. Weaver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1023
Bourgeois v. Barr . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1001
Bridges v. Gray . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1013
Brnovich; Albritton v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1002
Brnovich; Ibeabuchi v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1001
Brownlee v. Hearns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1023
Bugarenko v. Barr . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1014
California; Lopez v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1001
Cheeks v. Joyner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1013
Children's Corner Daycare; Lovell v. . . . . . . . . . . . . . . . . . . . . . . 1023
Cole v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1013
Consumer Financial Protection Bureau; Seila Law LLC v. . . . . . 197
Davis, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1023
Davis v. Angleton Independent School Dist. . . . . . . . . . . . . . . . . . 1013
DeCarlo, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1015
Dellinger v. Tennessee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1023
Department of Homeland Security v. Regents of Univ. of Cal. . . . 1
Department of Homeland Security v. Thuraissigiam . . . . . . . . . . . 103
DeWine; Thompson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1013
of director.
Doughtery Cty. State Court; El Bey v. . . . . . . . . . . . . . . . . . . . . . 1023
Intuit, Inc.; Arunachalam v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1014
Jackson v. Berean . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1023
DuPage Legal Assistance Foundation; Mohammed v. . . . . . . . . . . 1023
El Bey v. Doughtery Cty. State Court . . . . . . . . . . . . . . . . . . . . . 1023
El Bey v. Weaver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1023
Exxon Mobil Corp.; Arunachalam v. . . . . . . . . . . . . . . . . . . . . . . . 1014
Florida; Swinton v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1023
FMC Corp. v. Shoshone-Bannock Tribes . . . . . . . . . . . . . . . . . . . 1014
Governor of Ohio; Thompson v. . . . . . . . . . . . . . . . . . . . . . . . . . . 1013
Governor of Tex.; Texas Democratic Party v. . . . . . . . . . . . . . . . . 1013
Grant v. Williams . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1013
Gray; Bridges v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1013
Great Northern Ins. Co., Inc.; Sesztak v. . . . . . . . . . . . . . . . . . . . 1001
Griffth; Jones v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1023
Hearns; Brownlee v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1023
Hirshauer v. AQ Holdings, LLC . . . . . . . . . . . . . . . . . . . . . . . . . . 1013
Ibeabuchi v. Brnovich . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1001
Inch; Prenatt v.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1023

T
ABLE OF CASES REPORTED
ix
Page
Jackson v. United States .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1014
Jacobs v. Maricopa Integrated Health Care System . . . . . . . . . . . 1023
Jones v. Griffth . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1023
Joyner; Cheeks v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1013
June Medical Services L. L. C. v. Russo . . . . . . . . . . . . . . . . . . . . 299
Kerns v. Wenner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1023
Liu v. SEC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
Lopez v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1001
Lovell v. Children's Corner Daycare . . . . . . . . . . . . . . . . . . . . . . 1023
Lyft, Inc.; Arunachalam v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1014
Maricopa Integrated Health Care System; Jacobs v. . . . . . . . . . . 1023
Mason; Robinson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1023
Meinster; Rojas v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1001
Mills v. Saul, Commissioner of Social Security . . . . . . . . . . . . . . . 1023
Mohammed v. DuPage Legal Assistance Foundation . . . . . . . . . . 1023
Navarro v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1013
Ndoromo v. Barr . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1023
Nelson; Wazney v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1002
New Jersey; PennEast Pipeline Co., LLC v. . . . . . . . . . . . . . . . . . 1014
Osornio v. Supreme Court of United States . . . . . . . . . . . . . . . . . 1013
Palmer v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1023
PennEast Pipeline Co., LLC v. New Jersey . . . . . . . . . . . . . . . . . 1014
Prenatt v. Inch . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1023
Regents of Univ. of Cal.; Department of Homeland Security v. . . . 1
Robinson, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1002
Robinson v. Mason . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1023
Rojas v. Meinster . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1001
Russo; June Medical Services L. L. C. v. . . . . . . . . . . . . . . . . . . . 299
Saul, Commissioner of Social Security; Mills v. . . . . . . . . . . . . . . . 1023
Schubert v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1014
Secretary of penal or correctional institution. See name or title
of secretary.
SEC; Liu v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
Seila Law LLC v. Consumer Financial Protection Bureau . . . . . . 197
Sesztak v. Great Northern Ins. Co., Inc. . . . . . . . . . . . . . . . . . . . . 1001
Shinn; Albritton v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1002
Shoshone-Bannock Tribes; FMC Corp. v. . . . . . . . . . . . . . . . . . . . 1014
Sims, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1015
Smith, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1002
Spence, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1002
State. See name of State.
Superintendent of penal or correctional institution. See name or
title of superintendent.
Supreme Court of United States; Osornio v. . . . . . . . . . . . . . . . . . 1013

x T
ABLE OF CASES REPORTED
Page
Swinton v. Florida .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1023
Tennessee; Dellinger v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1023
Texas Democratic Party v. Abbott . . . . . . . . . . . . . . . . . . . . . . . . 1013
Thompson v. DeWine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1013
Thuraissigiam; Department of Homeland Security v. . . . . . . . . . . 103
Uber Technologies, Inc.; Arunachalam v. . . . . . . . . . . . . . . . . . . . 1015
United States. See name of other party.
Warden. See name of warden.
Wazney v. Nelson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1002
Weaver; El Bey v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1023
Wenner; Kerns v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1023
Williams; Grant v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1013
Wright, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1002

CASES ADJUDGED
IN THE
SUPREME COURT OF THE UNITED STATES
AT
OCTOBER TERM, 2019
DEPARTMENT OF HOMELAND SECURITY et al. v.
REGENTS OF THE UNIVERSITY OF
CALIFORNIA et al.
certiorari to the united states court of appeals for
the ninth circuit
No. 18–587. Argued November 12, 2019—Decided June 18, 2020*
In 2012, the Department of Homeland Security (DHS) issued a memoran-
dum announcing an immigration relief program known as Deferred Ac-
tion for Childhood Arrivals (DACA), which allows certain unauthorized
aliens who arrived in the United States as children to apply for a two-
year forbearance of removal. Those granted such relief become eligi-
ble for work authorization and various federal benefts. Some 700,000
aliens have availed themselves of this opportunity.
Two years later, DHS expanded DACA eligibility and created a
related program known as Deferred Action for Parents of Americans
and Lawful Permanent Residents (DAPA). If implemented, that pro-
gram would have made 4.3 million parents of U. S. citizens or lawful
*Together with No. 18–588, Trump, President of the United States,
et al. v. National Association for the Advancement of Colored People
et al., on certiorari before judgment to the United States Court of Appeals
for the District of Columbia Circuit, and No. 18–589, Wol f, Acting Secre-
tary of Homeland Security, et al. v. Batalla Vidal et al., on certiorari
before judgment to the United States Court of Appeals for the Second
Circuit.
1

2 DEP
ARTMENT OF HOMELAND SECURITY v.
REGENTS OF UNIV. OF CAL.
Syllabus
permanent residents eligible for the same forbearance from removal,
work
eligibility, and other benefts as DACA recipients. Texas, joined
by 25 other States, secured a nationwide preliminary injunction barring
implementation of both the DACA expansion and DAPA. The Fifth
Circuit upheld the injunction, concluding that the program violated the
Immigration and Nationality Act (INA), which carefully defnes eligibil-
ity for benefts. This Court affrmed by an equally divided vote, and
the litigation then continued in the District Court.
In June 2017, following a change in Presidential administrations,
DHS rescinded the DAPA Memorandum, citing, among other reasons,
the ongoing suit by Texas and new policy priorities. That September,
the Attorney General advised Acting Secretary of Homeland Security
Elaine C. Duke that DACA shared DAPA's legal faws and should also
be rescinded. The next day, Duke acted on that advice. Taking into
consideration the Fifth Circuit and Supreme Court rulings and the At-
torney General's letter, Duke decided to terminate the program. She
explained that DHS would no longer accept new applications, but that
existing DACA recipients whose benefts were set to expire within six
months could apply for a two-year renewal. For all other DACA recipi-
ents, previously issued grants of relief would expire on their own terms,
with no prospect for renewal.
Several groups of plaintiffs challenged Duke's decision to rescind
DACA, claiming that it was arbitrary and capricious in violation of the
Administrative Procedure Act (APA) and infringed the equal protection
guarantee of the Fifth Amendment's Due Process Clause. District
Courts in California (Regents, No. 18–587), New York (Batalla Vidal,
No. 18–589), and the District of Columbia (NAACP, No. 18–588) all
ruled for the plaintiffs. Each court rejected the Government's argu-
ments that the claims were unreviewable under the APA and that the
INA deprived the courts of jurisdiction. In Regents and Batalla Vidal,
the District Courts further held that the equal protection claims were
adequately alleged, and they entered coextensive nationwide prelimi-
nary injunctions based on the conclusion that the plaintiffs were likely
to succeed on their APA claims. The District Court in NAACP took a
different approach. It deferred ruling on the equal protection chal-
lenge but granted partial summary judgment to the plaintiffs on their
APA claim, fnding that the rescission was inadequately explained. The
court then stayed its order for 90 days to permit DHS to reissue a
memorandum rescinding DACA, this time with a fuller explanation of
the conclusion that DACA was unlawful. Two months later, Duke's suc-
cessor, Secretary Kirst jen M. Nielsen, responded to the court's order.
She declined to disturb or replace Duke's rescission decision and instead

Cite
as: 591 U. S. 1 (2020)
3
Syllabus
explained why she thought her predecessor's decision was sound. In
additi
on to reiterating the illegality conclusion, she offered several new
justifcations for the rescission. The Government moved for the Dis-
trict Court to reconsider in light of this additional explanation, but the
court concluded that the new reasoning failed to elaborate meaningfully
on the illegality rationale.
The Government appealed the various District Court decisions to the
Second, Ninth, and D. C. Circuits, respectively. While those appeals
were pending, the Government fled three petitions for certiorari before
judgment. Following the Ninth Circuit affrmance in Regents, this
Court granted certiorari.
Held: The judgment in No. 18–587 is vacated in part and reversed in part;
the judgment in No. 18–588 is affrmed; the February 13, 2018 order in
No. 18–589 is vacated, the November 9, 2017 order is affrmed in part,
and the March 29, 2018 order is reversed in part; and all of the cases
are remanded.
No. 18–587, 908 F. 3d 476, vacated in part and reversed in part; No. 18–
588, affrmed; and No. 18–589, February 13, 2018 order vacated, Novem-
ber 9, 2017 order affrmed in part, and March 29, 2018 order reversed in
part; all cases remanded.
The Chief Justice delivered the opinion of the Court, except as to
Part IV, concluding:
1. DHS's rescission decision is reviewable under the APA and is
within this Court's jurisdiction. Pp. 16–20.
(a) The APA's “basic presumption of judicial review” of agency ac-
tion, Abbott Laboratories v. Gardner, 387 U. S. 136, 140, can be rebutted
by showing that the “agency action is committed to agency discretion
by law,” 5 U. S. C. § 701(a)(2). In Heckler v. Chaney, the Court held
that this narrow exception includes an agency's decision not to institute
an enforcement action. 470 U. S. 821, 831–832. The Government con-
tends that DACA is a general non-enforcement policy equivalent to the
individual non-enforcement decision in Chaney. But the DACA Memo-
randum did not merely decline to institute enforcement proceedings;
it created a program for conferring affrmative immigration relief.
Therefore, unlike the non-enforcement decision in Chaney, DACA's
creation—and its rescission—is an “action [that] provides a focus for
judicial review.” Id., at 832. In addition, by virtue of receiving de-
ferred action, 700,000 DACA recipients may request work author-
ization and are eligible for Social Security and Medicare. Access to such
benefts is an interest “courts often are called upon to protect.” Ibid.
DACA's rescission is thus subject to review under the APA. Pp. 16–19.

4 DEP
ARTMENT OF HOMELAND SECURITY v.
REGENTS OF UNIV. OF CAL.
Syllabus
(b) The two jurisdictional provisions of the INA invoked by the
Gover
nment do not apply. Title 8 U. S. C. § 1252(b)(9), which bars re-
view of claims arising from “action[s]” or “proceeding[s] brought to re-
move an alien,” is inapplicable where, as here, the parties do not chal-
lenge any removal proceedings. And the rescission is not a decision
“to commence proceedings, adjudicate cases, or execute removal orders”
within the meaning of § 1252(g). Pp. 19–20.
2. DHS's decision to rescind DACA was arbitrary and capricious
under the APA. Pp. 20–33.
(a) In assessing the rescission, the Government urges the Court to
consider not just the contemporaneous explanation offered by Acting
Secretary Duke but also the additional reasons supplied by Secretary
Nielsen nine months later. Judicial review of agency action, however,
is limited to “the grounds that the agency invoked when it took the
action.” Michigan v. EPA, 576 U. S. 743, 758. If those grounds are
inadequate, a court may remand for the agency to offer “a fuller expla-
nation of the agency's reasoning at the time of the agency action,” Pen-
sion Beneft Guaranty Corporation v. LTV Corp., 496 U. S. 633, 654
(emphasis added), or to “deal with the problem afresh” by taking new
agency action, SEC v. Chenery Corp., 332 U. S. 194, 201. Because Sec-
retary Nielsen chose not to take new action, she was limited to elaborat-
ing on the agency's original reasons. But her reasoning bears little
relationship to that of her predecessor and consists primarily of imper-
missible “post hoc rationalization.” Citizens to Preserve Overton Park,
Inc. v. Volpe, 401 U. S. 402, 420. The rule requiring a new decision
before considering new reasons is not merely a formality. It serves
important administrative law values by promoting agency accountabil-
ity to the public, instilling confdence that the reasons given are not
simply convenient litigating positions, and facilitating orderly review.
Each of these values would be markedly undermined if this Court al-
lowed DHS to rely on reasons offered nine months after the rescission
and after three different courts had identifed faws in the original
explanation. Pp. 20–24.
(b) Acting Secretary Duke's rescission memorandum failed to con-
sider important aspects of the problem before the agency. Although
Duke was bound by the Attorney General's determination that DACA
is illegal, see 8 U. S. C. § 1103(a)(1), deciding how best to address that
determination involved important policy choices reserved for DHS.
Acting Secretary Duke plainly exercised such discretionary authority in
winding down the program, but she did not appreciate the full scope of
her discretion. The Attorney General concluded that the legal defects
in DACA mirrored those that the courts had recognized in DAPA. The
Fifth Circuit, the highest court to offer a reasoned opinion on DAPA's

Cite
as: 591 U. S. 1 (2020)
5
Syllabus
legality, found that DAPA violated the INA because it extended eligibil-
ity
for benefts to a class of unauthorized aliens. But the defning fea-
ture of DAPA (and DACA) is DHS's decision to defer removal, and the
Fifth Circuit carefully distinguished that forbearance component from
the associated benefts eligibility. Eliminating benefts eligibility while
continuing forbearance thus remained squarely within Duke's discretion.
Yet, rather than addressing forbearance in her decision, Duke treated
the Attorney General's conclusion regarding the illegality of benefts as
suffcient to rescind both benefts and forbearance, without explanation.
That reasoning repeated the error in Motor Vehicle Manufacturers As-
sociation of the United States, Inc. v. State Farm— treating a rationale
that applied to only part of a policy as suffcient to rescind the entire
policy. 463 U. S. 29, 51. While DHS was not required to “consider all
policy alternatives,” ibid., deferred action was “within the ambit of the
existing ” policy, ibid.; indeed, it was the centerpiece of the policy. In
failing to consider the option to retain deferred action, Duke “failed to
supply the requisite `reasoned analysis.' ” Id., at 57.
That omission alone renders Duke's decision arbitrary and capricious,
but it was not the only defect. Duke also failed to address whether
there was “legitimate reliance” on the DACA Memorandum. Smiley v.
Citibank (South Dakota), N. A., 517 U. S. 735, 742. Certain features
of the DACA policy may affect the strength of any reliance interests,
but those features are for the agency to consider in the frst instance.
DHS has fexibility in addressing any reliance interests and could have
considered various accommodations. While the agency was not re-
quired to pursue these accommodations, it was required to assess the
existence and strength of any reliance interests, and weigh them against
competing policy concerns. Its failure to do so was arbitrary and capri-
cious. Pp. 24–33.
The Chief Justice, joined by Justice Ginsburg, Justice Breyer,
and Justice Kagan, concluded in Part IV that respondents' claims fail
to establish a plausible inference that the rescission was motivated
by animus in violation of the equal protection guarantee of the Fifth
Amendment. Pp. 33–35.
Roberts, C. J., delivered the opinion of the Court, except as to Part
IV. Ginsburg, Breyer, and Kagan, JJ., joined that opinion in full, and
Sotomayor, J., joined as to all but Part IV. Sotomayor, J., fled an opin-
ion concurring in part, concurring in the judgment in part, and dissenting
in part post, p. 36. Thomas, J., fled an opinion concurring in the judg-
ment in part and dissenting in part, in which Alito and Gorsuch, JJ.,
joined post, p. 39. Alito, J., post, p. 63, and Kavanaugh, J., post, p. 64,
fled opinions concurring in the judgment in part and dissenting in part.

6 DEP
ARTMENT OF HOMELAND SECURITY v.
REGENTS OF UNIV. OF CAL.
Counsel
Solicitor General Francisco argued the cause for petition-
ers
in all cases. With him on the briefs were Assistant
Attorney General Hunt, Deputy Solicitor General Wall,
Deputy Assistant Attorney General Mooppan, Jonathan Y.
Ellis, Mark B. Stern, and Thomas Pulham.
Theodore B. Olson argued the cause for private respond-
ents in all cases. With him on the briefs in Nos. 18–587 and
18–589 were Stuart F. Delery, Matthew S. Rozen, Andrew J.
Wilhelm, Theodore J. Boutros, Jr., Ethan D. Dettmer, Jona-
than N. Soleimani, Mark D. Rosenbaum, Judy London,
Erwin Chemerinsky, Laurence H. Tribe, Luis Cortes Ro-
mero, Leah M. Litman, Stacey M. Leyton, James R. Wil-
liams, Greta S. Hansen, Michael J. Wishnie, Muneer I.
Ahmad, Marisol Orihuela, Karen C. Tumlin, Amy S. Tay-
lor, Trudy S. Rebert, Araceli Martínez-Olguín, Mayra B.
Joachin, and Scott Foletta. On the brief for respondent Re-
gents of the University of California et al. in No. 18–587
were Robert A. Long, Mark H. Lynch, Alexander A. Beren-
gaut, Megan A. Crowley, David Watnick, Charles F. Robin-
son, Margaret Wu, and Brian Danitz. On the brief in
No. 18–588 were Lindsay C. Harrison, Ian Heath Gershen-
go r n, Tho m as J. Pe r rell i, Ma t th ew E. Pr i ce, Ishan K.
Bhabha, Benjamin M. Eidelson, Joseph M. Sellers, Ramona
E. Romero, Wesley Markham, Cynthia L. Randall, David J.
Strom, and Peter J. Ford.
Michael J. Mongan, Solicitor General of California, argued
the cause for state respondents in all cases. With him on
the brief in No. 18–587 were Xavier Becerra, Attorney Gen-
eral of California, Michael L. Newman, Senior Assistant At-
torney General, Samuel P. Siegel and Joshua Patashnik,
Deputy Solicitors General, and Shubhra Shivpuri and James
F. Zahradka II, Deputy Attorneys General, by Aaron M.
Frey, Attorney General of Maine, and Susan P. Herman,
Deputy Attorney General, by Brian E. Frosh, Attorney Gen-
eral of Maryland, Steven M. Sullivan, Solicitor General, and
Leah J. Tulin, Assistant Attorney General, and by Keith El-
lison, Attorney General of Minnesota, Liz Kramer, Solicitor

Cite
as: 591 U. S. 1 (2020)
7
Counsel
General, and Jacob Campion, Assistant Attorney General.
On
the brief in No. 18–589 were Letitia James, Attorney
General of New York, Barbara D. Underwood, Solicitor Gen-
eral, Anisha S. Dasgupta, Deputy Solicitor General, Andrew
W. Amend, Assistant Deputy Solicitor General, and David S.
Frankel, Assistant Solicitor General, and by the Attorneys
General for their respective jurisdictions as follows: Phil
Weiser of Colorado, William Tong of Connecticut, Kathy
Jennings of Delaware, Karl A. Racine of the District of Co-
lumbia, Clare E. Connors of Hawaii, Kwame Raoul of Illi-
nois, Thomas J. Miller of Iowa, Maura Healey of Massachu-
setts, Hector H. Balderas of New Mexico, Josh Stein of
North Carolina, Ellen F. Rosenblum of Oregon, Josh Shapiro
of Pennsylvania, Peter F. Neronha of Rhode Island, Thomas
J. Donovan of Vermont, Mark R. Herring of Virginia, and
Robert W. Ferguson of Washington.†
†Briefs of amici curiae urging reversal in all cases were fled for the
State of Texas et al. by Ken Paxton, Attorney General of Texas, Kyle D.
Hawkins, Solicitor General, Jeffrey C. Mateer, First Assistant Attorney
General, Matthew H. Frederick, Deputy Solicitor General, and Ari Cuenin
and Lanora C. Pettit, Assistant Solicitors General, and by the Attorneys
General for their respective States as follows: Steve Marshall of Alabama,
Kevin G. Clarkson of Alaska, Mark Brnovich of Arizona, Leslie Rutledge
of Arkansas, Ashley Moody of Florida, Derek Schmidt of Kansas, Jeff
Landry of Louisiana, Doug Peterson of Nebraska, Alan Wilson of South
Carolina, Jason R. Ravnsborg of South Dakota, and Patrick Morrisey of
West Virginia; for the Cato Institute et al. by Ilya Shapiro and Josh
Blackman; for the Center for Constitutional Jurisprudence by John C.
Eastman and Anthony T. Caso; for Citizens United et al. by Robert J.
Olson, Jeremiah L. Morgan, Herbert W. Titus, and William J. Olson; for
the Immigration Reform Law Institute by Christopher J. Hajec; for Save
Jobs USA et al. by John M. Miano; for the Southeastern Legal Foundation
by Kurt R. Hilbert, Kelly H. Brolly, and Kimberly S. Hermann; and for
Ronald A. Cass et al. by Mr. Cass, pro se.
Briefs of amici curiae urging affrmance in all cases were fled for the
State of Nevada et al. by Aaron D. Ford, Attorney General of Nevada,
Heidi Parry Stern, Solicitor General, Craig A. Newby, Deputy Solicitor
General, Dana Nessel, Attorney General of Michigan, Eric J. Wilson, Dep-
uty Attorney General of Wisconsin, and Steve Bullock, Governor of Mon-
tana; for Administrative Law Practitioners by Kevin K. Russell, Daniel

8 DEP
ARTMENT OF HOMELAND SECURITY v.
REGENTS OF UNIV. OF CAL.
Opinion of the Court
Chief Justice Roberts delivered the opinion of the
Cour
t, except as to Part IV.
In the summer of 2012, the Department of Homeland Secu-
rity (DHS) announced an immigration program known as De-
Woofter, Charles H. Davis, and Erica Oleszczuk Evans; for Administra-
tive Law Scholars by Seth P. Waxman and Alan E. Schoen feld; for Alianza
Americas et al. by Neil V. McKittrick; for the American Council on Educa-
tion et al. by Neal K. Katyal, Jessica L. Ellsworth, and Mitchell P. Reich;
for the American Historical Association et al. by Pratik A. Shah, Z. W.
Julius Chen, Jessica Weisel, and Robert S. Chang; for the American Pro-
fessional Society on the Abuse of Children et al. by Mary Kelly Persyn
and Kelsi Brown Corkran; for the Association of American Medical Col-
leges et al. by Jonathan S. Franklin, Heather J. Alarcon, and Frank R.
Trinity; for Current and Former Prosecutors et al. by Mary B. McCord,
Joshua A. Geltzer, Annie L. Owens, Matthew J. Piers, and Caryn C. Led-
erer; for Current Members of Congress et al. by Elizabeth B. Wydra, Bri-
anne J. Gorod, and Brian R. Frazelle; for Empirical Scholars by Nikolas
Bowie and Oren Nimni; for Former Homeland Security and Immigration
Offcials by Joshua Riley, Menno Goedman, Albert Giang, Jeh C. Johnson,
and Masha G. Hansford; for Former National Security Offcials by Harold
Hongju Koh, Hope R. Metcal f, and Phillip Spector; for Former Service
Secretaries et al. by Charles B. Klein, Peter E. Perkowski, and Harvey
Weiner; for the Government of the United Mexican States by Adela Elvia
Ruth McChesney and Faye Magdalena Kolly; for Immigration Law Schol-
ars by Harry Lee; for Institutions of Higher Education by Bruce V. Spiva;
for the Lawyers' Committee for Civil Rights Under Law et al. by William
D. Coston, Martin L. Saad, Kristen Clarke, Jon Greenbaum, Dariely Ro-
driguez, and Phylicia H. Hill; for the NAACP Legal Defense & Education
Fund, Inc., et al. by Daniel Harawa, Sherrilyn A. Ifll, Janai S. Nelson,
Samuel Spital, Natasha Merle, Raymond Audain, and Cara McClellan;
for the National Association of Home Builders et al. by Gavin R. Villareal;
for the National Education Association et al. by Alice O'Brien, Emma
Leheny, and Lubna A. Alam; for the National Queer Asian Pacifc Islander
Alliance et al. by Susan M. Finegan; for the National School Boards Asso-
ciation et al. by Richard P. Bress and Francisco M. Negrón, Jr.; for Nine-
teen Colleges and Universities by Anton Metlitsky and Jennifer B. So-
koler; for Nonproft Legal Services Organizations by Maureen P. Alger,
Monique R. Sherman, Jonathan S. Kolodner, and Jessa DeGroote; for
Public Citizen et al. by Scott L. Nelson and Allison M. Zieve; for the
Public Interest Law Center et al. by William Alden McDaniel, Jr.,
Thomas W. Hazlett, and Mansi G. Shah; for Service Employees Interna-

Cite
as: 591 U. S. 1 (2020)
9
Opinion of the Court
ferred Action for Childhood Arrivals, or DACA. That pro-
gram
allows certain unauthorized aliens who entered the
United States as children to apply for a two-year forbearance
of removal. Those granted such relief are also eligible for
work authorization and various federal benefts. Some
700,000 aliens have availed themselves of this opportunity.
Five years later, the Attorney General advised DHS to
rescind DACA, based on his conclusion that it was unlawful.
The Department's Acting Secretary issued a memorandum
terminating the program on that basis. The termination
was challenged by affected individuals and third parties who
alleged, among other things, that the Acting Secretary had
violated the Administrative Procedure Act (APA) by failing
to adequately address important factors bearing on her deci-
sion. For the reasons that follow, we conclude that the Act-
ing Secretary did violate the APA, and that the rescission
must be vacated.
I
A
In June 2012, the Secretary of Homeland Security issued
a memorandum announcing an immigration relief program
tional Union et al. by Deepak Gupta, Nicole G. Berner, Claire Prestel,
Harold C. Becker, Matthew J. Ginsburg, and Judith Rivlin; for Teach for
America, Inc., by Ronald G. Blum and Harvey L. Rochman; for Texas v.
United States Defendant-Intervenors DACA Recipients et al. by Nina
Perales, Douglas Hallward-Driemeier, Gurbir S. Grewal, Attorney Gen-
eral of New Jersey, and Jeremy M. Feigenbaum and Glenn J. Moramarco,
Assistant Attorneys General; for the United States Conference of Catholic
Bishops et al. by Christopher J. Wright and Stephen W. Miller; for United
We Dream et al. by Peter Karanjia and Geoffrey Brounell; for Tim Cook
et al. by E. Joshua Rosenkranz, Mark S. Davies, Thomas M. Bondy, Jer-
emy R. Peterman, and Aaron Brecher; for 109 Cities et al. by Margaret
L. Carter, Daniel R. Suvor, Michael N. Feuer, James P. Clark, Valerie L.
Flores, Danielle Goldstein, and Michael Dundas; for 127 Religious Orga-
nizations by Steven A. Zalesin, Adeel A. Mangi, Farhana Khera, and
Juvaria Khan; and for 143 U. S. Business Associations et al. by Andrew
J. Pincus.

10 DEP
ARTMENT OF HOMELAND SECURITY v.
REGENTS OF UNIV. OF CAL.
Opinion of the Court
for “certain young people who were brought to this country
as
children.” App. to Pet. for Cert. in No. 18–587, p. 97a
(App. to Pet. for Cert.). Known as DACA, the program ap-
plies to childhood arrivals who were under age 31 in 2012;
have continuously resided here since 2007; are current stu-
dents, have completed high school, or are honorably dis-
charged veterans; have not been convicted of any serious
crimes; and do not threaten national security or public safety.
Id., at 98a. DHS concluded that individuals who meet these
criteria warrant favorable treatment under the immigration
laws because they “lacked the intent to violate the law,” are
“productive” contributors to our society, and “know only this
country as home.” Id., at 98a–99a.
“[T]o prevent [these] low priority individuals from being
removed from the United States,” the DACA Memorandum
instructs Immigration and Customs Enforcement to “exer-
cise prosecutorial discretion[ ] on an individual basis . . . by
deferring action for a period of two years, subject to re-
newal.” Id., at 100a. In addition, it directs U. S. Citizen-
ship and Immigration Services (USCIS) to “accept applica-
tions to determine whether these individuals qualify for
work authorization during this period of deferred action,”
id., at 101a, as permitted under regulations long predating
DACA's creation, see 8 CFR § 274a.12(c)(14) (2012) (permit-
ting work authorization for deferred action recipients who
establish “economic necessity”); 46 Fed. Reg. 25080–25081
(1981) (similar). Pursuant to other regulations, deferred ac-
tion recipients are considered “lawfully present” for pur-
poses of, and therefore eligible to receive, Social Security
and Medicare benefts. See 8 CFR § 1.3(a)(4)(vi); 42 CFR
§ 417.422(h) (2019).
In November 2014, two years after DACA was promul-
gated, DHS issued a memorandum announcing that it would
expand DACA eligibility by removing the age cap, shifting
the date-of-entry requirement from 2007 to 2010, and extend-
ing the deferred action and work authorization period to

Cite
as: 591 U. S. 1 (2020)
11
Opinion of the Court
three years. App. to Pet. for Cert. 106a–107a. In the same
memorandum,
DHS created a new, related program known
as Deferred Action for Parents of Americans and Lawful
Permanent Residents, or DAPA. That program would have
authorized deferred action for up to 4.3 million parents
whose children were U. S. citizens or lawful permanent resi-
dents. These parents were to enjoy the same forbearance,
work eligibility, and other benefts as DACA recipients.
Before the DAPA Memorandum was implemented, 26
States, led by Texas, fled suit in the Southern District of
Texas. The States contended that DAPA and the DACA
expansion violated the APA's notice and comment require-
ment, the Immigration and Nationality Act (INA), and the
Executive's duty under the Take Care Clause of the Consti-
tution. The District Court found that the States were likely
to succeed on the merits of at least one of their claims and
entered a nationwide preliminary injunction barring imple-
mentation of both DAPA and the DACA expansion. See
Texas v. United States, 86 F. Supp. 3d 591, 677–678 (2015).
A divided panel of the Court of Appeals for the Fifth Cir-
cuit affrmed the preliminary injunction. Texas v. United
States, 809 F. 3d 134, 188 (2015). In opposing the injunction,
the Government argued that the DAPA Memorandum re-
fected an unreviewable exercise of the Government's en-
forcement discretion. The Fifth Circuit majority disagreed.
It reasoned that the deferred action described in the DAPA
Memorandum was “much more than nonenforcement: It
would affrmatively confer `lawful presence' and associated
benefts on a class of unlawfully present aliens.” Id., at 166.
From this, the majority concluded that the creation of the
DAPA program was not an unreviewable action “committed
to agency discretion by law.” Id., at 169 (quoting 5 U. S. C.
§ 701(a)(2)).
The majority then upheld the injunction on two grounds.
It frst concluded the States were likely to succeed on their
procedural claim that the DAPA Memorandum was a sub-

12 DEP
ARTMENT OF HOMELAND SECURITY v.
REGENTS OF UNIV. OF CAL.
Opinion of the Court
stantive rule that was required to undergo notice and com-
ment.
It then held that the APA required DAPA to be set
aside because the program was “manifestly contrary” to the
INA, which “expressly and carefully provides legal designa-
tions allowing defned classes” to “receive the benefts” asso-
ciated with “lawful presence” and to qualify for work au-
thorization, 809 F. 3d, at 179–181, 186 (internal quotation
marks omitted). Judge King dissented.
This Court affrmed the Fifth Circuit's judgment by an
equally divided vote, which meant that no opinion was is-
sued. United States v. Texas, 579 U. S. 547 (2016) (per cu-
riam). For the next year, litigation over DAPA and the
DACA expansion continued in the Southern District of
Texas, while implementation of those policies remained
enjoined.
Then, in June 2017, following a change in Presidential ad-
ministrations, DHS rescinded the DAPA Memorandum. In
explaining that decision, DHS cited the preliminary injunc-
tion and ongoing litigation in Texas, the fact that DAPA had
never taken effect, and the new administration's immigration
enforcement priorities.
Three months later, in September 2017, Attorney General
Jefferson B. Sessions III sent a letter to Acting Secretary of
Homeland Security Elaine C. Duke, “advis[ing]” that DHS
“should rescind” DACA as well. App. 877. Citing the
Fifth Circuit's opinion and this Court's equally divided af-
frmance, the Attorney General concluded that DACA shared
the “same legal . . . defects that the courts recognized as
to DAPA” and was “likely” to meet a similar fate. Id., at
878. “In light of the costs and burdens” that a rescission
would “impose[ ] on DHS,” the Attorney General urged DHS
to “consider an orderly and effcient wind-down process.”
Ibid.
The next day, Duke acted on the Attorney General's ad-
vice. In her decision memorandum, Duke summarized the
history of the DACA and DAPA programs, the Fifth Circuit

Cite
as: 591 U. S. 1 (2020)
13
Opinion of the Court
opinion and ensuing affrmance, and the contents of the At-
tor
ney General's letter. App. to Pet. for Cert. 111a–117a.
“Taking into consideration the Supreme Court's and the
Fifth Circuit's rulings” and the “letter from the Attorney
General,” she concluded that the “DACA program should be
terminated.” Id., at 117a.
Duke then detailed how the program would be wound
down: No new applications would be accepted, but DHS
would entertain applications for two-year renewals from
DACA recipients whose benefts were set to expire within
six months. For all other DACA recipients, previously is-
sued grants of deferred action and work authorization would
not be revoked but would expire on their own terms, with
no prospect for renewal. Id., at 117a–118a.
B
Within days of Acting Secretary Duke's rescission an-
nouncement, multiple groups of plaintiffs ranging from indi-
vidual DACA recipients and States to the Regents of the
University of California and the National Association for the
Advancement of Colored People challenged her decision in
the U. S. District Courts for the Northern District of Califor-
nia (Regents, No. 18–587), the Eastern District of New York
(Batalla Vidal, No. 18–589), and the District of Columbia
(NAACP, No. 18–588). The relevant claims are that the re-
scission was arbitrary and capricious in violation of the APA
and that it infringed the equal protection guarantee of the
Fifth Amendment's Due Process Clause.
1
All three District Courts ruled for the plaintiffs, albeit at
different stages of the proceedings.
2
In doing so, each court
1
Plaintiffs also raised notice and comment claims, which uniformly failed
below, and assorted due process challenges, some of which survived mo-
tions to dismiss. Those claims are not before us.
2
In a related challenge not at issue here, the District Court for the
District of Maryland granted partial summary judgment in favor of the
Government. Casa de Maryland v. United States Dept. of Homeland

14 DEP
ARTMENT OF HOMELAND SECURITY v.
REGENTS OF UNIV. OF CAL.
Opinion of the Court
rejected the Government's threshold arguments that the
clai
ms were unreviewable under the APA and that the INA
deprived the court of jurisdiction. 298 F. Supp. 3d 209, 223–
224, 234–235 (DC 2018); 279 F. Supp. 3d 1011, 1029–1033 (ND
Cal. 2018); 295 F. Supp. 3d 127, 150, 153–154 (EDNY 2017).
In Regents and Batalla Vidal, the District Courts held
that the equal protection claims were adequately alleged.
298 F. Supp. 3d 1304, 1315 (ND Cal. 2018); 291 F. Supp. 3d
260, 279 (EDNY 2018). Those courts also entered coexten-
sive nationwide preliminary injunctions, based on the conclu-
sion that the plaintiffs were likely to succeed on the merits of
their claims that the rescission was arbitrary and capricious.
These injunctions did not require DHS to accept new appli-
cations, but did order the agency to allow DACA recipients
to “renew their enrollments.” 279 F. Supp. 3d, at 1048; see
279 F. Supp. 3d 401, 437 (EDNY 2018).
In NAACP, the D. C. District Court took a different
course. In April 2018, it deferred ruling on the equal pro-
tection challenge but granted partial summary judgment to
the plaintiffs on their APA claim, holding that Acting Secre-
tary Duke's “conclusory statements were insuffcient to ex-
plain the change in [the agency's] view of DACA's lawful-
ness.” 298 F. Supp. 3d, at 243. The District Court stayed
its order for 90 days to permit DHS to “reissue a memoran-
dum rescinding DACA, this time providing a fuller explana-
tion for the determination that the program lacks statutory
and constitutional authority.” Id., at 245.
Two months later, Duke's successor, Secretary Kirstjen M.
Nielsen, responded via memorandum. App. to Pet. for Cert.
120a–126a. She explained that, “[h]aving considered the
Security, 284 F. Supp. 3d 758 (2018). After the Government fled petitions
for certiorari in the instant cases, the Fourth Circuit reversed that deci-
sion and vacated Acting Secretary Duke's rescission as arbitrary and ca-
pricious. Casa de Maryland v. United States Dept. of Homeland Secu-
rity, 924 F. 3d 684 (2019), cert. pending, No. 18–1469. The Fourth Circuit
has since stayed its mandate.

Cite
as: 591 U. S. 1 (2020)
15
Opinion of the Court
Duke memorandum,” she “decline[d] to disturb” the rescis-
si
on. Id., at 121a. Secretary Nielsen went on to articulate
her “understanding ” of Duke's memorandum, identifying
three reasons why, in Nielsen's estimation, “the decision to
rescind the DACA policy was, and remains, sound.” Ibid.
First, she reiterated that, “as the Attorney General con-
cluded, the DACA policy was contrary to law.” Id., at 122a.
Second, she added that, regardless, the agency had “serious
doubts about [DACA's] legality” and, for law enforcement
reasons, wanted to avoid “legally questionable” policies.
Id., at 123a. Third, she identifed multiple policy reasons for
rescinding DACA, including (1) the belief that any class-
based immigration relief should come from Congress, not
through executive non-enforcement; (2) DHS's preference for
exercising prosecutorial discretion on “a truly individualized,
case-by-case basis”; and (3) the importance of “project[ing] a
message” that immigration laws would be enforced against
all classes and categories of aliens. Id., at 123a–124a. In
her fnal paragraph, Secretary Nielsen acknowledged the
“asserted reliance interests” in DACA's continuation but con-
cluded that they did not “outweigh the questionable legality
of the DACA policy and the other reasons” for the rescission
discussed in her memorandum. Id., at 125a.
The Government asked the D. C. District Court to revise
its prior order in light of the reasons provided by Secretary
Nielsen, but the court declined. In the court's view, the new
memorandum, which “fail[ed] to elaborate meaningfully” on
the agency's illegality rationale, still did not provide an ade-
quate explanation for the September 2017 rescission. 315
F. Supp. 3d 457, 460, 473–474 (2018).
The Government appealed the various District Court deci-
sions to the Second, Ninth, and D. C. Circuits, respectively.
In November 2018, while those appeals were pending, the
Government simultaneously fled three petitions for certio-
rari before judgment. After the Ninth Circuit affrmed the
nationwide injunction in Regents, see 908 F. 3d 476 (2018),

16 DEP
ARTMENT OF HOMELAND SECURITY v.
REGENTS OF UNIV. OF CAL.
Opinion of the Court
but before rulings from the other two Circuits, we granted
the
petitions and consolidated the cases for argument. 588
U. S. 919 (2019). The issues raised here are (1) whether the
APA claims are reviewable, (2) if so, whether the rescission
was arbitrary and capricious in violation of the APA, and (3)
whether the plaintiffs have stated an equal protection claim.
II
The dispute before the Court is not whether DHS may
rescind DACA. All parties agree that it may. The dispute
is instead primarily about the procedure the agency followed
in doing so.
The APA “sets forth the procedures by which federal
agencies are accountable to the public and their actions sub-
ject to review by the courts.” Franklin v. Massachusetts,
505 U. S. 788, 796 (1992). It requires agencies to engage in
“reasoned decisionmaking,” Michigan v. EPA, 576 U. S. 743,
750 (2015) (internal quotation marks omitted), and directs
that agency actions be “set aside” if they are “arbitrary”
or “capricious,” 5 U. S. C. § 706(2)(A). Under this “narrow
standard of review, . . . a court is not to substitute its judg-
ment for that of the agency,” FCC v. Fox Television Stations,
Inc., 556 U. S. 502, 513 (2009) (internal quotation marks omit-
ted), but instead to assess only whether the decision was
“based on a consideration of the relevant factors and whether
there has been a clear error of judgment,” Citizens to Pre-
serve Overton Park, Inc. v. Volpe, 401 U. S. 402, 416 (1971).
But before determining whether the rescission was arbi-
trary and capricious, we must frst address the Government's
contentions that DHS's decision is unreviewable under the
APA and outside this Court's jurisdiction.
A
The APA establishes a “basic presumption of judicial re-
view [for] one `suffering legal wrong because of agency ac-
tion.' ” Abbott Laboratories v. Gardner, 387 U. S. 136, 140

Cite
as: 591 U. S. 1 (2020)
17
Opinion of the Court
(1967) (quoting § 702). That presumption can be rebutted by
a
showing that the relevant statute “preclude[s]” review,
§ 701(a)(1), or that the “agency action is committed to agency
discretion by law,” § 701(a)(2). The latter exception is at
issue here.
To “honor the presumption of review, we have read the
exception in § 701(a)(2) quite narrowly,” Weyerhaeuser Co. v.
United States Fish and Wildlife Serv., 586 U. S. 9, 23 (2018),
confning it to those rare “administrative decision[s] tradi-
tionally left to agency discretion,” Lincoln v. Vigil, 508 U. S.
182, 191 (1993). This limited category of unreviewable ac-
tions includes an agency's decision not to institute enforce-
ment proceedings, Heckler v. Chaney, 470 U. S. 821, 831–832
(1985), and it is on that exception that the Government pri-
marily relies.
In Chaney, several death-row inmates petitioned the Food
and Drug Administration (FDA) to take enforcement action
against two States to prevent their use of certain drugs for
lethal injection. The Court held that the FDA's denial of
that petition was presumptively unreviewable in light of the
well-established “tradition” that “an agency's decision not to
prosecute or enforce” is “generally committed to an agency's
absolute discretion.” Id., at 831. We identifed a constella-
tion of reasons that underpin this tradition. To start, a non-
enforcement decision “often involves a complicated balancing
of a number of factors which are peculiarly within [the
agency's] expertise,” such as “whether the particular en-
forcement action requested best fts the agency's overall poli-
cies.” Ibid. The decision also mirrors, “to some extent,”
a prosecutor's decision not to indict, which has “long been
regarded as the special province of the Executive Branch.”
Id., at 832. And, as a practical matter, “when an agency
refuses to act” there is no action to “provide[ ] a focus for
judicial review.” Ibid.
The Government contends that a general non-enforcement
policy is equivalent to the individual non-enforcement deci-

18 DEP
ARTMENT OF HOMELAND SECURITY v.
REGENTS OF UNIV. OF CAL.
Opinion of the Court
sion at issue in Chaney. In each case, the Government
a
rg ues, the agency must ba lance fac tors pecu l iar ly
within its expertise, and does so in a manner akin to a crimi-
nal prosecutor. Building on that premise, the Government
argues that the rescission of a non-enforcement policy is no
different—for purposes of reviewability—from the adoption
of that policy. While the rescission may lead to increased
enforcement, it does not, by itself, constitute a particular en-
forcement action. Applying this logic to the facts here, the
Government submits that DACA is a non-enforcement policy
and that its rescission is therefore unreviewable.
But we need not test this chain of reasoning because
DACA is not simply a non-enforcement policy. For starters,
the DACA Memorandum did not merely “refus[e] to institute
proceedings” against a particular entity or even a particular
class. Ibid. Instead, it directed USCIS to “establish a
clear and effcient process” for identifying individuals who
met the enumerated criteria. App. to Pet. for Cert. 100a.
Based on this directive, USCIS solicited applications from
eligible aliens, instituted a standardized review process, and
sent formal notices indicating whether the alien would re-
ceive the two-year forbearance. These proceedings are ef-
fectively “adjudicat[ions].” Id., at 117a. And the result of
these adjudications—DHS's decision to “grant deferred ac-
tion,” Brief for Petitioners 45—is an “affrmative act of ap-
proval,” the very opposite of a “refus[al] to act,” Chaney, 470
U. S., at 831–832. In short, the DACA Memorandum does
not announce a passive non-enforcement policy; it created a
program for conferring affrmative immigration relief. The
creation of that program—and its rescission—is an “action
[that] provides a focus for judicial review.” Id., at 832.
The benefits attendant to deferred ac ti on prov ide
further confrmation that DACA is more than simply a non-
enforcement policy. As described above, by virtue of receiv-
ing deferred action, the 700,000 DACA recipients may re-
quest work authorization and are eligible for Social Security

Cite
as: 591 U. S. 1 (2020)
19
Opinion of the Court
and Medicare. See supra, at 10. Unlike an agency's refusal
to
take requested enforcement action, access to these types
of benefts is an interest “courts often are called upon to
protect.” Chaney, 470 U. S., at 832. See also Barnhart v.
Thomas, 540 U. S. 20 (2003) (reviewing eligibility determina-
tion for Social Security benefts).
Because the DACA program is more than a non-
enforcement policy, its rescission is subject to review under
the APA.
B
The Government also invokes two jurisdictional provisions
of the INA as independent bars to review. Neither applies.
Section 1252(b)(9) bars review of claims arising from “ac-
tion[s]” or “proceeding[s] brought to remove an alien.” 66
Stat. 209, as amended, 8 U. S. C. § 1252(b)(9). That targeted
language is not aimed at this sort of case. As we have said
before, § 1252(b)(9) “does not present a jurisdictional bar”
where those bringing suit “are not asking for review of an
order of removal,” “the decision . . . to seek removal,” or
“the process by which . . . removability will be determined.”
Jennings v. Rodriguez, 583 U. S. 281, 294–295 (2018) (plural-
ity opinion); id., at 355 (Breyer, J., dissenting). And it is
certainly not a bar where, as here, the parties are not chal-
lenging any removal proceedings.
Section 1252(g) is similarly narrow. That provision limits
review of cases “arising from” decisions “to commence pro-
ceedings, adjudicate cases, or execute removal orders. ”
§ 1252(g). We have previously rejected as “implausible” the
Government's suggestion that § 1252(g) covers “all claims
arising from deportation proceedings” or imposes “a general
jurisdictional limitation.” Reno v. American-Arab Anti-
Discrimination Comm., 525 U. S. 471, 482 (1999). The re-
scission, which revokes a deferred action program with asso-
ciated benefts, is not a decision to “commence proceedings,”
much less to “adjudicate” a case or “execute” a removal
order.

20 DEP
ARTMENT OF HOMELAND SECURITY v.
REGENTS OF UNIV. OF CAL.
Opinion of the Court
With these preliminary arguments out of the way, we pro-
ceed
to the merits.
III
A
Deciding whether agency action was adequately explained
requires, frst, knowing where to look for the agency's expla-
nation. The natural starting point here is the explanation
provided by Acting Secretary Duke when she announced the
rescission in September 2017. But the Government urges
us to go on and consider the June 2018 memorandum submit-
ted by Secretary Nielsen as well. That memo was prepared
after the D. C. District Court vacated the Duke rescission
and gave DHS an opportunity to “reissue a memorandum
rescinding DACA, this time providing a fuller explanation
for the determination that the program lacks statutory and
constitutional authority.” 298 F. Supp. 3d, at 245. Accord-
ing to the Government, the Nielsen Memorandum is properly
before us because it was invited by the District Court and
refects the views of the Secretary of Homeland Security—
the offcial responsible for immigration policy. Respondents
disagree, arguing that the Nielsen Memorandum, issued nine
months after the rescission, impermissibly asserts prudential
and policy reasons not relied upon by Duke.
It is a “foundational principle of administrative law” that
judicial review of agency action is limited to “the grounds
that the agency invoked when it took the action.” Michi-
gan, 576 U. S., at 758. If those grounds are inadequate, a
court may remand for the agency to do one of two things:
First, the agency can offer “a fuller explanation of the
agency's reasoning at the time of the agency action.” Pen-
sion Beneft Guaranty Corporation v. LTV Corp., 496 U. S.
633, 654 (1990) (emphasis added). See also Alpharma, Inc.
v. Leavitt, 460 F. 3d 1, 5–6 (CADC 2006) (Garland, J.) (per-
mitting an agency to provide an “amplifed articulation” of
a prior “conclusory” observation (internal quotation marks

Cite
as: 591 U. S. 1 (2020)
21
Opinion of the Court
omitted)). This route has important limitations. When an
agency'
s initial explanation “indicate[s] the determinative
reason for the fnal action taken,” the agency may elaborate
later on that reason (or reasons) but may not provide new
ones. Camp v. Pitts, 411 U. S. 138, 143 (1973) (per curiam).
Alternatively, the agency can “deal with the problem afresh”
by taking new agency action. SEC v. Chenery Corp., 332
U. S. 194, 201 (1947) (Chenery II). An agency taking this
route is not limited to its prior reasons but must comply with
the procedural requirements for new agency action.
The District Court's remand thus presented DHS with a
choice: rest on the Duke Memorandum while elaborating on
its prior reasoning, or issue a new rescission bolstered by
new reasons absent from the Duke Memorandum. Secre-
tary Nielsen took the frst path. Rather than making a new
decision, she “decline[d] to disturb the Duke memorandum's
rescission” and instead “provide[d] further explanation” for
that action. App. to Pet. for Cert. 121a. Indeed, the Gov-
ernment's subsequent request for reconsideration described
the Nielsen Memorandum as “additional explanation for
[Duke's] decision” and asked the District Court to “leave in
place [Duke's] September 5, 2017 decision to rescind the
DACA policy.” Motion to Revise Order in No. 17–cv–1907
etc. (D DC), pp. 2, 19. Contrary to the position of the Gov-
ernment before this Court, and of Justice Kavanaugh in
dissent, post, at 64 (opinion concurring in judgment in part
and dissenting in part), the Nielsen Memorandum was by its
own terms not a new rule implementing a new policy.
Because Secretary Nielsen chose to elaborate on the rea-
sons for the initial rescission rather than take new adminis-
trative action, she was limited to the agency's original rea-
sons, and her explanation “must be viewed critically” to
ensure that the rescission is not upheld on the basis of imper-
missible “post hoc rationalization.” Overton Park, 401 U. S.,
at 420. But despite purporting to explain the Duke Memo-
randum, Secretary Nielsen's reasoning bears little relation-

22 DEP
ARTMENT OF HOMELAND SECURITY v.
REGENTS OF UNIV. OF CAL.
Opinion of the Court
ship to that of her predecessor. Acting Secretary Duke
rested
the rescission on the conclusion that DACA is unlaw-
ful. Period. See App. to Pet. for Cert. 117a. By contrast,
Secretary Nielsen's new memorandum offered three “sepa-
rate and independently suffcient reasons” for the rescission,
id., at 122a, only the frst of which is the conclusion that
DACA is illegal.
Her second reason is that DACA is, at minimum, legally
questionable and should be terminated to maintain public
confdence in the rule of law and avoid burdensome litigation.
No such justifcation can be found in the Duke Memorandum.
Legal uncertainty is, of course, related to illegality. But the
two justifcations are meaningfully distinct, especially in this
context. While an agency might, for one reason or another,
choose to do nothing in the face of uncertainty, illegality pre-
sumably requires remedial action of some sort.
The policy reasons that Secretary Nielsen cites as a third
basis for the rescission are also nowhere to be found in the
Duke Memorandum. That document makes no mention of a
preference for legislative fxes, the superiority of case-by-
case decisionmaking, the importance of sending a message of
robust enforcement, or any other policy consideration. Nor
are these points included in the legal analysis from the Fifth
Circuit and the Attorney General. They can be viewed only
as impermissible post hoc rationalizations and thus are not
properly before us.
The Government, echoed by Justice Kavanaugh, protests
that requiring a new decision before considering Nielsen's new
justifcations would be “an idle and useless formality.”
NLRB v. Wyman-Gordon Co., 394 U. S. 759, 766, n. 6 (1969)
(plurality opinion). See also post, at 67–68. Procedural re-
quirements can often seem such. But here the rule serves
important values of administrative law. Requiring a new
decision before considering new reasons promotes “agency
accountability,” Bowen v. American Hospital Assn., 476

Cite
as: 591 U. S. 1 (2020)
23
Opinion of the Court
U. S. 610, 643 (1986), by ensuring that parties and the public
can
respond fully and in a timely manner to an agency's exer-
cise of authority. Considering only contemporaneous expla-
nations for agency action also instills confdence that the rea-
sons given are not simply “convenient litigating position[s].”
Christopher v. SmithKline Beecham Corp., 567 U. S. 142, 155
(2012) (inter na l quotati on marks omitted). Permitting
agencies to invoke belated justifcations, on the other hand,
can upset “the orderly functioning of the process of review,”
SEC v. Chenery Corp., 318 U. S. 80, 94 (1943), forcing both
litigants and courts to chase a moving target. Each of these
values would be markedly undermined were we to allow
DHS to rely on reasons offered nine months after Duke an-
nounced the rescission and after three different courts had
identifed faws in the original explanation.
Justice Kavanaugh asserts that this “foundational prin-
ciple of administrative law,” Michigan, 576 U. S., at 758, ac-
tually limits only what lawyers may argue, not what agencies
may do. Post, at 67. While it is true that the Court has often
rejected justifcations belatedly advanced by advocates, we
refer to this as a prohibition on post hoc rationalizations, not
advocate rationalizations, because the problem is the timing,
not the speaker. The functional reasons for requiring con-
temporaneous explanations apply with equal force regardless
whether post hoc justifcations are raised in court by those
appearing on behalf of the agency or by agency offcials
themselves. See American Textile Mfrs. Institute, Inc. v.
Donovan, 452 U. S. 490, 539 (1981) (“[T]he post hoc rational-
izations of the agency . . . cannot serve as a suffcient predi-
cate for agency action.”); Overton Park, 401 U. S., at 419 (re-
jecting “litigation affdavits” from agency offcials as “merely
`post hoc' rationalizations”).
3
3
Justice Kavanaugh further argues that the contemporaneous expla-
nation requirement applies only to agency adjudications, not rulemakings.
Post, at 67–68 (opinion concurring in judgment in part and dissenting in

24 DEP
ARTMENT OF HOMELAND SECURITY v.
REGENTS OF UNIV. OF CAL.
Opinion of the Court
Justice Holmes famously wrote that “[m]en must turn
s
quare cor ners when they dea l w ith the Gover nment. ”
Rock Island, A. & L. R. Co. v. United States, 254 U. S. 141,
143 (1920). But it is also true, particularly when so much is
at stake, that “the Government should turn square corners
in dealing with the people.” St. Regis Paper Co. v. United
States, 368 U. S. 208, 229 (1961) (Black, J., dissenting). The
basic rule here is clear: An agency must defend its actions
based on the reasons it gave when it acted. This is not the
case for cutting corners to allow DHS to rely upon reasons
absent from its original decision.
B
We turn, fnally, to whether DHS's decision to rescind
DACA was arbitrary and capricious. As noted earlier, Act-
ing Secretary Duke's justifcation for the rescission was
succinct: “Taking into consideration” the Fifth Circuit's con-
clusion that DAPA was unlawful because it conferred bene-
fts in violation of the INA, and the Attorney General's con-
clusion that DACA was unlawful for the same reason, she
concluded—without elaboration—that the “DACA program
should be terminated.” App. to Pet. for Cert. 117a.
4
Respondents maintain that this explanation is defcient for
three reasons. Their frst and second arguments work in
tandem, claiming that the Duke Memorandum does not ade-
part). But he cites no authority limiting this basic principle—which the
Court regularly articulates in the context of rulemakings—to adjudica-
tions. The Government does not even raise this unheralded argument.
4
The Government contends that Acting Secretary Duke also focused on
litigation risk. Although the background section of her memo references
a letter from the Texas Attorney General threatening to challenge DACA,
the memo never asserts that the rescission was intended to avert litiga-
tion. And, given the Attorney General's conclusion that the policy was
unlawful—and thus presumably could not be maintained or defended in its
current form—it is diffcult to see how the risk of litigation carried any
independent weight.

Cite
as: 591 U. S. 1 (2020)
25
Opinion of the Court
quately explain the conclusion that DACA is unlawful, and
that
this conclusion is, in any event, wrong. While those
arguments carried the day in the lower courts, in our view
they overlook an important constraint on Acting Secretary
Duke's decisionmaking authority—she was bound by the At-
torney General's legal determination.
The same statutory provision that establishes the Secre-
tary of Homeland Security's authority to administer and en-
force immigration laws limits that authority, specifying that,
with respect to “all questions of law,” the determinations
of the Attorney General “shall be controlling.” 8 U. S. C.
§ 1103(a)(1). Respondents are aware of this constraint. In-
deed they emphasized the point in the reviewability sections
of their briefs. But in their merits arguments, respondents
never addressed whether or how this unique statutory provi-
sion might affect our review. They did not discuss whether
Duke was required to explain a legal conclusion that was not
hers to make. Nor did they discuss whether the current suits
challenging Duke's rescission decision, which everyone agrees
was within her legal authority under the INA, are proper vehi-
cles for attacking the Attorney General's legal conclusion.
Because of these gaps in respondents' briefng, we do not
evaluate the claims challenging the explanation and correct-
ness of the illegality conclusion. Instead we focus our atten-
tion on respondents' third argument—that Acting Secretary
Duke “failed to consider . . . important aspect[s] of the prob-
lem” before her. Motor Vehicle Mfrs. Assn. of United
States, Inc. v. State Farm Mut. Automobile Ins. Co., 463
U. S. 29, 43 (1983).
Whether DACA is illegal is, of course, a legal determina-
tion, and therefore a question for the Attorney General.
But deciding how best to address a fnding of illegality mov-
ing forward can involve important policy choices, especially
when the fnding concerns a program with the breadth of
DACA. Those policy choices are for DHS.

26 DEP
ARTMENT OF HOMELAND SECURITY v.
REGENTS OF UNIV. OF CAL.
Opinion of the Court
Acting Secretary Duke plainly exercised such discretion-
ary
authority in winding down the program. See App. to
Pet. for Cert. 117a–118a (listing the Acting Secretary's deci-
sions on eight transition issues). Among other things, she
specifed that those DACA recipients whose benefts were
set to expire within six months were eligible for two-year
renewals. Ibid.
But Duke did not appear to appreciate the full scope of her
discretion, which picked up where the Attorney General's
legal reasoning left off. The Attorney General concluded
that “the DACA policy has the same legal . . . defects that
the courts recognized as to DAPA.” App. 878. So, to un-
derstand those defects, we look to the Fifth Circuit, the high-
est court to offer a reasoned opinion on the legality of DAPA.
That court described the “core” issue before it as the “Secre-
tary's decision” to grant “eligibility for benefts”—including
work authorization, Social Security, and Medicare—to unau-
thorized aliens on “a class-wide basis.” Texas, 809 F. 3d, at
170; see id., at 148, 184. The Fifth Circuit's focus on these
benefts was central to every stage of its analysis. See id.,
at 155 (standing); id., at 163 (zone of interest); id., at 164
(applicability of § 1252(g)); id., at 166 (reviewability); id., at
176–177 (notice and comment); id., at 184 (substantive APA).
And the court ultimately held that DAPA was “manifestly
contrary to the INA” precisely because it “would make 4.3
million otherwise removable aliens” eligible for work au-
thorization and public benefts. Id., at 181–182 (internal
quotation marks omitted).
5
5
As the Fifth Circuit noted, DAPA recipients were eligible for Social
Security and Medicare benefts because they had been designated “law-
fully present.” Texas, 809 F. 3d, at 168. Lawful presence is a statutory
prerequisite for receipt of certain benefts. See id., at 148 (citing 8
U. S. C. § 1611). It is not the same as forbearance nor does it fow inexora-
bly from forbearance. Thus, while deferred action recipients have been
designated lawfully present for purposes of Social Security and Medicare
eligibility, see 8 CFR § 1.3; 42 CFR § 417.422(h), agencies can also exclude
them from this designation, see 45 CFR § 152.2(8) (2019) (specifying that

Cite
as: 591 U. S. 1 (2020)
27
Opinion of the Court
But there is more to DAPA (and DACA) than such bene-
fts.
The defning feature of deferred action is the decision
to defer removal (and to notify the affected alien of that deci-
sion). See App. to Pet. for Cert. 99a. And the Fifth Circuit
was careful to distinguish that forbearance component from
eligibility for benefts. As it explained, the “challenged por-
tion of DAPA's deferred-action program” was the decision to
make DAPA recipients eligible for benefts. See Texas, 809
F. 3d, at 168, and n. 108. The other “[p]art of DAPA,” the
court noted, “involve[d] the Secretary's decision—at least
temporarily—not to enforce the immigration laws as to a
class of what he deem[ed] to be low-priority illegal aliens.”
Id., at 166. Borrowing from this Court's prior description
of deferred action, the Fifth Circuit observed that “the
states do not challenge the Secretary's decision to `decline to
institute proceedings, terminate proceedings, or decline to
execute a fnal order of deportation.' ” Id., at 168 (quoting
Reno, 525 U. S., at 484). And the Fifth Circuit underscored
that nothing in its decision or the preliminary injunction
“requires the Secretary to remove any alien or to alter”
the Secretary's class-based “enforcement priorities.” Texas,
809 F. 3d, at 166, 169. In other words, the Secretary's for-
bearance authority was unimpaired.
Acting Secretary Duke recognized that the Fifth Circuit's
holding addressed the benefts associated with DAPA. In
her memorandum she explained that the Fifth Circuit con-
cluded that DAPA “conficted with the discretion authorized
by Congress” because the INA “ `fatly does not permit the
reclassifcation of millions of illegal aliens as lawfully present
and thereby make them newly eligible for a host of federal
and state benefts, including work authorization.' ” App. to
Pet. for Cert. 114a (quoting Texas, 809 F. 3d, at 184). Duke
did not characterize the opinion as one about forbearance.
DACA recipients are not considered lawfully present for purposes of cov-
erage under the Affordable Care Act).

28 DEP
ARTMENT OF HOMELAND SECURITY v.
REGENTS OF UNIV. OF CAL.
Opinion of the Court
In short, the Attorney General neither addressed the for-
bearance
policy at the heart of DACA nor compelled DHS
to abandon that policy. Thus, removing benefts eligibility
while continuing forbearance remained squarely within the
discretion of Acting Secretary Duke, who was responsible
for “[e]stablishing national immigration enforcement policies
and priorities.” 116 Stat. 2178, 6 U. S. C. § 202(5). But
Duke's memo offers no reason for terminating forbearance.
She instead treated the Attorney General's conclusion re-
garding the illegality of benefts as suffcient to rescind both
benefts and forbearance, without explanation.
That reasoning repeated the error we identifed in one of
our leading modern administrative law cases, Motor Vehicle
Manufacturers Association of the United States, Inc. v.
State Farm Mutual Automobile Insurance Co. There, the
National Highway Traffc Safety Administration (NHTSA)
promulgated a requirement that motor vehicles produced
after 1982 be equipped with one of two passive restraints:
airbags or automatic seatbelts. 463 U. S., at 37–38, 46.
Four years later, before the requirement went into effect,
NHTSA concluded that automatic seatbelts, the restraint of
choice for most manufacturers, would not provide effective
protection. Based on that premise, NHTSA rescinded the
passive restraint requirement in full. Id., at 38.
We concluded that the total rescission was arbitrary and
capricious. As we explained, NHTSA's justifcation sup-
ported only “disallow[ing] compliance by means of ” auto-
matic seatbelts. Id., at 47. It did “not cast doubt” on
the “effcacy of airbag technology” or upon “the need for
a passive restraint standard. ” Ib i d. Given NHTSA's
prior judgment that “airbags are an effective and cost-
benefcial lifesaving technology,” we held that “the manda-
tory passive restraint rule [could] not be abandoned without
any consideration whatsoever of an airbags-only require-
ment.” Id., at 51.

Cite
as: 591 U. S. 1 (2020)
29
Opinion of the Court
While the factual setting is different here, the error is the
same
. Even if it is illegal for DHS to extend work authori-
zation and other benefts to DACA recipients, that conclusion
supported only “disallow[ing]” benefts. Id., at 47. It did
“not cast doubt” on the legality of forbearance or upon DHS's
original reasons for extending forbearance to childhood ar-
rivals. Ibid. Thus, given DHS's earlier judgment that for-
bearance is “especially justifed” for “productive young peo-
ple” who were brought here as children and “know only this
country as home,” App. to Pet. for Cert. 98a–99a, the DACA
Memorandum could not be rescinded in full “without any
consideration whatsoever” of a forbearance-only policy, State
Farm, 463 U. S., at 51.
6
The Government acknowledges that “[d]eferred action
coupled with the associated benefts are the two legs upon
which the DACA policy stands.” Reply Brief 21. It in-
sists, however, that “DHS was not required to consider
whether DACA's illegality could be addressed by separat-
ing ” the two. Ibid. According to the Government, “It was
not arbitrary and capricious for DHS to view deferred action
and its collateral benefts as importantly linked.” Ibid.
Perhaps. But that response misses the point. The fact
that there may be a valid reason not to separate deferred
action from benefts does not establish that DHS considered
that option or that such consideration was unnecessary.
6
The three-page memorandum that established DACA is devoted en-
tirely to forbearance, save for one sentence directing USCIS to “determine
whether [DACA recipients] qualify for work authorization.” App. to Pet.
for Cert. 101a. The benefts associated with DACA fow from a separate
regulation. See 8 CFR § 1.3(a)(4)(vi); see also 42 CFR § 417.422(h) (cross-
referencing 8 CFR § 1.3). Thus, DHS could have addressed the Attorney
General's determination that such benefts were impermissible under the
INA by amending 8 CFR § 1.3 to exclude DACA recipients from those
benefts without rescinding the DACA Memorandum and the forbearance
policy it established. But Duke's rescission memo shows no cognizance of
this possibility.

30 DEP
ARTMENT OF HOMELAND SECURITY v.
REGENTS OF UNIV. OF CAL.
Opinion of the Court
The lead dissent acknowledges that forbearance and bene-
fts
are legally distinct and can be decoupled. Post, at 59, n.
14 (opinion of Thomas, J). It contends, however, that we
should not “dissect” agency action “piece by piece.” Post,
at 58. The dissent instead rests on the Attorney General's
legal determination—which considered only benefts—“to
supply the `reasoned analysis' ” to support rescission of both
benefts and forbearance. Post, at 60 (quoting State Farm,
463 U. S., at 42). But State Farm teaches that when an
agency rescinds a prior policy its reasoned analysis must con-
sider the “alternative[s]” that are “within the ambit of the
existing [policy].” Id., at 51. Here forbearance was not
simply “within the ambit of the existing [policy],” it was
the centerpiece of the policy: DACA, after all, stands for
“Deferred Action for Childhood Arrivals.” App. to Pet.
for Cert. 111a (emphasis added). But the rescission memo-
randum contains no discussion of forbearance or the option
of retaining forbearance without benefts. Duke “entirely
failed to consider [that] important aspect of the problem.”
State Farm, 463 U. S., at 43.
That omission alone renders Acting Secretary Duke's deci-
sion arbitrary and capricious. But it is not the only defect.
Duke also failed to address whether there was “legitimate
reliance” on the DACA Memorandum. Smiley v. Citibank
(South Dakota), N. A., 517 U. S. 735, 742 (1996). When an
agency changes course, as DHS did here, it must “be cogni-
zant that longstanding policies may have `engendered serious
reliance interests that must be taken into account.' ” En-
cino Motorcars, LLC v. Navarro, 579 U. S. 211, 222 (2016)
(quoting Fox Television, 556 U. S., at 515). “It would be ar-
bitrary or capricious to ignore such matters.” Id., at 515.
Yet that is what the Duke Memorandum did.
For its part, the Government does not contend that Duke
considered potential reliance interests; it counters that she
did not need to. In the Government's view, shared by the
lead dissent, DACA recipients have no “legally cognizable

Cite
as: 591 U. S. 1 (2020)
31
Opinion of the Court
reliance interests” because the DACA Memorandum stated
that
the program “conferred no substantive rights” and pro-
vided benefts only in two-year increments. Reply Brief 16–
17; App. to Pet. for Cert. 125a. See also post, at 61 (opinion
of Thomas, J.). But neither the Government nor the lead
dissent cites any legal authority establishing that such fea-
tures automatically preclude reliance interests, and we are
not aware of any. These disclaimers are surely pertinent in
considering the strength of any reliance interests, but that
consideration must be undertaken by the agency in the frst
instance, subject to normal APA review. There was no such
consideration in the Duke Memorandum.
Respondents and their amici assert that there was much
for DHS to consider. They stress that, since 2012, DACA
recipients have “enrolled in degree programs, embarked on
careers, started businesses, purchased homes, and even mar-
ried and had children, all in reliance” on the DACA program.
Brief for Respondent Regents of Univ. of California et al. in
No. 18–587, p. 41 (Brief for Regents). The consequences of
the rescission, respondents emphasize, would “radiate out-
ward” to DACA recipients' families, including their 200,000
U. S.-citizen children, to the schools where DACA recipients
study and teach, and to the employers who have invested
time and money in training them. See id., at 41–42; Brief
for Respondent State of New York et al. in No. 18–589, p. 42
(Brief for New York). See also Brief for 143 Businesses as
Amici Curiae 17 (estimating that hiring and training re-
placements would cost employers $6.3 billion). In addition,
excluding DACA recipients from the lawful labor force may,
they tell us, result in the loss of $215 billion in economic
activity and an associated $60 billion in federal tax revenue
over the next ten years. Brief for Regents 6. Meanwhile,
States and local governments could lose $1.25 billion in tax
revenue each year. Ibid.
These are certainly noteworthy concerns, but they are not
necessarily dispositive. To the Government and lead dis-

32 DEP
ARTMENT OF HOMELAND SECURITY v.
REGENTS OF UNIV. OF CAL.
Opinion of the Court
sent's point, DHS could respond that reliance on forbearance
and
benefts was unjustifed in light of the express limita-
tions in the DACA Memorandum. Or it might conclude that
reliance interests in benefts that it views as unlawful are
entitled to no or diminished weight. And, even if DHS ulti-
mately concludes that the reliance interests rank as serious,
they are but one factor to consider. DHS may determine,
in the particular context before it, that other interests and
policy concerns outweigh any reliance interests. Making
that diffcult decision was the agency's job, but the agency
failed to do it.
DHS has considerable fexibility in carrying out its respon-
sibility. The wind-down here is a good example of the kind
of options available. Acting Secretary Duke authorized
DHS to process two-year renewals for those DACA recipi-
ents whose benefts were set to expire within six months.
But Duke's consideration was solely for the purpose of assist-
ing the agency in dealing with “administrative complexities.”
App. to Pet. for Cert. 116a–118a. She should have consid-
ered whether she had similar fexibility in addressing any
reliance interests of DACA recipients. The lead dissent
contends that accommodati ng such i nterests wou ld be
“another exercise of unlawful power,” post, at 60 (opinion of
Thomas, J.), but the Government does not make that argu-
ment and DHS has already extended benefts for purposes
other than reliance, following consultation with the Offce of
the Attorney General. App. to Pet. for Cert. 116a.
Had Duke considered reliance interests, she might, for ex-
ample, have considered a broader renewal period based on
the need for DACA recipients to reorder their affairs. Al-
ternatively, Duke might have considered more accommodat-
ing termination dates for recipients caught in the middle of
a time-bounded commitment, to allow them to, say, graduate
from their course of study, complete their military service,
or fnish a medical treatment regimen. Or she might have
instructed immigration offcials to give salient weight to any

Cite
as: 591 U. S. 1 (2020)
33
Opinion of Roberts, C. J.
reliance interests engendered by DACA when exercising in-
div
idualized enforcement discretion.
To be clear, DHS was not required to do any of this or to
“consider all policy alternatives in reaching [its] decision.”
State Farm, 463 U. S., at 51. Agencies are not compelled to
explore “every alternative device and thought conceivable by
the mind of man.” Vermont Yankee Nuclear Power Corp.
v. Natural Resources Defense Council, Inc., 435 U. S. 519,
551 (1978). But, because DHS was “not writing on a blank
slate,” post, at 59, n. 14 (opinion of Thomas, J.), it was re-
quired to assess whether there were reliance interests, de-
termine whether they were signifcant, and weigh any such
interests against competing policy concerns.
The lead dissent sees all the foregoing differently. In its
view, DACA is illegal, so any actions under DACA are them-
selves illegal. Such actions, it argues, must cease immedi-
ately and the APA should not be construed to impede that
result. See post, at 56–60 (opinion of Thomas, J.).
The dissent is correct that DACA was rescinded because
of the Attorney General's illegality determination. See
post, at 57. But nothing about that determination fore-
closed or even addressed the options of retaining forbearance
or accommodating particular reliance interests. Acting Sec-
retary Duke should have considered those matters but did
not. That failure was arbitrary and capricious in violation
of the APA.
IV
Lastly, we turn to respondents' claim that the rescission
v i olates the equa l protec ti on g uarantee of the Fi f th
Amendment.
The parties dispute the proper framing of this claim. The
Government contends that the allegation that the Executive,
motivated by animus, ended a program that disproportion-
ately benefts certain ethnic groups is a selective enforce-
ment claim. Such a claim, the Government asserts, is
barred by our decision in Reno v. American-Arab Anti-

34 DEP
ARTMENT OF HOMELAND SECURITY v.
REGENTS OF UNIV. OF CAL.
Opinion of Roberts, C. J.
Discrimination Committee. See 525 U. S., at 488 (holding
that
“an alien unlawfully in this country has no constitutional
right to assert selective enforcement as a defense against his
deportation”). Respondents counter that their claim falls
outside the scope of that precedent because they are not
challenging individual enforcement proceedings. We need
not resolve this debate because, even if the claim is cogniza-
ble, the allegations here are insuffcient.
To plead animus, a plaintiff must raise a plausible inference
that an “invidious discriminatory purpose was a motivating
factor” in the relevant decision. Arlington Heights v. Met-
ropolitan Housing Development Corp., 429 U. S. 252, 266
(1977). Possible evidence includes disparate impact on a
particular group, “[d]epartures from the normal procedural
sequence,” and “contemporary statements by members of
the decisionmaking body.” Id., at 266–268. Tracking these
factors, respondents allege that animus is evidenced by (1)
the disparate impact of the rescission on Latinos from Mex-
ico, who represent 78% of DACA recipients; (2) the unusual
history behind the rescission; and (3) pre- and post-election
statements by President Trump. Brief for New York 54–55.
None of these points, either singly or in concert, estab-
lishes a plausible equal protection claim. First, because
Latinos make up a large share of the unauthorized alien
population, one would expect them to make up an outsized
share of recipients of any cross-cutting immigration relief
program. See B. Baker, DHS, Offce of Immigration Statis-
tics, Population Estimates, Illegal Alien Population Residing
in the United States: January 2015, Table 2 (Dec. 2018),
https://www.dhs.gov/sites/default/files/publications/18_1214_
PLCY_pops-est-report.pdf. Were this fact sufficient to
state a claim, virtually any generally applicable immigration
policy could be challenged on equal protection grounds.
Second, there is nothing irregular about the history lead-
ing up to the September 2017 rescission. The lower courts
concluded that “DACA received reaffrmation by [DHS] as

Cite
as: 591 U. S. 1 (2020)
35
Opinion of the Court
recently as three months before the rescission,” 908 F. 3d, at
519
(quoting 298 F. Supp. 3d, at 1315), referring to the June
2017 DAPA rescission memo, which stated that DACA would
“remain in effect,” App. 870. But this reasoning confuses
abstention with reaffrmation. The DAPA memo did not ad-
dress the merits of the DACA policy or its legality. Thus,
when the Attorney General later determined that DACA
shared DAPA's legal defects, DHS's decision to reevaluate
DACA was not a “strange about-face.” 908 F. 3d, at 519.
It was a natural response to a newly identifed problem.
Finally, the cited statements are unilluminating. The rel-
evant actors were most directly Acting Secretary Duke and
the Attorney General. As the Batalla Vidal court acknowl-
edged, respondents did not “identif[y] statements by [either]
that would give rise to an inference of discriminatory mo-
tive.” 291 F. Supp. 3d, at 278. Instead, respondents con-
tend that President Trump made critical statements about
Latinos that evince discriminatory intent. But, even as in-
terpreted by respondents, these statements—remote in time
and made in unrelated contexts—do not qualify as “contem-
porary statements” probative of the decision at issue. Ar-
lington Heights, 429 U. S., at 268. Thus, like respondents'
other points, the statements fail to raise a plausible inference
that the rescission was motivated by animus.
***
We do not decide whether DACA or its rescission are
sound policies. “The wisdom” of those decisions “is none of
our concern.” Chenery II, 332 U. S., at 207. We address
only whether the agency complied with the procedural re-
quirement that it provide a reasoned explanation for its ac-
tion. Here the agency failed to consider the conspicuous is-
sues of whether to retain forbearance and what if anything
to do about the hardship to DACA recipients. That dual
failure raises doubts about whether the agency appreciated
the scope of its discretion or exercised that discretion in a

36 DEP
ARTMENT OF HOMELAND SECURITY v.
REGENTS OF UNIV. OF CAL.
Opinion of Sotomayor, J.
reasonable manner. The appropriate recourse is therefore
to
remand to DHS so that it may consider the problem anew.
The judgment in NAACP, No. 18–588, is affrmed.
7
The
judgment in Regents, No. 18–587, is vacated in part and re-
versed in part. And in Batalla Vidal, No. 18–589, the Feb-
ruary 13, 2018 order granting respondents' motion for a pre-
liminary injunction is vacated, the November 9, 2017 order
partially denying the Government's motion to dismiss is af-
frmed in part, and the March 29, 2018 order partially deny-
ing the balance of the Government's motion to dismiss is
reversed in part. All three cases are remanded for further
proceedings consistent with this opinion.
It is so ordered.
Justice Sotomayor, concurring in part, concurring in the
judgment in part, and dissenting in part.
The majority rightly holds that the Department of Home-
land Security (DHS) violated the Administrative Procedure
Act in rescinding the Deferred Action for Childhood Arrivals
(DACA) program. But the Court forecloses any challenge
to the rescission under the Equal Protection Clause. I be-
lieve that determination is unwarranted on the existing rec-
ord and premature at this stage of the litigation. I would
instead permit respondents to develop their equal protection
claims on remand.
Respondents' equal protection challenges come to us in a
preliminary posture. All that respondents needed to do at
this stage of the litigation was state suffcient facts that
would “allo[w a] court to draw the reasonable inference that
[a] defendant is liable for the misconduct alleged.” Ashcroft
v. Iqbal, 556 U. S. 662, 678 (2009). The three courts to evalu-
ate respondents' pleadings below held that they cleared this
modest threshold. 908 F. 3d 476, 518–520 (CA9 2018) (af-
7
Our affrmance of the NAACP order vacating the rescission makes
it unnecessary to examine the propriety of the nationwide scope of the
injunctions issued by the District Courts in Regents and Batalla Vidal.

Cite
as: 591 U. S. 1 (2020)
37
Opinion of Sotomayor, J.
frming the District Court's denial of the Government's mo-
ti
on to dismiss); see also Batalla Vidal v. Nielsen, 291 F.
Supp. 3d 260, 274 (EDNY 2018).
I too would permit respondents' claims to proceed on re-
mand. The complaints each set forth particularized facts
that plausibly allege discriminatory animus. The plurality
disagrees, reasoning that “[n]one of these points, either sin-
gly or in concert, establishes a plausible equal protection
claim.” Ante, at 34. But it reaches that conclusion by dis-
counting some allegations altogether and by narrowly view-
ing the rest.
First, the plurality dismisses the statements that Presi-
dent Trump made both before and after he assumed offce.
The Ba ta ll a Vi da l complai nts cat a log then-candidate
Trump's declarations that Mexican immigrants are “people
that have lots of problems,” “the bad ones,” and “criminals,
drug dealers, [and] rapists.” 291 F. Supp. 3d, at 276 (inter-
nal quotation marks omitted). The Regents complaints ad-
ditionally quote President Trump's 2017 statement compar-
ing undocumented immigrants to “animals” responsible for
“the drugs, the gangs, the cartels, the crisis of smuggling
and traffcking, [and] MS 13.” 298 F. Supp. 3d 1304, 1314
(ND Cal. 2018) (internal quotation marks omitted). The
plurality brushes these aside as “unilluminating,” “remote in
time,” and having been “made in unrelated contexts.” Ante,
at 35.
But “nothing in our precedent supports [the] blinkered
approach” of disregarding any of the campaign statements
as remote in time from later-enacted policies. Trump v.
Hawaii, 585 U. S. 667, 738, n. 3 (2018) (Sotomayor, J., dis-
senting). Nor did any of the statements arise in unrelated
contexts. They bear on unlawful migration from Mexico—a
keystone of President Trump's campaign and a policy prior-
ity of his administration—and, according to respondents,
were an animating force behind the rescission of DACA. Cf.
ibid. (noting that Presidential Proclamation No. 9645, 82 Fed.

38 DEP
ARTMENT OF HOMELAND SECURITY v.
REGENTS OF UNIV. OF CAL.
Opinion of Sotomayor, J.
Reg. 45161 (2017), which barred entry of individuals from
se
veral Muslim-majority countries, was an outgrowth of the
President's campaign statements about Muslims). Taken to-
gether, “the words of the President” help to “create the
strong perception” that the rescission decision was “contami-
nated by impermissible discriminatory animus.” 585 U. S.,
at 739–740 (opinion of Sotomayor, J.). This perception pro-
vides respondents with grounds to litigate their equal pro-
tection claims further.
Next, the plurality minimizes the disproportionate impact
of the rescission decision on Latinos after considering this
point in isolation. Ante, at 34 (“Were this fact suffcient to
state a claim, virtually any generally applicable immigration
policy could be challenged on equal protection grounds”).
But the impact of the policy decision must be viewed in
the context of the President's public statements on and off
the campaign trail. At the motion-to-dismiss stage, I would
not so readily dismiss the allegation that an executive deci-
sion disproportionately harms the same racial group that
the President branded as less desirable mere months
earlier.
Finally, the plurality fnds nothing untoward in the “spe-
cifc sequence of events leading up to the challenged deci-
sion.” Arlington Heights v. Metropolitan Housing Devel-
opment Corp., 429 U. S. 252, 267 (1977). I disagree. As late
as June 2017, DHS insisted it remained committed to DACA,
even while rescinding a related program, the Deferred Ac-
tion for Parents of Americans and Lawful Permanent Resi-
dents. App. 718–720. But a mere three months later, DHS
terminated DACA without, as the plurality acknowledges,
considering important aspects of the termination. The
abrupt change in position plausibly suggests that something
other than questions about the legality of DACA motivated
the rescission decision. Accordingly, it raises the possibility
of a “signifcant mismatch between the decision . . . made and
the rationale . . . provided.” Department of Commerce v.

Cite
as: 591 U. S. 1 (2020)
39
Opinion of Thomas, J.
New York, 588 U. S. 752, 783 (2019). Only by bypassing con-
text
does the plurality conclude otherwise.
***
The facts in respondents' complaints create more than a
“sheer possibility that a defendant has acted unlawfully.”
Iqbal, 556 U. S., at 678. Whether they ultimately amount
to actionable discrimination should be determined only after
factual development on remand. Because the Court prema-
turely disposes of respondents' equal protection claims by
overlooking the strength of their complaints, I join all but
Part IV of the opinion and do not concur in the correspond-
ing part of the judgment.
Justice Thomas, with whom Justice Alito and Justice
Gorsuch join, concurring in the judgment in part and dis-
senting in part.
Between 2001 and 2011, Congress considered over two
dozen bills that would have granted lawful status to millions
of aliens who were illegally brought to this country as chil-
dren. Each of those legislative efforts failed. In the wake
of th is impasse, the Depar tment of Homeland Secur ity
(DHS) under President Barack Obama took matters into its
own hands. Without any purported delegation of authority
from Congress and without undertaking a rulemaking, DHS
unilaterally created a program known as Deferred Action
for Childhood Arrivals (DACA). The three-page DACA
memorandum made it possible for approximately 1.7 million
illegal aliens to qualify for temporary lawful presence and
certain federal and state benefts. When President Donald
Trump took offce in 2017, his Acting Secretary of Home-
land Security, acting through yet another memorandum,
rescinded the DACA memorandum. To state it plainly,
the Trump administration rescinded DACA the same way
that the Obama administration created it: unilaterally, and
through a mere memorandum.

40 DEP
ARTMENT OF HOMELAND SECURITY v.
REGENTS OF UNIV. OF CAL.
Opinion of Thomas, J.
Today the majority makes the mystifying determination
that
this rescission of DACA was unlawful. In reaching
that conclusion, the majority acts as though it is engaging in
the routine application of standard principles of administra-
tive law. On the contrary, this is anything but a standard
administrative law case.
DHS created DACA during the Obama administration
w ithout any statutory author izati on and w ithout going
through the requisite rulemaking process. As a result, the
program was unlawful from its inception. The majority
does not even attempt to explain why a court has the author-
ity to scrutinize an agency's policy reasons for rescinding an
unlawful program under the arbitrary and capricious micro-
scope. The decision to countermand an unlawful agency ac-
tion is clearly reasonable. So long as the agency's determi-
nation of illegality is sound, our review should be at an end.
Today's decision must be recognized for what it is: an ef-
fort to avoid a politically controversial but legally correct
decision. The Court could have made clear that the solution
respondents seek must come from the Legislative Branch.
Instead, the majority has decided to prolong DHS' initial
overreach by providing a stopgap measure of its own. In
doing so, it has given the green light for future political bat-
tles to be fought in this Court rather than where they right-
fully belong—the political branches. Such timidity forsakes
the Court's duty to apply the law according to neutral princi-
ples, and the ripple effects of the majority's error will be felt
throughout our system of self-government.
Perhaps even more unfortunately, the majority's holding
creates perverse incentives, particularly for outgoing admin-
istrations. Under the auspices of today's decision, adminis-
trations can bind their successors by unlawfully adopting sig-
nifcant legal changes through Executive Branch agency
memoranda. Even if the agency lacked authority to effectu-
ate the changes, the changes cannot be undone by the same
agency in a successor administration unless the successor

Cite
as: 591 U. S. 1 (2020)
41
Opinion of Thomas, J.
provides suffcient policy justifcations to the satisfaction of
th
is Court. In other words, the majority erroneously holds
that the agency is not only permitted, but required, to con-
tinue administering unlawful programs that it inherited from
a previous administration. I respectfully dissent in part.
1
I
A
In 2012, after more than two dozen attempts by Congress
to grant lawful status to aliens who were brought to this
country as children,
2
the then-Secretary of Homeland Secu-
rity Janet Napolitano announced, by memorandum, a new
“prosecutorial discretion” policy known as DACA. App. to
Pet. for Cert. in No. 18–587, p. 97a. The memorandum di-
rected immigration enforcement offcers not to remove “cer-
tain young people who were brought to this country as chil-
1
I concur in the judgment insofar as the majority rejects respondents'
equal protection claim.
2
See Immigrant Children's Educational Advancement and Dropout Pre-
vention Act of 2001, H. R. 1582, 107th Cong., 1st Sess.; Student Adjustment
Act of 2001, H. R. 1918, 107th Cong., 1st Sess.; DREAM Act, S. 1291, 107th
Cong., 1st Sess. (2001); DREAM Act, S. 1545, 108th Cong., 1st Sess. (2003);
Student Adjustment Act of 2003, H. R. 1684, 108th Cong., 1st Sess.;
DREAM Act, S. 2863, 108th Cong., 2d Sess., Tit. XVIII (2003); DREAM
Act of 2005, S. 2075, 109th Cong., 1st Sess.; Comprehensive Immigration
Reform Act of 2006, S. 2611, 109th Cong., 2d Sess., Tit. VI, Subtitle C;
American Dream Act, H. R. 5131, 109th Cong., 2d Sess. (2006); DREAM
Act of 2007, S. 774, 110th Cong., 1st Sess.; DREAM Act of 2007, S. 2205,
110th Cong., 1st Sess.; STRIVE Act of 2007, H. R. 1645, 110th Cong., 1st
Sess., Tit. VI, Subtitle B; Comprehensive Immigration Reform Act of 2007,
S. 1348, 110th Cong., 1st Sess., Tit. VI, Subtitle C; DREAM Act of 2009,
S. 729, 111th Cong., 1st Sess.; American Dream Act, H. R. 1751, 111th
Cong., 1st Sess.; Comprehensive Immigration Reform Act of 2010, S. 3932,
111th Cong., 2d Sess., Tit. V, Subtitle D; DREAM Act of 2010, S. 3827,
111th Cong., 2d Sess.; DREAM Act of 2010, S. 3962, 111th Cong., 2d Sess.;
DREAM Act of 2010, S. 3963, 111th Cong., 2d Sess.; DREAM Act of 2010,
S. 3992, 111th Cong., 2d Sess.; DREAM Act of 2010, H. R. 6497, 111th
Cong., 2d Sess.; DREAM Act of 2011, S. 952, 112th Cong., 1st Sess.

42 DEP
ARTMENT OF HOMELAND SECURITY v.
REGENTS OF UNIV. OF CAL.
Opinion of Thomas, J.
dren” that met delineated criteria. Id., at 97a–98a. In the
Secret
ary's view, the program was consistent with “the
framework of the existing law.” Id., at 101a.
DACA granted a renewable 2-year period of “deferred ac-
tion” that made approximately 1.7 million otherwise remov-
able aliens eligible to remain in this country temporarily.
3
By granting deferred action, the memorandum also made
recipients eligible for certain state and federal benefts,
including Medicare and Social Security. See 8 U. S. C.
§§ 1611( b)(2)–(4); 8 CFR § 1.3(a)(4)(v i) (2020); 45 CFR
§ 152.2(4)(vi) (2019). In addition, deferred action enabled
the recipients to seek work author i zati on. 8 U. S. C.
§ 1324a( h)(3)(B); 8 CFR § 274a.12(c)(14). Despite these
changes, the memorandum contradictorily claimed that it
“confer[red] no substantive right [or] immigration status,”
because “[o]nly the Congress, acting through its legislative
authority, can confer these rights.” App. to Pet. for Cert.
in No. 18–587, at 101a.
In 2014, then-Secretary of Homeland Security Jeh Johnson
broadened the deferred-action program in yet another brief
memorandum. This 2014 memorandum expanded DACA el-
igibility by extending the deferred-action period to three
years and by relaxing other criteria. It also implemented
a related program, known as Deferred Action for Parents
of Americans and Lawful Permanent Residents (DAPA).
DAPA allowed unlawfully present parents to obtain deferred
action derivatively through their children who were either
citizens or lawful permanent residents. Approximately 4.3
million aliens qualifed for DAPA and, as with DACA, these
individuals would have become eligible for certain federal
and state benefts upon the approval of their DAPA applica-
tions. See Texas v. United States, 809 F. 3d 134, 181 (CA5
3
See J. Passel & M. Lopez, Pew Research Center, Up to 1.7 Million
Unauthorized Immigrant Youth May Benefit From New Deportation
Rules (Aug. 14, 2012).

Cite
as: 591 U. S. 1 (2020)
43
Opinion of Thomas, J.
2015). Nevertheless, the 2014 memorandum repeated the
i
ncongruous assertion that these programs “d[id] not confer
any form of legal status in this country” and added that de-
ferred action “may be terminated at any time at the agency's
discretion.” App. to Pet. for Cert. in No. 18–587, at 104a.
B
Twenty-six States fled suit to enjoin the implementation
of these new programs, DAPA and “expanded DACA,” main-
taining that they violated the Constitution, the Administra-
tive Procedure Act (APA), and the Immigration and Natural-
ization Act (INA). The States contended that, because the
2014 memorandum allowed aliens to receive deferred action
and other benefts, it amounted to a legislative rule that had
to comply with the APA's notice and comment procedures.
The States also argued that DHS' decision to recategorize an
entire class of aliens from “unlawfully present” to “lawfully
present” exceeded its statutory authority under the federal
immigration laws. According to the States, these defects
rendered the 2014 memorandum arbitrary, capricious, or oth-
erwise not in accordance with law.
The District Court preliminarily enjoined DAPA and ex-
panded DACA. The Fifth Circuit affrmed, rejecting DHS'
claim that the programs were an exercise of prosecutorial
discretion. Texas, 809 F. 3d, at 167, 188. The court con-
cluded that the States were likely to succeed on their claim
that the 2014 memorandum was a legislative rule that had
to be adopted through notice and comment rulemaking. Id.,
at 171–178. The court further concluded that the 2014 mem-
orandum was “substantively contrary to law” because the
INA did not grant DHS the statutory authority to imple-
ment either program. Id., at 170, 178–186.
This Court affrmed the Fifth Circuit's judgment by an
equally divided vote. United States v. Texas, 579 U. S. 547
(2016) (per curiam).

44 DEP
ARTMENT OF HOMELAND SECURITY v.
REGENTS OF UNIV. OF CAL.
Opinion of Thomas, J.
C
The
2014 memorandum was rescinded on June 15, 2017,
before taking effect. Shortly after that rescission, several
of the plaintiff States sent a letter to then-Attorney General
Jefferson Sessi ons III. They contended that the 2012
DACA memorandum was also legally defective because,
“just like DAPA, DACA unilaterally confers eligibility for
. . . lawful presence without any statutory authorization from
Congress.” App. 873. The States wrote that they would
amend their complaint to challenge DACA if the administra-
tion did not rescind the 2012 memorandum creating DACA
by September 5, 2017.
On September 4, then-Attorney General Sessions wrote to
then-Acting Secretary of Homeland Security Elaine Duke,
advising her to rescind DACA. Sessions stated that, in his
legal opinion, DACA took effect “through executive action,
without proper statutory authority and with no established
end-date, after Congress' repeated rejection of proposed leg-
islation that would have accomplished a similar result. Such
an open-ended circumvention of immigration laws was an
unconstitutional exercise of authority by the Executive
Branch.” Id., at 877. The letter also stated that DACA
was infected with the “same legal . . . defects that the courts
recognized as to DAPA,” id., at 878, and thus DACA would
likely be enjoined as well.
Then-Acting Secretary Duke rescinded DACA the next
day, also through a memorandum. Her memorandum began
by noting that DACA “purported to use deferred action . . .
to confer certain benefts to illegal aliens that Congress had
not otherwise acted to provide by law.” App. to Pet. for
Cert. in No. 18–587, at 112a. It described the history of the
Fifth Circuit litigation, noting that the court had concluded
that DAPA “conficted with the discretion authorized by
Congress” because “the [INA] fatly does not permit the re-
classifcation of millions of illegal aliens as lawfully present.”
Id., at 114a (internal quotation marks omitted). Finally, the

Cite
as: 591 U. S. 1 (2020)
45
Opinion of Thomas, J.
memorandum accepted then-Attorney General Sessions'
lega
l determination that DACA was unlawful for the same
reasons as DAPA. See § 1103(a)(1). In light of the legal
conclusions reached by the Fifth Circuit and the Attorney
General, then-Acting Secretary Duke set forth the proce-
dures for winding down DACA.
These three cases soon followed. In each, respondents
claimed, among other things, that DACA's rescission was ar-
bitrary and capricious under the APA. Two District Courts
granted a preliminary nationwide injunction, while the third
vacated the rescission.
II
“ `[A]n agency literally has no power to act . . . unless and
until Congress confers power upon it.' ” Arlington v. FCC,
569 U. S. 290, 317 (2013) (Roberts, C. J., dissenting) (quot-
ing Louisiana Pub. Serv. Comm'n v. FCC, 476 U. S. 355,
374 (1986)). When an agency exercises power beyond the
bounds of its authority, it acts unlawfully. See, e. g., SAS
Institute Inc. v. Iancu, 584 U. S. 357, 368, n. (2018). The
2012 memorandum creating DACA provides a poignant illus-
tration of ultra vires agency action.
DACA alters how the immigration laws apply to a certain
class of aliens. “DACA [recipients] primarily entered the
country either by overstaying a visa or by entering without
inspection, and the INA instructs that aliens in both classes
are removable.” Texas v. United States, 328 F. Supp. 3d 662,
713 (SD Tex. 2018) (footnote omitted). But DACA granted
its recipients deferred action, i. e., a decision to “decline to
institute [removal] proceedings, terminate [removal] pro-
ceedings, or decline to execute a fnal order of [removal].”
Reno v. American-Arab Anti-Discrimination Comm., 525
U. S. 471, 484 (1999) (internal quotation marks omitted).
Under other regulations, recipients of deferred action are
deemed lawfully present for purposes of certain federal ben-
efts. See supra, at 42. Thus, DACA in effect created a new
exception to the statutory provisions governing removability

46 DEP
ARTMENT OF HOMELAND SECURITY v.
REGENTS OF UNIV. OF CAL.
Opinion of Thomas, J.
and, in the process, conferred lawful presence on an entire
class
of aliens.
To lawfully implement such changes, DHS needed a grant
of authority from Congress to either reclassify removable
DACA recipients as lawfully present, or to exempt the entire
class of aliens covered by DACA from statutory removal pro-
cedures. No party disputes that the immigration statutes
lack an express delegation to accomplish either result. And,
an examination of the highly reticulated immigration regime
makes clear that DHS has no implicit discretion to create
new classes of lawful presence or to grant relief from re-
moval out of whole cloth. Accordingly, DACA is substan-
tively unlawful.
This conclusion should begin and end our review. The de-
cision to rescind an unlawful agency action is per se lawful.
No additional policy justifcations or considerations are nec-
essary. And, the major ity's contrary holding—that an
agency is not only permitted, but required, to continue an
ultra vires action—has no basis in law.
A
Congress has not authorized DHS to reclassify an entire
class of removable aliens as lawfully present or to categori-
cally exempt aliens from statutory removal provisions.
1
I begin with lawful presence. As just stated, nothing in
the federal immigration laws expressly delegates to DHS the
unfettered discretion to create new categories of lawfully
present aliens. And, there is no basis for concluding that
Congress implicitly delegated to DHS the power to reclassify
categories of aliens as lawfully present. The immigration
statutes provide numerous ways to obtain lawful presence,
both temporary and permanent. The highly detailed nature
of these provisions indicates that Congress has exhaustively

Cite
as: 591 U. S. 1 (2020)
47
Opinion of Thomas, J.
provided for all of the ways that it thought lawful presence
shou
ld be obtainable, leaving no discretion to DHS to add
new pathways.
For example, federal immigration laws provide over 60
temporary nonimmigrant visa options, including visas for
ambassadors, full-time students and their spouses and chil-
dren, those engaged to marry a United States citizen within
90 days of arrival, athletes and performers, and aliens with
specialized knowledge related to their employers. See
§§ 1101(a)(15)(A)–(V), 1184; 8 CFR § 214.1; see also Congres-
sional Research Service, J. Wilson, Nonimmigrant and Immi-
grant Visa Categories: Data Brief 1–6 (2019) (Table 1). In
addition, the statutes permit the Attorney General to grant
temporary “parole” into the United States “for urgent hu-
manitarian reasons or [a] signifcant public beneft,” 8 U. S. C.
§ 1182(d)(5)(A); provide for temporary protected status when
the Attorney General fnds that removal to a country with
an ongoing armed confict “would pose a serious threat to
[an alien's] personal safety,” § 1254a(b)(1)(A); and allow the
Secretary of Homeland Security (in consultation with the
Secretary of State) to waive visa requirements for certain
aliens for up to 90 days, §§ 1187(a)–(d).
The immigration laws are equally complex and detailed
when it comes to obtaining lawful permanent residence.
Congress has expressly specifed numerous avenues for ob-
taining an immigrant visa, which aliens may then use to be-
come lawful permanent residents. §§ 1201, 1255(a). Among
other categories, immigrant visas are available to specifed
family-sponsored aliens, aliens with advanced degrees or
exceptional abilities, certain types of skilled and unskilled
workers, “specia l i mmigrants, ” and those enter ing the
country to “engag[e] in a new commercial enterprise.”
§§ 1153(a)–(b), 1154; see also Congressional Research Serv-
ice, Nonimmigrant and Immigrant Visa Categories, at 6–7
(Table 2). Refugees and asylees also may receive lawful

48 DEP
ARTMENT OF HOMELAND SECURITY v.
REGENTS OF UNIV. OF CAL.
Opinion of Thomas, J.
permanent residence under certain conditions, § 1159; 8 CFR
§§
209.1, 209.2.
4
As with temporary lawful presence, each
avenue to lawful permanent residence status has its own set
of rules and exceptions.
5
As the Fifth Circuit held in the DAPA litigation, a conclu-
sion with which then-Attorney General Sessions agreed,
“specifc and detailed provisions [of] the INA expressly and
carefu lly provid[e] lega l desig nati ons a llow ing defined
classes of aliens to be lawfully present.” Texas, 809 F. 3d,
at 179. In light of this elaborate statutory scheme, the lack
of any similar provision for DACA recipients convincingly
establishes that Congress left DHS with no discretion to cre-
ate an additional class of aliens eligible for lawful presence.
Congress knows well how to provide broad discretion, and it
has provided open-ended delegations of authority in statutes
too numerous to name. But when it comes to lawful pres-
ence, Congress did something strikingly different. Instead
of enacting a statute with “broad general directives” and
leaving it to the agency to fll in the lion's share of the details,
Mistretta v. United States, 488 U. S. 361, 372 (1989), Con-
gress put in place intricate specifcations governing eligibil-
ity for lawful presence. This comprehensive scheme indi-
cates that DHS has no discretion to supplement or amend
the statutory provisions in any manner, least of all by memo-
randum. See FDA v. Brown & Williamson Tobacco Corp.,
529 U. S. 120, 125 (2000) (An agency “may not exercise its
authority in a manner that is inconsistent with the adminis-
trative structure that Congress enacted” (internal quotation
4
The immigration statutes also provide for conditional lawful permanent
residence status. See § 1186a(b)(1)(A)(i) (two years for spouses to demon-
strate that the marriage “was [not] entered into for the purpose of procur-
ing an alien's admission as an immigrant”); § 1186b (qualifying business
entrepreneurs).
5
For instance, Congress has carved out rules for aliens who served in
the Armed Forces, §§ 1438–1440, and alien spouses who have been subject
to domestic abuse, §§ 1186a(c)(4)(C)–(D).

Cite
as: 591 U. S. 1 (2020)
49
Opinion of Thomas, J.
marks omitted)); see also ETSI Pipeline Project v. Missouri,
484
U. S. 495, 509–510 (1988).
2
The relief that Congress has extended to removable aliens
likewise confrms that DACA exceeds DHS' delegated au-
thority. Through deferred action, DACA grants temporary
relief to removable aliens on a programmatic scale. See
Texas, 328 F. Supp. 3d, at 714. But as with lawful presence,
Congress did not expressly grant DHS the authority to cre-
ate categorical exceptions to the statute's removal require-
ments. And again, as with lawful presence, the intricate
level of detail in the federal immigration laws regarding re-
lief from removal indicates that DHS has no discretionary
authority to supplement that relief with an entirely new pro-
grammatic exemption.
At the outset, Congress clearly knows how to provide for
classwide deferred action when it wishes to do so. On multi-
ple occasions, Congress has used express language to make
certain classes of individuals eligible for deferred action.
See 8 U. S. C. §§ 1154(a)(1)(D)(i)(II), (IV) (certain individuals
covered under the Violence Against Women Act are “eligible
for deferred action”); Victims of Traffcking and Violence
Protection Act of 2000, 114 Stat. 1522 (“ `Any individual de-
scribed in subclause (I) is eligible for deferred action' ”);
Uniting and Strengthening America by Providing Appro-
priate Tools Required to Intercept and Obstruct Terrorism
(USA PATRIOT ACT) Act of 2001, § 423(b), 115 Stat. 361
(“Such spouse, child, son, or daughter may be eligible for
deferred action”); National Defense Authorization Act for
Fiscal Year 2004, §§ 1703(c)(1)(A), (2), 117 Stat. 1694–1695
(“Such spouse or child shall be eligible for deferred action”).
6
6
In the DAPA litigation, DHS noted that some deferred-action pro-
grams have been implemented by the Executive Branch without explicit
legislation. But “ `[p]ast practice does not, by itself, create [executive]
power.' ” Medellín v. Texas, 552 U. S. 491, 532 (2008) (quoting Dames &

50 DEP
ARTMENT OF HOMELAND SECURITY v.
REGENTS OF UNIV. OF CAL.
Opinion of Thomas, J.
Congress has failed to provide similar explicit provisions for
D
ACA recipients, and the immigration laws contain no indi-
cation that DHS can, at will, create its own categorical poli-
cies for deferred action.
Other provisions pertaining to relief from removal further
demonstrate that DHS lacked the delegated authority to cre-
ate DACA. As with lawful presence, Congress has provided
a plethora of methods by which aliens may seek relief from
removal. For instance, both permanent and temporary resi-
dents can seek cancellation of removal if they meet certain
residency requirements and have not committed certain
crimes. §§ 1229b(a)–(b). And certain nonpermanent resi-
dents may have their status adjusted to permanent residence
during these proceedings. § 1229b(b)(2). Aliens can apply
for asylum or withholding of removal during removal pro-
ceedi ngs unless they have committed cer t ai n cr i mes.
§§ 1158, 1231(b)(3). Applicants for certain nonimmigrant
visas may be granted a stay of removal until the visa appli-
cation is adjudicated. § 1227(d). And, aliens may voluntar-
ily depart rather than be subject to an order of removal.
§ 1229c.
In sum, like lawful presence, Congress has provided
for rel ief from remova l i n speci fic and complex ways.
This nuanced detail indicates that Congress has provided
the full panoply of methods it thinks should be available
for an alien to seek relief from removal, leaving no discre-
Moore v. Regan, 453 U. S. 654, 686 (1981)). If any of these programs had
been challenged, it would seem that they would be legally infrm for the
same reasons as DACA. Moreover, if DHS had the authority to create
new categories of aliens eligible for deferred action, then all of Congress'
deferred-action legislation was but a superfuous exercise. Duncan v.
Walker, 533 U. S. 167, 174 (2001). Finally, whereas some deferred-action
programs were followed by legislation, DACA has existed for eight years,
and Congress is no closer to a legislative solution than it was in 2012.
See, e. g., American Dream and Promise Act of 2019, H. R. 6, 116th Cong.,
1st Sess.

Cite
as: 591 U. S. 1 (2020)
51
Opinion of Thomas, J.
tion to DHS to provide additional programmatic forms of
rel
ief.
7
3
Finally, DHS could not appeal to general grants of author-
ity, such as the Secretary's ability to “perform such other
acts as he deems necessary for carrying out his authority
under the provisions of this chapter,” § 1103(a)(3), or to “[e]s-
tablis[h] national immigration enforcement policies and pri-
orities,” 6 U. S. C. § 202(5). See also 8 U. S. C. § 1103(g)(2).
Because we must interpret the statutes “as a symmetrical
and coherent regulatory scheme,” Gustafson v. Alloyd Co.,
513 U. S. 561, 569 (1995), these grants of authority must be
read alongside the express limits contained within the stat-
ute. Basing the Secretary's ability to completely overhaul
immigration law on these general grants of authority would
eviscerate that deliberate statutory scheme by “allow[ing the
Secretary of DHS] to grant lawful presence . . . to any illegal
alien in the United States.” Texas, 809 F. 3d, at 184. Not
only is this “an untenable position in light of the INA's intri-
cate system,” ibid., but it would also render many of those
provisions wholly superfuous due to DHS' authority to dis-
regard them at will, Duncan v. Walker, 533 U. S. 167, 174
(2001). And in addition to these fatal problems, adopting a
broad interpretation of these general grants of authority
would run afoul of the presumption that “Congress . . . does
not alter the fundamental details of a regulatory scheme in
vague terms or ancillary provisions.” Whitman v. Ameri-
can Trucking Assns., Inc., 531 U. S. 457, 468 (2001). And it
7
It is uncontested that deferred action frequently occurs on a case-by-
case basis, often justifed on the grounds that the agency lacks resources
to remove all removable aliens. Even assuming that these ad hoc exer-
cises of discretion are permissible, however, we have stated that “[a]n
agency confronting resource constraints may change its own conduct, but
it cannot change the law.” Utility Air Regulatory Group v. EPA, 573
U. S. 302, 327 (2014).

52 DEP
ARTMENT OF HOMELAND SECURITY v.
REGENTS OF UNIV. OF CAL.
Opinion of Thomas, J.
would also confict with the major questions doctrine, which
is
based on the expectation that Congress speaks clearly
when it delegates the power to make “decisions of vast
economic and political signifcance.” Utility Air Regula-
tory Group v. EPA, 573 U. S. 302, 324 (2014) (UARG) (inter-
nal quotation marks omitted); see also Texas v. United
States, 787 F. 3d 733, 760–761 (CA5 2015).
Read together, the detailed statutory provisions govern-
ing temporary and lawful permanent resident status, relief
from removal, and classwide deferred-action programs lead
ineluctably to the conclusion that DACA is “inconsisten[t]
with the design and structure of the statute as a whole.”
University of Tex. Southwestern Medical Center v. Nassar,
570 U. S. 338, 353 (2013). As the District Court stated
in the DAPA litigation and as then-Attorney General Ses-
sions agreed, “[i]nstead of merely refusing to enforce the
INA's removal laws against an individual, the DHS has
enacted a wide-reaching program that awards legal presence
. . . to individuals Congress has deemed deportable or remov-
able.” Texas v. United States, 86 F. Supp. 3d 591, 654 (SD
Tex. 2015). The immigration statutes contain a level of
granular specifcity that is exceedingly rare in the modern
administrative state. It defes all logic and common sense
to conclude that a statutory scheme detailed enough to pro-
vide conditional lawful presence to groups as narrowly de-
fned as “alien entrepreneurs,” § 1186b, is simultaneously ca-
pacious enough for DHS to grant lawful presence to almost
two million illegal aliens with the stroke of a Cabinet secre-
tary's pen.
B
Then-Attorney General Sessions concluded that the initial
DACA program suffered from the “same legal . . . defects”
as DAPA and expanded DACA, fnding that, like those pro-
grams, DACA was implemented without statutory authority.
App. 877–878. Not only was this determination correct, but

Cite
as: 591 U. S. 1 (2020)
53
Opinion of Thomas, J.
it is also dispositive for purposes of our review. “It is axio-
matic
that an administrative agency's power . . . is limited to
the authority delegated by Congress.” Bowen v. George-
town Univ. Hospital, 488 U. S. 204, 208 (1988). DHS had no
authority here to create DACA, and the unlawfulness of that
program is a suffcient justifcation for its rescission.
The majority opts for a different path, all but ignoring
DACA's substantive legal defect. See ante, at 24–25. On
the majority's understanding of APA review, DHS was re-
quired to provide additional policy justifcations in order to
rescind an action that it had no authority to take. This rule
“has no basis in our jurisprudence, and support for [it]
is conspicuously absent from the Court's opinion.” Massa-
chusetts v. EPA, 549 U. S. 497, 536 (2007) (Roberts, C. J.,
dissenting).
The lack of support for the majority's position is hardly
surprising in light of our Constitution's separation of powers.
No court can compel Executive Branch offcials to exceed
their congressionally delegated powers by continuing a pro-
gram that was void ab initio. Cf. Clinton v. City of New
York, 524 U. S. 417 (1998); INS v. Chadha, 462 U. S. 919
(1983); see also EPA v. EME Homer City Generation, L. P.,
572 U. S. 489, 542, n. 5 (2014) (Scalia, J., dissenting); Public
Citizen v. Department of Justice, 491 U. S. 440, 487 (1989)
(Kennedy, J., concurring in judgment). In reviewing agency
action, our role is to ensure that Executive Branch offcials
do not transgress the proper bounds of their authority,
Arlington, 569 U. S., at 327 (Roberts, C. J., dissenting),
not to perpetuate a decision to unlawfully wield power in
direct contravention of the enabling statute's clear limits, see
UARG, 573 U. S., at 327–328; Barnhart v. Sigmon Coal Co.,
534 U. S. 438, 462 (2002).
Under our precedents, DHS can only exercise the author-
ity that Congress has chosen to delegate to it. See UARG,
573 U. S., at 327. In implementing DACA, DHS under the

54 DEP
ARTMENT OF HOMELAND SECURITY v.
REGENTS OF UNIV. OF CAL.
Opinion of Thomas, J.
Obama administration arrogated to itself power it was not
g
iven by Congress. Thus, every action taken by DHS under
DACA is the unlawful exercise of power. Now, under the
Trump administration, DHS has provided the most compel-
ling reason to rescind DACA: The program was unlawful and
would force DHS to continue acting unlawfully if it carried
the program forward.
III
The majority's demanding review of DHS' decisionmaking
process is especially perverse given that the 2012 memoran-
dum fouted the APA's procedural requirements—the very
requirements designed to prevent arbitrary decisionmaking.
Even if DHS were authorized to create DACA, it could not
do so without undertaking an administrative rulemaking.
The fact that DHS did not engage in this process likely pro-
vides an independent basis for rescinding DACA. But at
the very least, this procedural defect compounds the absur-
dity of the majority's position in these cases.
As described above, DACA fundamentally altered the im-
migration laws. It created a new category of aliens who, as
a class, became exempt from statutory removal procedures,
and it gave those aliens temporary lawful presence. Both
changes contravened statutory limits. DACA is thus what
is commonly called a substantive or legislative rule.
8
As the
name implies, our precedents state that legislative rules are
those that “have the force and effect of law.” Chrysler
Corp. v. Brown, 441 U. S. 281, 295 (1979) (internal quotation
marks omitted).
Our precedents allow the vast majority of legislative rules
to proceed through so-called “informal” notice and comment
rulemaking. See United States v. Florida East Coast R.
8
The majority tacitly acknowledges as much, as it must. See ante, at
18–19. Otherwise, the majority would have to accept that DACA was
nothing more than a policy of prosecutorial discretion, which would make
its rescission unreviewable. See Heckler v. Chaney, 470 U. S. 821, 831
(1985).

Cite
as: 591 U. S. 1 (2020)
55
Opinion of Thomas, J.
Co., 410 U. S. 224, 237–238 (1973).
9
But
under our prece-
dents, an agency must engage in certain procedures man-
dated by the APA before its rule carries legal force. Kisor
v. Wilkie, 588 U. S. 558, 584 (2019) (plurality opinion) (“[A]
legislative rule, . . . to be valid[,] must go through notice and
comment”); id., at 607 (Gorsuch, J., concurring in judgment)
(same); Perez v. Mortgage Bankers Assn., 575 U. S. 92, 96
(2015); cf. Azar v. Allina Health Services, 587 U. S. 566, 568
(2019) (same with respect to materially identical procedures
under the Medicare Act). These procedures specify that the
agency “shall” publish a notice of proposed rulemaking in
the Federal Register, justify the rule by reference to legal
authority, describe “the subjects and issues involved” in the
rule, and allow interested parties to submit comments. 5
U. S. C. §§ 553(b)–(c); see also Kisor, 588 U. S., at 607 (opinion
of Gorsuch, J.). As we have recognized recently, use of the
word “shall” indicates that these procedures impose manda-
tory obligations on the agency before it can adopt a valid
binding regulation. See Maine Community Health Options
v. United States, 590 U. S. 296, 310 (2020). After undergoing
notice and comment, the agency then publishes the fnal rule,
which must “articulate a satisfactory explanation for [the] ac-
tion including a rational connection between the facts found
and the choice made.” Motor Vehicle Mfrs. Assn. of United
States, Inc. v. State Farm Mut. Automobile Ins. Co., 463
U. S. 29, 43 (1983) (internal quotation marks omitted). Only
after completing this process is the legislative rule a valid
law. See Kisor, 588 U. S., at 607 (opinion of Gorsuch, J.).
10
9
As I have previously pointed out, “the APA actually contemplated a
much more formal process for most rulemaking.” Perez v. Mortgage
Banke rs Assn., 575 U. S. 92, 128, n. 5 (2015) (opi ni on concurr i ng in
judgment).
10
The APA also provides certain exceptions from notice and comment
rulemaking. For example, an agency may promulgate a legally binding
rule without notice and comment if good cause exists to do so. 5 U. S. C.
§ 553(b)(B). This text would become a nullity if the agency could achieve

56 DEP
ARTMENT OF HOMELAND SECURITY v.
REGENTS OF UNIV. OF CAL.
Opinion of Thomas, J.
Because DACA has the force and effect of law, DHS was
required
to observe the procedures set out in the APA if it
wanted to promulgate a legislative rule. It is undisputed,
however, that DHS did not do so. It provided no oppor-
tunity for interested parties to submit comments regarding
the effect that the program's dramatic and very signifcant
change in immigration law would have on various aspects of
society. It provided no discussion of economic considera-
tions or national security interests. Nor did it provide any
substantial policy justifcations for treating young people
brought to this country differently from other classes of
aliens who have lived in the country without incident for
many years. And, it did not invoke any law authorizing
DHS to create such a program beyond its inexplicable asser-
tion that DACA was consistent with existing law. Because
DHS failed to engage in the statutorily mandated process,
DACA never gained status as a legally binding regulation
that could impose duties or obligations on third parties. See
id., at 584 (plurality opinion); id., at 607 (opinion of Gor-
such, J.).
Given this state of affairs, it is unclear to me why DHS
needed to provide any explanation whatsoever when it de-
cided to rescind DACA. Nothing in the APA suggests that
DHS was required to spill any ink justifying the rescission
of an invalid legislative rule, let alone that it was required
to provide policy justifcations beyond acknowledging that
the program was simply unlawful from the beginning. And,
it is well established that we do not remand for an agency to
correct its reasoning when it was required by law to take or
abstain from an action. See Morgan Stanley Capital Group
Inc. v. Public Util. Dist. No. 1 of Snohomish Cty., 554 U. S.
527, 544–545 (2008). Here, remand would be futile, because
no amount of policy explanation could cure the fact that DHS
lacked statutory authority to enact DACA in the frst place.
the same effect by simply dispensing with notice and comment proce-
dures altogether.

Cite
as: 591 U. S. 1 (2020)
57
Opinion of Thomas, J.
Instead of recognizing this, the majority now requires the
resci
nding Department to treat the invalid rule as though it
were legitimate. As just explained, such a requirement is
not supported by the APA.
11
It is also absurd, as evidenced
by its application to DACA in these cases. The majority
insists that DHS was obligated to discuss its choices regard-
ing benefts and forbearance in great detail, even though
no such detailed discussion accompanied DACA's issuance.
And, the majority also requires DHS to discuss reliance in-
terests at length, even though deferred action traditionally
does not take reliance interests into account and DHS was
not forced to explain its treatment of reliance interests in
the frst instance by going through notice and comment.
See infra, at 61. The majority's demand for such an expla-
nation here simply makes little sense.
At bottom, of course, none of this matters, because DHS
did provide a suffcient explanation for its action. DHS'
statement that DACA was ultra vires was more than suff-
cient to justify its rescission.
12
By requiring more, the ma-
jority has distorted the APA review process beyond recog-
nition, further burdening all future attempts to rescind
unlawful programs. Plaintiffs frequently bring successful
challenges to agency actions by arguing that the agency has
impermissibly dressed up a legislative rule as a policy state-
ment and must comply with the relevant procedures before
functionally binding regulated parties. See, e. g., Mendoza
v. Perez, 754 F. 3d 1002 (CADC 2014); Natural Resources
Defense Council v. EPA, 643 F. 3d 311 (CADC 2011); Na-
tional Family Planning & Reproductive Health Assn., Inc.
v. Sullivan, 979 F. 2d 227 (CADC 1992). But going forward,
11
Thus, it is not that the APA “should not” be construed to support the
majority's result, ante, at 33 (emphasis added), it is that the APA does not
and cannot support that result.
12
I express no view on what other reasons would justify an agency's
decision to rescind a procedurally unlawful action. I merely point out
that correctly concluding that the program was illegal is suffcient.

58 DEP
ARTMENT OF HOMELAND SECURITY v.
REGENTS OF UNIV. OF CAL.
Opinion of Thomas, J.
when a rescinding agency inherits an invalid legislative rule
that
ignored virtually every rulemaking requirement of
the APA, it will be obliged to overlook that reality. Instead
of simply terminating the program because it did not go
through the requisite process, the agency will be compelled
to treat an invalid legislative rule as though it were
legitimate.
13
IV
Even if I were to accept the majority's premise that
DACA's rescission required additional policy justifcations,
the majority's reasons for setting aside the agency's decision
still fail.
A
First, the majority claims that the Fifth Circuit discussed
only the legality of the 2014 memorandum's conferral of ben-
efts, not its “forbearance component”—i. e., the decision not
to place DACA recipients into removal proceedings. Ante,
at 27. The majority, therefore, claims that, notwithstanding
the then-Attorney General's legal conclusion, then-Acting
Secretary Duke was required to consider revoking DACA
recipients' lawful presence and other attendant benefts
while continuing to defer their removal. Ante, at 29. Even
assuming the majority correctly characterizes the Fifth
Circuit's opinion, it cites no authority for the proposition
that arbitrary and capricious review requires an agency
to dissect an unlawful program piece by piece, scrutinizing
13
In my view, even if DACA were permitted under the federal immigra-
tion laws and had complied with the APA, it would still violate the Consti-
tution as an impermissible delegation of legislative power. See Depart-
ment of Transportation v. Association of American Railroads, 575 U. S.
43, 77 (2015) (Thomas, J., concurring in judgment). Putting aside this
constitutional concern, however, the notice and comment process at least
attempts to provide a “surrogate political process” that takes some of the
sting out of the inherently undemocratic and unaccountable rulemaking
process. Asimow, Interim-Final Rules: Making Haste Slowly, 51 Admin.
L. Rev. 703, 708 (1999).

Cite
as: 591 U. S. 1 (2020)
59
Opinion of Thomas, J.
each separate element to determine whether it would inde-
pendently
violate the law, rather than just rescinding the
entire program.
14
The then-Attorney General reviewed the thorough deci-
sions of the District Court and the Fifth Circuit. Those
courts exhaustively examined the INA's text and structure,
the relevant provisions of other federal immigration statutes,
the historical practice of deferred action, and the general
grants of statutory authority to set immigration policy.
Both decisions concluded that DAPA and expanded DACA
violated the carefully crafted federal immigration scheme,
that such violations could not be justifed through reference
to past exercises of deferred action, and that the general
grants of statutory authority did not give DHS the power to
enact such a sweeping nonenforcement program. Based on
the reasoning of those decisions, then-Attorney General Ses-
sions concluded that DACA was likewise implemented with-
14
The majority's interpretation of the Fifth Circuit's opinion is highly
questionable. Because a grant of deferred action renders DACA recipi-
ents eligible for certain benefts and work authorization, it is far from clear
that the Department could separate DACA's “forbearance component”
from the major benefts it conferred without running into yet another APA
problem. The majority points to the fact that, under the Patient Protec-
tion and Affordable Care Act of 2010, relevant regulations exclude those
receiving deferred action through DACA from coverage. Ante, at 26–27,
n. 5. But that misses the point. Those regulations were promulgated
before “anyone with deferred action under the DACA process applie[d]”
for those benefts. See 77 Fed. Reg. 52616 (2012). By contrast, DACA
recipients have been eligible for and have received Medicare, Social Secu-
rity, and work authorization for years. DHS therefore is not writing on
a blank slate. Under the majority's rule, DHS would need to amend all
relevant regulations and explain why all recipients of deferred action who
have previously received such benefts may no longer receive them. Al-
ternatively and perhaps more problematically, it would need to provide a
reason why other recipients of deferred action should continue to qualify,
while DACA recipients should not. It thus seems highly likely that the
majority's proposed course of action would be subject to serious arbitrary
and capricious challenges.

60 DEP
ARTMENT OF HOMELAND SECURITY v.
REGENTS OF UNIV. OF CAL.
Opinion of Thomas, J.
out statutory authority. He directed DHS to restore the
r
ule of law. DHS followed the then-Attorney General's
legal analysis and rescinded the program. This legal conclu-
sion more than suffces to supply the “reasoned analysis” nec-
essary to rescind an unlawful program. State Farm, 463
U. S., at 42.
The majority has no answer except to suggest that this
approach is inconsistent with State Farm. See ante, at 28–
29. But in doing so, the majority ignores the fact that, un-
like the typical “prior policy” contemplated by the Court in
State Farm, DACA is unlawful. Neither State Farm nor
any other decision cited by the majority addresses what an
agency must do when it has inherited an unlawful program.
It is perhaps for this reason that, rather than responding
with authority of its own, the majority simply opts to excise
the “unlawful policy” aspect from its discussion.
B
Second, the majority claims that DHS erred by failing to
take into account the reliance interests of DACA recipients.
Ante, at 30–33. But reliance interests are irrelevant when
assessing whether to rescind an action that the agency
lacked statutory authority to take. No amount of reliance
could ever justify continuing a program that allows DHS to
wield power that neither Congress nor the Constitution gave
it. Any such decision would be “not in accordance with law”
or “in excess of statutory . . . authority.” 5 U. S. C.
§§ 706(2)(A), (C). Accordingly, DHS would simply be engag-
ing in yet another exercise of unlawful power if it used reli-
ance interests to justify continuing the initially unlawful pro-
gram, and a court would be obligated to set aside that
action.
15
15
The majority contends that this argument does not carry force because
the rescission implemented a winddown period during which recipients
would continue to receive benefts. But whether DHS' decision to wind
down DACA was lawful is a separate question from whether DHS was

Cite
as: 591 U. S. 1 (2020)
61
Opinion of Thomas, J.
Even if reliance interests were sometimes relevant when
resci
nding an ultra vires action, the rescission still would not
be arbitrary and capricious here. Rather, as the majority
does not dispute, the rescission is consistent with how de-
ferred action has always worked. As a general matter, de-
ferred action creates no rights—it exists at the Govern-
ment's discretion and can be revoked at any time. See App.
to Pet. for Cert. in No. 18–587, at 104a (DACA and expanded
DACA); 8 CFR § 214.11( j)(3) (T visas); § 214.14(d)(2) (U
visas); 62 Fed. Reg. 63249, 63253 (1997) (discussing Exec.
Order No. 12711 for certain citizens of the People's Republic
of China). The Government has made clear time and again
that, because “deferred action is not an immigration status,
no alien has the right to deferred action. It is used solely
in the discretion of the [Government] and confers no protec-
tion or beneft upon an alien.” DHS Immigration and Cus-
toms Enforcement Offce of Detention and Removal, Deten-
tion and Deportation Offcer's Field Manual § 20.8 (Mar. 27,
2006); see also Memorandum from D. Meissner, Comm'r, INS,
to Regional Directors et al., pp. 11–12 (Nov. 17, 2000); Memo-
randum from W. Yates, Assoc. Director of Operations, DHS,
Citizenship and Immigration Servs., to Director, Vt. Serv.
Center, p. 5 (2003). Thus, contrary to the majority's unsup-
ported assertion, ante, at 30, this longstanding administra-
tive treatment of deferred action provides strong evidence
and authority for the proposition that an agency need not
consider reliance interests in this context.
16
required to consider reliance interests before discontinuing an unlawful
program.
16
The majority's approach will make it far more diffcult to change
deferred-action programs going forward, which is hardly in keeping with
this Court's own understanding that deferred action is an “exercise in
administrative discretion” used for administrative “convenience.” Reno
v. American-Arab Anti-Discrimination Comm., 525 U. S. 471, 484 (1999).
Agencies will likely be less willing to grant deferred action knowing
that any attempts to undo it will require years of litigation and time-
consuming rulemakings.

62 DEP
ARTMENT OF HOMELAND SECURITY v.
REGENTS OF UNIV. OF CAL.
Opinion of Thomas, J.
Finally, it is inconceivable to require DHS to study reli-
ance
interests before rescinding DACA considering how the
program was previously defended. DHS has made clear
since DACA's inception that it would not consider such reli-
ance interests. Contemporaneous with the DACA memo,
DHS stated that “DHS can terminate or renew deferred ac-
tion at any time at the agency's discretion.” Consideration
of Deferred Action for Childhood Arrivals Process, 89 Inter-
preter Releases 1557, App. 4, p. 2 (Aug. 20, 2012). In fact,
DHS repeatedly argued in court that the 2014 memorandum
was a valid exercise of prosecutorial discretion in part be-
cause deferred action created no rights on which recipients
could rely. Before the Fifth Circuit, DHS stated that “DHS
may revoke or terminate deferred action and begin removal
proceedings at any time at its discretion.” Brief for Appel-
lants in Texas v. United States, No. 15–40238, p. 7; see also
id., at 45–46. And before this Court, in that same litigation,
DHS reiterated that “DHS has absolute discretion to revoke
deferred action unilaterally, without notice or process.”
Brief for United States in United States v. Texas, O. T. 2015,
No. 15–674, p. 5; see also id., at 37. If that treatment of
reliance interests was incorrect, it provides yet one more
example of a defciency in DACA's issuance, not its rescission.
***
President Trump's Acting Secretary of Homeland Security
inherited a program created by President Obama's Secre-
tary that was implemented without statutory authority and
without following the APA's required procedures. Then-
Attorney General Sessions correctly concluded that this
u ltra vires program shou ld be rescinded. These cases
could—and should—have ended with a determination that
his legal conclusion was correct.
Instead, the majority today concludes that DHS was re-
quired to do far more. Without grounding its position in
either the APA or precedent, the majority declares that DHS

Cite
as: 591 U. S. 1 (2020)
63
Opinion of Alito, J.
was required to overlook DACA's obvious legal defciencies
and
provide additional policy reasons and justifcations be-
fore restoring the rule of law. This holding is incorrect, and
it will hamstring all future agency attempts to undo actions
that exceed statutory authority. I would therefore reverse
the judgments below and remand with instructions to dis-
solve the nationwide injunctions.
Justice Alito, concurring in the judgment in part and
dissenting in part.
Anyone interested in the role that the Federal Judiciary
now plays in our constitutional system should consider what
has happened in these cases. Early in the term of the cur-
rent President, his administration took the controversial step
of attempting to rescind the Deferred Action for Childhood
Arrivals (DACA) program. Shortly thereafter, one of the
nearly 700 federal district court judges blocked this rescis-
sion, and since then, this issue has been mired in litigation.
In November 2018, the Solicitor General fled petitions for
certiorari, and today, the Court still does not resolve the
question of DACA's rescission. Instead, it tells the Depart-
ment of Homeland Security to go back and try again. What
this means is that the Federal Judiciary, without holding that
DACA cannot be rescinded, has prevented that from occur-
ring during an entire Presidential term. Our constitutional
system is not supposed to work that way.
I join Justice Thomas's opinion. DACA presents a deli-
cate political issue, but that is not our business. As Justice
Thomas explains, DACA was unlawful from the start, and
that alone is suffcient to justify its termination. But even
if DACA were lawful, we would still have no basis for over-
turning its rescission. First, to the extent DACA repre-
sented a lawful exercise of prosecutorial discretion, its re-
scission represented an exercise of that same discretion, and
it would therefore be unreviewable under the Administrative
Procedure Act. 5 U. S. C. § 701(a)(2); see Heckler v. Chaney,

64 DEP
ARTMENT OF HOMELAND SECURITY v.
REGENTS OF UNIV. OF CAL.
Opinion of Kavanaugh, J.
470 U. S. 821, 831–832 (1985). Second, to the extent we
cou
ld review the rescission, it was not arbitrary and capri-
cious for essentially the reasons explained by Justice Kava-
naugh. See post, at 66–68 (opinion concurring in judgment
in part and dissenting in part).
Justice Kavanaugh, concurring in the judgment in part
and dissenting in part.
For the last 20 years, the country has engaged in conse-
quential policy, religious, and moral debates about the legal
status of millions of young immigrants who, as children, were
brought to the United States and have lived here ever since.
Those young immigrants do not have legal status in the
United States under current statutory law. They live, go to
school, and work here with uncertainty about their futures.
Despite many attempts over the last two decades, Congress
has not yet enacted legislation to afford legal status to
those immigrants.
In 2012, exercising its view of the Executive's prosecuto-
rial discretion under Article II and the immigration laws,
President Obama's administration unilaterally instituted a
program known as Deferred Action for Childhood Arrivals,
or DACA. Under DACA, eligible young immigrants may
apply for and receive deferred action. They must renew
their DACA status every two years. Under the program,
the Executive Branch broadly forbears from enforcing cer-
tain immigration removal laws against DACA recipients.
And by virtue of the forbearance, DACA recipients also be-
come eligible for work authorization and other benefts.
Since 2017, President Trump's administration has sought
to rescind DACA based on its different and narrower under-
standing of the Executive's prosecutorial discretion under
Article II and the immigration laws. In its view, the Execu-
tive Branch legally may not, and as a policy matter should
not, unilaterally forbear from enforcing the immigration
laws against such a large class of individuals. The current

Cite
as: 591 U. S. 1 (2020)
65
Opinion of Kavanaugh, J.
administration has stated that it instead wants to work with
Congress
to enact comprehensive legislation that would ad-
dress the legal status of those immigrants together with
other signifcant immigration issues.
The question before the Court is whether the Executive
Branch acted lawfully in ordering rescission of the ongoing
DACA program. To begin with, all nine Members of the
Court accept, as do the DACA plaintiffs themselves, that
the Executive Branch possesses the legal authority to re-
scind DACA and to resume pre-DACA enforcement of the
immigration laws enacted by Congress. Having previously
adopted a policy of prosecutorial discretion and nonenforce-
ment with respect to a particular class of offenses or individ-
uals, the Executive Branch has the legal authority to rescind
such a policy and resume enforcing the law enacted by Con-
gress. The Executive Branch's exercise of that rescission
authority is subject to constitutional constraints and may
also be subject to statutory constraints. The narrow legal
dispute here concer ns a statutory constrai nt —namely,
whether the Executive Branch's action to rescind DACA sat-
isfed the general arbitrary-and-capricious standard of the
Administrative Procedure Act, or APA.
The APA's arbitrary-and-capricious standard requires that
agency action be reasonable and reasonably explained. As
the Court has long stated, judicial review under that stand-
ard is deferential to the agency. The Court may not substi-
tute its policy judgment for that of the agency. The Court
simply ensures that the agency has acted within a broad zone
of reasonableness and, in particular, has reasonably consid-
ered the relevant issues and reasonably explained the deci-
sion. See FCC v. Fox Television Stations, Inc., 556 U. S.
502 (2009); Motor Vehicle Mfrs. Assn. of United States, Inc.
v. State Farm Mut. Automobile Ins. Co., 463 U. S. 29 (1983).
The Executive Branch explained its decision to rescind
DACA in two sequential memorandums by successive Secre-
taries of Homeland Security: the 2017 Duke Memorandum

66 DEP
ARTMENT OF HOMELAND SECURITY v.
REGENTS OF UNIV. OF CAL.
Opinion of Kavanaugh, J.
and the 2018 Nielsen Memorandum. The Duke Memoran-
dum
focused on DACA's perceived legal faws. The Court
today fnds the Duke Memorandum insuffcient under the
APA's arbitrary-and-capricious standard.
But regardless of whether the Court is correct about the
Duke Memorandum, the Nielsen Memorandum more fully
explained the Department's legal reasons for rescinding
DACA, and clarifed that even if DACA were lawful, the
Department would still rescind DACA for a variety of
policy reasons. The Nielsen Memorandum also expressly
addressed the reliance interests of DACA recipients. The
questi on under the APA's deferentia l arbitrary-and-
capricious standard is not whether we agree with the De-
par tment's decision to rescind DACA. The questi on is
whether the Nielsen Memorandum reasonably explained
the decision to rescind DACA. Under ordinary application
of the arbitrary-and-capr ici ous st andard, the Nielsen
Memorandum—with its alternative and independent ration-
ales and its discussion of reliance—would pass muster as an
explanation for the Executive Branch's action.
The Nielsen Memorandum was issued nine months after
the Duke Memorandum. Under the Administrative Proce-
dure Act, the Nielsen Memorandum is itself a “rule” setting
forth “an agency statement of general . . . applicability and
future effect designed to implement . . . policy.” 5 U. S. C.
§ 551(4). Because it is a rule, the Nielsen Memorandum con-
stitutes “agency action.” § 551(13). As the Secretary of
Homeland Security, Secretary Nielsen had the authority to
decide whether to stick with Secretary Duke's decision to
rescind DACA, or to make a different decision. Like Secre-
tary Duke, Secretary Nielsen chose to rescind DACA, and
she provided additional explanation. Her memorandum was
akin to common forms of agency action that follow earlier
agency action on the same subject—for example, a supple-
mental or new agency statement of policy, or an agency order
with respect to a motion for rehearing or reconsideration.

Cite
as: 591 U. S. 1 (2020)
67
Opinion of Kavanaugh, J.
Courts often consider an agency's additional explanations
of
policy or additional explanations made, for example, on
agency rehearing or reconsideration, or on remand from a
court, even if the agency's bottom-line decision itself does
not change.
Yet the Court today jettisons the Nielsen Memorandum by
classifying it as a post hoc justifcation for rescinding DACA.
An te, at 21– 23. Under our precedents, however, the
post hoc justifcation doctrine merely requires that courts
assess agency action based on the offcial explanations of the
agency decisionmakers, and not based on after-the-fact ex-
planations advanced by agency lawyers during litigation (or
by judges). See, e. g., State Farm, 463 U. S., at 50 (“courts
may not accept appellate counsel's post hoc rationalizations
for agency action”); FPC v. Texaco Inc., 417 U. S. 380, 397
(1974) (same); NLRB v. Metropolitan Life Ins. Co., 380 U. S.
438, 443–444 (1965) (same); Burlington Truck Lines, Inc. v.
United States, 371 U. S. 156, 168–169 (1962) (same). As the
D. C. Circuit has explained, the post hoc justifcation doctrine
“is not a time barrier which freezes an agency's exercise of
its judgment after an initial decision has been made and bars
it from further articulation of its reasoning. It is a rule di-
rected at reviewing courts which forbids judges to uphold
agency action on the basis of rationales offered by anyone
other than the proper decisionmakers.” Alpharma, Inc. v.
Leavitt, 460 F. 3d 1, 6 (2006) (Garland, J.) (internal quotation
marks omitted).
Indeed, the ordinary judicial remedy for an agency's insuf-
fcient explanation is to remand for further explanation by
the relevant agency personnel. It would make little sense
for a court to exclude offcial explanations by agency person-
nel such as a Cabinet Secretary simply because the explana-
tions are purportedly post hoc, and then to turn around and
remand for further explanation by those same agency per-
sonnel. Yet that is the upshot of the Court's application of
the post hoc justifcation doctrine today. The Court's refusal

68DEP
ARTMENT
OF HOMELAND SECURITYv.
REGENTS OF UNIV. OF CAL.
Opinion ofKavanaugh, J.
to look at the Nielsen Memorandum seems particularly mis-
t
aken,moreover
, because the Nielsen Memorandum shows
that the Department, back in 2018, considered the policy is-
sues that the Court today says the Department did not con-
sider.Ante,at 27–33.
To be sure, cases such as Overton Park and Camp v. Pitts
suggest that courts reviewing certain agency adjudications
may in some circumstances decline to examine an after-the-
fact agency explanation. See Camp v. Pitts, 411 U. S. 138,
142–143 (1973) (per curiam); Citizens to Preserve Overton
Park, Inc. v. Volpe, 401 U. S. 402, 419–421 (1971). But
agency adjudications are “concerned with the determination
of past and present rights and liabilities,” Attorney General's
Manual on the Administrative Procedure Act 14 (1947), and
implicate the due process interests of the individual parties
to the adjudication.Judicial review of an adjudicati on
therefore ordinarily focuses on what happened during the
agency's adjudication process of deciding that individual
case.
Even if certain agency adjudications have a slightly more
stringent restriction on post hoc explanations, the APA is
“based upon a dichotomy between rule making and adjudica-
tion,” ibid., and this case involves an ongoing agency rule
that has future effect—the rescission of DACA. The Niel-
sen Memorandum implements and explains the rescission of
DACA. I am aware of no case from this Court, and the
Court today cites none, that has employed the post hoc justi-
fication doctrine to exclude an agency's official explanation
of an agency rule. For purposes of arbitrary-and-capricious
review, it does not matter whether the latest official explana-
tion was two years ago or three years ago. What matters
is whether the explanation was reasonable and followed the
requisite procedures. In my view, the Court should con-
sider the Nielsen Memorandum in deciding whether the De-
partment's rescission of DACA satisfies the APA's arbitrary-
and-capricious standard.

591US1Unit:$U46[02-09-26 12:48:12]PAGESPGT:OPINBX
69Cite as: 591 U. S. 1 (2020)
Opinion ofKavanaugh, J.
Because the Court excludes the Nielsen Memorandum, the
Cour
t
sends the case back to the Department of Homeland
Security for further explanation. Although I disagree with
the Court's decision to remand, the only practical conse-
quence of the Court's decision to remand appears to be some
delay. The Court's decision seems to allow the Department
on remand to relabel and reiterate the substance of the Niel-
sen Memorandum, perhaps with some elaboration as sug-
gested in the Court's opinion.Ante,at 30–33.*
***
The Court's resolution of this narrow APA issue of course
cannot eliminate the broader uncertainty over the status of
the DACA recipients. That uncertainty is a result of Con-
gress's inability thus far to agree on legislation, which in turn
has forced successive administrations to improvise, thereby
triggering many rounds of relentless litigation with the pros-
*Because I conclude that the Executive Branch satisfied the APA's
arbitrary-and-capricious standard, I need not consider whether its prose-
cutorial enforcement policy was “committed to agency discretion by law”
and therefore not subject to APA arbitrary-and-capricious review in the
first place. 5 U. S. C. § 701(a)(2). Several judges have advanced argu-
ments suggesting that DACA—at least to the extent it was simply an
exercise of forbearance authority—and the repeal of DACA are decisions
about whether and to what extent to exercise prosecutorial discretion
against a class of offenses or individuals, and are therefore unreviewable
under the APA as “committed to agency discretion by law.” Ibid.; see
Casa De Maryland v. United States Dept. of Homeland Security, 924 F. 3d
684, 709–715 (CA4 2019) (Richardson, J., concurring in part and dissenting
in part); Regents of Univ. Cal. v. United States Dept. of Homeland Secu-
rity, 908 F. 3d 476, 521–523 (CA9 2018) (Owens, J., concurring in judg-
ment); see also Texas v. United States, 809 F. 3d 134, 196–202 (CA5 2015)
(King, J., dissenting); Texas v. United States, 787 F. 3d 733, 770–776 (CA5
2015) (Higginson, J., dissenting); cf. Heckler v. Chaney, 470 U. S. 821, 831–
835 (1985); ICC v. Locomotive Engineers, 482 U. S. 270, 277–284 (1987);
United States v. Nixon, 418 U. S. 683, 693 (1974) (“the Executive Branch
has exclusive authority and absolute discretion to decide whether to prose-
cute a case”); In re Aiken County, 725 F. 3d 255, 262–264 (CADC 2013).

591US1Unit:$U46[02-09-26 12:48:12]PAGESPGT:OPINBX
70DEPARTMENT OF HOMELAND SECURITYv.
REGENTS OF UNIV. OF CAL.
Opinion ofKavanaugh, J.
pect of more litigation to come. In contrast to those neces-
sar
i
ly short-lived and stopgap administrative measures, the
Article I legislative process could produce a sturdy and en-
during solution to this issue, one way or the other, and
thereby remove the uncertainty that has persisted for years
for these young immigrants and the Nation's immigration
system. In the meantime, as to the narrow APA question
presented here, I appreciate the Court's careful analysis, but
I ultimately disagree with its treatment of the Nielsen Mem-
orandum. I therefore respectfully dissent from the Court's
judgment on plaintiffs' APA claim, and I concur in the judg-
ment insofar as the Court rejects plaintiffs' equal protec-
tion claim.

OCTOBER
TERM, 2019
71
Syllabus
LIU et al. v. SECURITIES AND EXCHANGE
COMMISSION
certiorari
to the united states court of appeals for
the ninth circuit
No. 18–1501. Argued March 3, 2020—Decided June 22, 2020
To punish securities fraud, the Securities and Exchange Commission is
authorized to seek “equitable relief ” in civil proceedings, 15 U. S. C.
§ 78u(d)(5). In Kokesh v. SEC, 581 U. S. 455, this Court held that a
disgorgement order in a Securities and Exchange Commission (SEC)
enforcement action constitutes a “penalty” for purposes of the applicable
statute of limitations. The Court did not, however, address whether
disgorgement can qualify as “equitable relief ” under § 78u(d)(5), given
that equity historically excludes punitive sanctions.
Petitioners Charles Liu and Xin Wang solicited foreign nationals to
invest in the construction of a cancer-treatment center, but, an SEC
investigation revealed, misappropriated much of the funds in violation
of the terms of a private offering memorandum. The SEC brought a
civil action against petitioners, seeking, as relevant here, disgorgement
equal to the full amount petitioners had raised from investors. Peti-
tioners argued that the disgorgement remedy failed to account for their
legitimate business expenses, but the District Court disagreed and or-
dered petitioners jointly and severally liable for the full amount. The
Ninth Circuit affrmed.
Held: A disgorgement award that does not exceed a wrongdoer's net
profts and is awarded for victims is “equitable relief ” permissible under
§ 78u(d)(5). Pp. 78–92.
(a) In interpreting statutes that provide for “equitable relief,” this
Court analyzes whether a particular remedy falls into “those categories
of relief that were typically available in equity.” Mertens v. Hewitt
Associates, 508 U. S. 248, 256. Relevant here are two principles of eq-
uity jurisprudence. Equity practice has long authorized courts to strip
wrongdoers of their ill-gotten gains. And to avoid transforming that
remedy into a punitive sanction, courts restricted it to an individual
wrongdoer's net profts to be awarded for victims. Pp. 78–87.
(1) Whether it is called restitution, an accounting, or disgorgement,
the equitable remedy that deprives wrongdoers of their net profts from
unlawful activity refects both the foundational principle that “it would
be inequitable that [a wrongdoer] should make a proft out of his own
wrong,” Root v. Railway Co., 105 U. S. 189, 207, and the countervailing

72 LIU
v. SEC
Syllabus
equitable principle that the wrongdoer should not be punished by “pay-
[i
ng] more than a fair compensation to the person wronged,” Tilghman
v. Proctor, 125 U. S. 136, 145–146. The remedy has been a mainstay of
equity courts, and is not limited to cases involving a breach of trust or
fduciary duty, see Root, 105 U. S., at 214. Pp. 79–82.
(2) To avoid transforming a profts award into a penalty, equity
courts restricted the remedy in various ways. A constructive trust
was often imposed on wrongful gains for wronged victims. See, e. g.,
Burdell v. Denig, 92 U. S. 716, 720. Courts also generally awarded
profts-based remedies against individuals or partners engaged in con-
certed wrongdoing, not against multiple wrongdoers under a joint-and-
several liability theory. See, e. g., Ambler v. Whipple, 20 Wall. 546, 559.
Finally, courts limited awards to the net profts from wrongdoing after
deducting legitimate expenses. See, e. g., Rubber Co. v. Goodyear, 9
Wall. 788, 804. Pp. 82–85.
(3) Congress incorporated these longstanding equitable principles
into § 78u(d)(5), but courts have occasionally awarded disgorgement in
ways that test the bounds of equity practice. Petitioners claim that
disgorgement is necessarily a penalty under Kokesh, and thus not avail-
able at equity. But Kokesh expressly declined to reach that question.
The Government contends that the SEC's interpretation has Congress'
tacit support. But Congress does not enlarge the breadth of an equita-
ble, proft-based remedy simply by using the term “disgorgement” in
various statutes. Pp. 85–87.
(b) Petitioners briefy claim that their disgorgement award crosses
the bounds of traditional equity practice by failing to return funds to
victims, imposing joint-and-several liability, and declining to deduct
business expenses from the award. Because the parties did not fully
brief these narrower questions, the Court does not decide them here.
But certain principles may guide the lower courts' assessment of these
arguments on remand. Pp. 87–92.
(1) Section 78u(d)(5) provides limited guidance as to whether the
practice of depositing a defendant's gains with the Treasury satisfes its
command that any remedy be “appropriate or necessary for the beneft
of investors,” and the equitable nature of the profts remedy generally
requires the SEC to return a defendant's gains to wronged investors.
The parties, however, do not identify a specifc order in this case direct-
ing any proceeds to the Treasury. If one is entered on remand, the
lower courts may evaluate in the frst instance whether that order would
be for the beneft of investors and consistent with equitable principles.
Pp. 87–90.
(2) Imposing disgorgement liability on a wrongdoer for benefts
that accrue to his affiliates through joint-and-several liability runs

Cite
as: 591 U. S. 71 (2020)
73
Syllabus
against the rule in favor of holding defendants individually liable. See
Bel
knap v. Schild, 161 U. S. 10, 25–26. The common law did, however,
permit liability for partners engaged in concerted wrongdoing. See,
e. g., Ambler, 20 Wall., at 559. On remand, the Ninth Circuit may deter-
mine whether the facts are such that petitioners can, consistent with
equitable principles, be found liable for profts as partners in wrongdo-
ing or whether individual liability is required. Pp. 90–91.
(3) Courts may not enter disgorgement awards that exceed the
gains “made upon any business or investment, when both the receipts
and payments are taken into the account.” Goodyear, 9 Wall., at 804.
When the “entire proft of a business or undertaking ” results from
the wrongdoing, a defendant may be denied “inequitable deductions.”
Root, 105 U. S., at 203. Accordingly, courts must deduct legitimate ex-
penses before awarding disgorgement under § 78u(d)(5). The District
Court below did not ascertain whether any of petitioners' expenses were
legitimate. On remand, the lower courts should examine whether in-
cluding such expenses in a profts-based remedy is consistent with the
equitable principles underlying § 78u(d)(5). Pp. 91–92.
754 Fed. Appx. 505, vacated and remanded.
Sotomayor, J., delivered the opinion of the Court, in which Roberts,
C. J., and Ginsburg, Breyer, Alito, Kagan, Gorsuch, and Kavanaugh,
JJ., joined. Thomas, J., fled a dissenting opinion, post, p. 93.
G regor y G. Rapaw y arg ued the cause for petiti oners.
With him on the briefs were Michael K. Kellogg, Benjamin
S. Softness, and Hervé Gouraige.
Deputy Solicitor General Stewart argued the cause for
respondent. With him on the brief were Solicitor General
Francisco, Vivek Suri, Robert B. Stebbins, Michael A. Con-
ley, Jeffrey A. Berger, David D. Lisitza, Daniel Staroselsky,
and Kerry J. Dingle.*
*Briefs of amici curiae urging reversal were fled for the Americans for
Prosperity Foundation by Cynthia Fleming Crawford; for the Cato Insti-
tute by Bradley J. Bondi and Ilya Shapiro; for the Chamber of Commerce
of the United States of America by Adam G. Unikowsky and Zachary C.
Schauf; for Law Professors by Donald Burke and Brandon L. Arnold; for
the New Civil Liberties Alliance by John J. Vecchione, Margaret A. Little,
and Kara Rollins; for the New England Legal Foundation by John Pagli-
aro and Martin J. Newhouse; for the Securities Industry and Financial
Markets Association by Michael J. Dell and Kevin M. Carroll; for the

74 LIU
v. SEC
Opinion of the Court
Justice Sotomayor delivered the opinion of the Court.
In
Kokesh v. SEC, 581 U. S. 455 (2017), this Court held
that a disgorgement order in a Securities and Exchange
Commission (SEC) enforcement action imposes a “penalty”
for the purposes of 28 U. S. C. § 2462, the applicable statute
of limitations. In so deciding, the Court reserved an ante-
cedent question: whether, and to what extent, the SEC may
seek “disgorgement” in the frst instance through its power
to award “equitable relief ” under 15 U. S. C. § 78u(d)(5), a
power that historically excludes punitive sanctions. The
Washington Legal Foundation by Richard A. Samp; for Andy Altahawi
by Robert G. Heim and Jonathan E. Temchin; and for Parker R. Hallam
et al. by Karen L. Cook and S. Michael McColloch.
Briefs of amici curiae urging affrmance were fled for the State of
Illinois et al. by Kwame Raoul, Attorney General of Illinois, Jane Elinor
Notz, Solicitor General, Sarah A. Hunger, Deputy Solicitor General, and
Priyanka Gupta, Assistant Attorney General, and by the Attorneys Gen-
eral for their respective jurisdictions as follows: Kevin G. Clarkson of
Alaska, Phil Weiser of Colorado, William Tong of Connecticut, Kathleen
Jennings of Delaware, Karl A. Racine of the District of Columbia, Clare
E. Connors of Hawaii, Curtis T. Hill, Jr., of Indiana, Brian E. Frosh of
Maryland, Maura Healey of Massachusetts, Dana Nessel of Michigan,
Keith Ellison of Minnesota, Aaron D. Ford of Nevada, Gurbir S. Grewal
of New Jersey, Hector Balderas of New Mexico, Letitia James of New
York, Ellen F. Rosenblum of Oregon, Josh Shapiro of Pennsylvania, Peter
F. Neronha of Rhode Island, Alan Wilson of South Carolina, Jason R.
Ravnsborg of South Dakota, Thomas J. Donovan, Jr., of Vermont, Mark
R. Herring of Virginia, and Robert W. Ferguson of Washington; for Better
Markets, Inc., et al. by Dennis M. Kelleher and Stuart T. Rossman; for
Former Commissioners and Staff of the Securities and Exchange Commis-
sion by Steven E. Fineman and Daniel P. Chiplock; for Former Federal
Trade Commission Offcials by David C. Vladeck and Rachel L. Fried; for
Members of Congress by Elizabeth B. Wydra, Brianne J. Gorod, and Ash-
win P. Phatak; for the North American Securities Administrators Associa-
tion, Inc., by Michael B. Eisenkraft; and for Securities Law Professors by
Donna M. Nagy, pro se and Shana Wallace.
Briefs of amici curiae were fled for Oak Management Corporation by
Michael B. Kimberly, Paul W. Hughes, Matthew A. Waring, Sarah P. Ho-
garth, and David K. Momborquette; and for Remedies and Restitution
Scholars by Douglas Laycock, pro se.

Cite
as: 591 U. S. 71 (2020)
75
Opinion of the Court
Court holds today that a disgorgement award that does not
exceed
a wrongdoer's net profts and is awarded for victims
is equitable relief permissible under § 78u(d)(5). The judg-
ment is vacated, and the case is remanded for the courts
below to ensure the award was so limited.
I
A
Congress authorized the SEC to enforce the Securities Act
of 1933, 48 Stat. 74, as amended, 15 U. S. C. § 77a et seq.,
and the Securities Exchange Act of 1934, 48 Stat. 881, as
amended, 15 U. S. C. § 78a et seq., and to punish securities
fraud through administrative and civil proceedings. In ad-
ministrative proceedings, the SEC can seek limited civil
pena lties and “disgorgement. ” See § 77h–1(e) (“In any
cease-and-desist proceeding under subsection (a), the Com-
mission may enter an order requiring accounting and dis-
gorgement”); see a lso § 77h–1(g) (“Author ity to impose
money penalties”). In civil actions, the SEC can seek civil
penalties and “equitable relief.” See, e. g., § 78u(d)(5) (“In
any action or proceeding brought or instituted by the Com-
mission under any provision of the securities laws, . . . any
Federal court may grant . . . any equitable relief that may
be appropriate or necessary for the beneft of investors”); see
also § 78u(d)(3) (“Money penalties in civil actions” (quota-
tion modifed)).
Congress did not defne what falls under the umbrella of
“equitable relief.” Thus, courts have had to consider which
remedies the SEC may impose as part of its § 78u(d)(5)
powers.
Starting with SEC v. Texas Gulf Sulphur Co., 446 F. 2d
1301 (CA2 1971), courts determined that the SEC had au-
thority to obtain what it called “restitution,” and what in
substance amounted to “profts” that “merely depriv[e]” a
defendant of “the gains of . . . wrongful conduct.” Id., at
1307–1308. Over the years, the SEC has continued to re-

76 LIU
v. SEC
Opinion of the Court
quest this remedy, later referred to as “disgorgement,”
1
and
cour
ts have continued to award it. See SEC v. Common-
wealth Chemical Securities, Inc., 574 F. 2d 90, 95 (CA2 1978)
(explaining that, when a court awards “[d]isgorgement of
profts in an action brought by the SEC,” it is “exercising
the chancellor's discretion to prevent unjust enrichment”);
see also SEC v. Blatt, 583 F. 2d 1325, 1335 (CA5 1978); SEC
v. Washington Cty. Util. Dist., 676 F. 2d 218, 227 (CA6
1982).
In Kokesh, this Court determined that disgorgement con-
stituted a “penalty” for the purposes of 28 U. S. C. § 2462,
which establishes a 5-year statute of limitations for “an ac-
tion, suit or proceeding for the enforcement of any civil fne,
penalty, or forfeiture.” The Court reached this conclusion
based on several considerations, namely, that disgorgement
is imposed as a consequence of violating public laws, it is
assessed in part for punitive purposes, and in many cases,
the award is not compensatory. 581 U. S., at 463–465. But
the Court did not address whether a § 2462 penalty can
nevertheless qualify as “equitable relief ” under § 78u(d)(5),
1
Courts have noted the relatively recent vintage of the term “disgorge-
ment.” See, e. g., SEC v. Cavanaugh, 445 F. 3d 105, 116, n. 24 (CA2 2006).
The dissent contends that this recency in terminology alone removes dis-
gorgement from the class of traditional equitable remedies, post, at 96
(opinion of Thomas, J.), despite seeming to recognize disgorgement's paral-
lels to restitution-based awards well within that class, post, at 96–97. It
is no surprise that the dissent notes such parallels, given this Court's ac-
knowledgment that “disgorgement of improper profts” is “a remedy only
for restitution” that is “traditionally considered . . . equitable.” Tull v.
United States, 481 U. S. 412, 424 (1987); see also in fra, at 80. The dissent
also observes the solid equitable roots of an accounting for profts, post, at
94; accord, in fra, at 79–80 (discussing the equitable origins of the account-
ing remedy), a remedy closely resembling disgorgement, see in fra, at 81–
82. In any event, casting aside a form of relief solely “based on the partic-
ular label affxed to [it] would `elevate form over substance,' ” Aetna
Health Inc. v. Davila, 542 U. S. 200, 214 (2004), leaving unresolved the
question before us: whether the underlying profts-based award conforms
to equity practice.

Cite
as: 591 U. S. 71 (2020)
77
Opinion of the Court
given that equity never “lends its aid to enforce a forfeiture
or
penalty.” Marshall v. Vicksburg, 15 Wall. 146, 149 (1873).
The Court cautioned, moreover, that its decision should not
be interpreted “as an opinion on whether courts possess au-
thority to order disgorgement in SEC enforcement proceed-
ings.” Kokesh, 581 U. S., at 461, n. 3. This question is now
squarely before the Court.
B
The SEC action and disgorgement award at issue here
arise from a scheme to defraud foreign nationals. Petition-
ers Charles Liu and his wife, Xin (Lisa) Wang, solicited
nearly $27 million from foreign investors under the EB–5
Immigrant Investor Program (EB–5 Program). 754 Fed.
Appx. 505, 506 (CA9 2018) (case below). The EB–5 Pro-
gram, administered by the U. S. Citizenship and Immigration
Services, permits noncitizens to apply for permanent resi-
dence in the United States by investing in approved commer-
cial enterprises that are based on “proposals for promoting
economic growth.” See USCIS, EB–5 Immigrant Investor
Program, https://www.uscis.gov/eb-5. Investments in EB–5
projects are subject to the federal securities laws.
Liu sent a private offering memorandum to prospective
investors, pledging that the bulk of any contributions would
go toward the construction costs of a cancer-treatment cen-
ter. The memorandum specifed that only amounts collected
from a small administrative fee would fund “ `legal, account-
ing and administration expenses.' ” 754 Fed. Appx., at 507.
An SEC investigation revealed, however, that Liu spent
nearly $20 million of investor money on ostensible marketing
expenses and salaries, an amount far more than what the
offering memorandum permitted and far in excess of the ad-
ministrative fees collected. 262 F. Supp. 3d 957, 960–964
(CD Cal. 2017). The investigation also revealed that Liu di-
verted a sizable portion of those funds to personal accounts
and to a company under Wang 's control. Id., at 961, 964.
Only a fraction of the funds were put toward a lease, prop-

78 LIU
v. SEC
Opinion of the Court
erty improvements, and a proton-therapy machine for cancer
treatment.
Id., at 964–965.
The SEC brought a civil action against petitioners, alleg-
ing that they violated the terms of the offering documents
by misappropriating millions of dollars. The District Court
found for the SEC, granting an injunction barring petition-
ers from participating in the EB–5 Program and imposing a
civil penalty at the highest tier authorized. Id., at 975, 976.
It also ordered disgorgement equal to the full amount petition-
ers had raised from investors, less the $234,899 that remained
in the corporate accounts for the project. Id., at 975–976.
Petitioners objected that the disgorgement award failed
to account for their business expenses. The District Court
disagreed, concluding that the sum was a “reasonable ap-
proximation of the profts causally connected to [their] viola-
tion.” Ibid. The court ordered petitioners jointly and sev-
erally liable for the full amount that the SEC sought. App.
to Pet. for Cert. 62a.
The Ninth Circuit affrmed. It acknowledged that Kokesh
“expressly refused to reach” the issue whether the District
Court had the authority to order disgorgement. 754 Fed.
Appx., at 509. The court relied on Circuit precedent to con-
clude that the “proper amount of disgorgement in a scheme
such as this one is the entire amount raised less the money
paid back to the investors.” Ibid.; see also SEC v. JT Wal-
lenbrock & Assocs., 440 F. 3d 1109, 1113, 1114 (CA9 2006)
(reasoning that it would be “unjust to permit the defendants
to offset . . . the expenses of running the very business they
created to defraud . . . investors”).
We granted certiorari to determine whether § 78u(d)(5) au-
thorizes the SEC to seek disgorgement beyond a defendant's
net profts from wrongdoing. 589 U. S. 1041 (2019).
II
Our task is a familiar one. In interpreting statutes like
§ 78u(d)(5) that provide for “equitable relief,” this Court ana-

Cite
as: 591 U. S. 71 (2020)
79
Opinion of the Court
lyzes whether a particular remedy falls into “those catego-
r
ies of relief that were typically available in equity.” Mer-
tens v. Hewitt Associates, 508 U. S. 248, 256 (1993); see also
CIGNA Corp. v. Amara, 563 U. S. 421, 439 (2011); Montanile
v. Board of Trustees of Nat. Elevator Industry Health Bene-
ft Plan, 577 U. S. 136, 142 (2016). The “basic contours of
the term are well known” and can be discerned by consulting
works on equity jurisprudence. Great-West Life & Annuity
Ins. Co. v. Knudson, 534 U. S. 204, 217 (2002).
These works on equity jurisprudence reveal two princi-
ples. First, equity practice long authorized courts to strip
wrongdoers of their ill-gotten gains, with scholars and courts
using various labels for the remedy. Second, to avoid trans-
forming an equitable remedy into a punitive sanction, courts
restricted the remedy to an individual wrongdoer's net
profts to be awarded for victims.
A
Equity courts have routinely deprived wrongdoers of their
net profts from unlawful activity, even though that remedy
may have gone by different names. Compare, e. g., 1 D.
Dobbs, Law of Remedies § 4.3(5), p. 611 (2d ed. 1993) (“Ac-
counting holds the defendant liable for his profts”), with id.,
§ 4.1(1), at 555 (referring to “restitution” as the relief that
“measures the remedy by the defendant's gain and seeks to
force disgorgement of that gain”); see also Restatement
(Third) of Restitution and Unjust Enrichment § 51, Comment
a, p. 204 (2010) (Restatement (Third)) (“Restitution meas-
ured by the defendant's wrongful gain is frequently called
`disgorgement.' Other cases refer to an `accounting ' or an
`accounting for profts' ”); 1 J. Pomeroy, Equity Jurisprudence
§ 101, p. 112 (4th ed. 1918) (describing an accounting as an equi-
table remedy for the violation of strictly legal primary rights).
No matter the label, this “proft-based measure of unjust
enrichment,” Restatement (Third) § 51, Comment a, at 204,
refected a foundational principle: “[I]t would be inequitable

80 LIU
v. SEC
Opinion of the Court
that [a wrongdoer] should make a proft out of his own
wrong
,” Root v. Railway Co., 105 U. S. 189, 207 (1882). At
the same time courts recognized that the wrongdoer should
not proft “by his own wrong,” they also recognized the coun-
tervailing equitable principle that the wrongdoer should not
be punished by “pay[ing] more than a fair compensation to
the person wronged.” Tilghman v. Proctor, 125 U. S. 136,
145–146 (1888).
Decisions from this Court confrm that a remedy tethered
to a wrongdoer's net unlawful profts, whatever the name,
has been a mainstay of equity courts. In Porter v. Warner
Holding Co., 328 U. S. 395 (1946), the Court interpreted a
section of the Emergency Price Control Act of 1942 that en-
compassed a “comprehensiv[e]” grant of “equitable jurisdic-
tion.” Id., at 398. “[O]nce [a District Court's] equity juris-
diction has been invoked” under that provision, the Court
concluded, “a decree compelling one to disgorge profts . . .
may properly be entered.” Id., at 398–399.
Subsequent cases confirm the “ `protean character ' of
the profts-recovery remedy.” Petrella v. Metro-Goldwyn-
Mayer, Inc., 572 U. S. 663, 668, n. 1 (2014). In Tull v. United
States, 481 U. S. 412 (1987), the Court described “disgorge-
ment of improper profts” as “traditionally considered an eq-
uitable remedy.” Id., at 424. While the Court acknowl-
edged that disgorgement was a “limited form of penalty”
insofar as it takes money out of the wrongdoer's hands, it
nevertheless compared disgorgement to restitution that sim-
ply “ `restor[es] the status quo,' ” thus situating the remedy
squarely within the heartland of equity. Ibid.
2
In Great-
2
The dissent acknowledges that this Court has “referred to disgorge-
ment as an equitable remedy in some of its prior decisions.” Post, at 97
(citing Feltner v. Columbia Pictures Television, Inc., 523 U. S. 340, 352
(1998)). While the dissent attempts to discount those cases for having
“merely referred to the term” only “in passing,” post, at 97, those cases
expressly “characterized as equitable . . . actions for disgorgement of im-
proper profts” in analyzing whether certain remedies were traditionally
available in equity, Feltner, 523 U. S., at 352 (citing Teamsters v. Terry,
494 U. S. 558, 570 (1990) (“characteriz[ing] damages as equitable where

Cite
as: 591 U. S. 71 (2020)
81
Opinion of the Court
West, the Court noted that an “accounting for profts” was
h
istorically a “form of equitable restitution.” 534 U. S., at
214, n. 2. And in Kansas v. Nebraska, 574 U. S. 445 (2015),
a “ `basically equitable' ” original jurisdiction proceeding, the
Court ordered disgorgement of Nebraska's gains from ex-
ceeding its allocation under an interstate water compact.
Id., at 453, 475.
Most recently, in SCA Hygiene Products Aktiebolag v.
First Quality Baby Products, LLC, 580 U. S. 328 (2017), the
Court canvassed pre-1938 patent cases invoking equity juris-
diction. It noted that many cases sought an “accounting,”
which it described as an equitable remedy requiring dis-
gorgement of ill-gotten profits. Id., at 341– 342. Th is
Court's “transsubstantive guidance on broad and fundamen-
tal” equitable principles, Romag Fasteners, Inc. v. Fossil
Group, Inc., 590 U. S. 212, 217 (2020), thus refects the teach-
ings of equity treatises that identify a defendant's net profts
as a remedy for wrongdoing.
Contrary to petitioners' argument, equity courts did not
limit this remedy to cases involving a breach of trust or of
fduciary duty. Brief for Petitioners 28–29. As petitioners
acknowledge, courts authorized profts-based relief in patent-
infringement actions where no such trust or special relation-
ship existed. Id., at 29; see also Root, 105 U. S., at 214
(“[I]t is nowhere said that the patentee's right to an account
is based upon the idea that there is a fduciary relation
created between him and the wrong-doer by the fact of
infringement”).
Petitioners attempt to distinguish these patent cases by
suggesting that an “accounting ” was appropriate only be-
cause Congress explicitly conferred that remedy by statute
in 1870. Brief for Petitioners 29 (citing the Act of July 8,
1870, § 55, 16 Stat. 206). But patent law had not previously
deviated from the general principles outlined above: This
they are restitutionary, such as in `action[s] for disgorgement of improper
profts' ”); Tull, 481 U. S., at 424).

82 LIU
v. SEC
Opinion of the Court
Court had developed the rule that a plaintiff may “recover
the
amount of . . . profts that the defendants have made by
the use of his invention” through “a series of decisions under
the patent act of 1836, which simply conferred upon the
courts of the United States general equity jurisdiction . . . in
cases arising under the patent laws.” Tilghman, 125 U. S.,
at 144. The 1836 statute, in turn, incorporated the sub-
stance of an earlier statute from 1819 which granted courts
the ability to “proceed according to the course and principles
of courts of equity” to “prevent the violation of patent-
rights.” Root, 105 U. S., at 193. Thus, as these cases dem-
onstrate, equity courts habitually awarded profits-based
remedies in patent cases well before Congress explicitly
authorized that form of relief.
B
While equity courts did not limit profts remedies to par-
ticular types of cases, they did circumscribe the award in
multiple ways to avoid transforming it into a penalty outside
their equitable powers. See Marshall, 15 Wall., at 149.
For one, the profts remedy often imposed a constructive
trust on wrongful gains for wronged victims. The remedy
itself thus converted the wrongdoer, who in many cases was
an infringer, “into a trustee, as to those profts, for the owner
of the patent which he infringes.” Burdell v. Denig, 92 U. S.
716, 720 (1876). In “converting the infringer into a trustee
for the patentee as regards the profts thus made,” the chan-
cellor “estimat[es] the compensation due from the infringer
to the patentee.” Packet Co. v. Sickles, 19 Wall. 611, 617–
618 (1874); see also Clews v. Jamieson, 182 U. S. 461, 480
(1901) (describing an accounting as involving a “ `distribution
of the trust moneys among all the benefciaries who are enti-
tled to share therein' ” in an action against the governing
committee of a stock exchange).
Equity courts also generally awarded profts-based reme-
dies against individuals or partners engaged in concerted

Cite
as: 591 U. S. 71 (2020)
83
Opinion of the Court
wrongdoing, not against multiple wrongdoers under a joint-
and-se
veral liability theory. See Ambler v. Whipple, 20
Wall. 546, 559 (1874) (ordering an accounting against a part-
ner who had “knowingly connected himself with and aided
in . . . fraud”). In Elizabeth v. Pavement Co., 97 U. S. 126
(1878), for example, a city engaged contractors to install
pavement in a manner that infringed a third party's patent.
The patent holder brought a suit in equity to recover profts
from both the city and its contractors. The Court held that
only the contractors (the only parties to make a proft) were
responsible, even though the parties answered jointly. Id.,
at 140; see also ibid. (rejecting liability for an individual off-
cer who merely acted as an agent of the defendant and
received a salary for his work). The rule against joint-and-
several liability for profts that have accrued to another ap-
pears throughout equity cases awarding profts. See, e. g.,
Belknap v. Schild, 161 U. S. 10, 25–26 (1896) (“The defend-
ants, in any such suit, are therefore liable to account for such
profts only as have accrued to themselves from the use of
the invention, and not for those which have accrued to an-
other, and in which they have no participation”); Keystone
Mfg. Co. v. Adams, 151 U. S. 139, 148 (1894) (reversing profts
award that was based not on what defendant had made from
infringement but on what third persons had made from the
use of the invention); Jennings v. Carson, 4 Cranch 2, 21
(1807) (holding that an order requiring restitution could not
apply to “those who were not in possession of the thing to
be restored” and “had no power over it”) (citing Penhallow
v. Doane's Administrators, 3 Dall. 54 (1795) (reversing a res-
titution award in admiralty that ordered joint damages in
excess of what each defendant received)).
Finally, courts limited awards to the net profts from
wrongdoing, that is, “the gain made upon any business or
investment, when both the receipts and payments are taken
into the account.” Rubber Co. v. Goodyear, 9 Wall. 788, 804
(1870); see also Livingston v. Woodworth, 15 How. 546, 559–

84 LIU
v. SEC
Opinion of the Court
560 (1854) (restricting an accounting remedy “to the actual
gai
ns and profts . . . during the time” the infringing machine
“was in operation and during no other period” to avoid “con-
vert[ing] a court of equity into an instrument for the punish-
ment of simple torts”); Seymour v. McCormick, 16 How. 480,
490 (1854) (rejecting a blanket rule that infringing one com-
ponent of a machine warranted a remedy measured by the
full amounts of the profts earned from the machine); Mowry
v. Whitney, 14 Wall. 620, 649 (1872) (vacating an accounting
that exceeded the profts from infringement alone); Wooden-
Ware Co. v. United States, 106 U. S. 432, 434–435 (1882) (ex-
plaining that an innocent trespasser is entitled to deduct
labor costs from the gains obtained by wrongfully harvest-
ing lumber).
The Court has carved out an exception when the “entire
proft of a business or undertaking ” results from the wrong-
ful activity. Root, 105 U. S., at 203. In such cases, the
Court has explained, the defendant “will not be allowed to
diminish the show of profts by putting in unconscionable
claims for personal services or other inequitable deductions.”
Ibid. In Goodyear, for example, the Court affrmed an ac-
counting order that refused to deduct expenses under this
rule. The Court there found that materials for which ex-
penses were claimed were bought for the purposes of the
infringement and “extraordinary salaries” appeared merely
to be “dividends of proft under another name.” 9 Wall., at
803; see also Callaghan v. Myers, 128 U. S. 617, 663–664
(1888) (declining to deduct a defendant's personal and living
expenses from his profts from copyright violations, but
distinguishing the expenses from salaries of offcers in a
corporation).
Setting aside that circumstance, however, courts consist-
ently restricted awards to net profts from wrongdoing after
deducting legitimate expenses. Such remedies, when as-
sessed against only culpable actors and for victims, fall com-

Cite
as: 591 U. S. 71 (2020)
85
Opinion of the Court
fortably within “those categories of relief that were typi-
ca
lly available in equity.” Mertens, 508 U. S., at 256.
C
By incorporating these longstanding equitable principles
into § 78u(d)(5), Congress prohibited the SEC from seeking
an equitable remedy in excess of a defendant's net profts
from wrongdoing. To be sure, the SEC originally endeav-
ored to conform its disgorgement remedy to the common-law
limitations in § 78u(d)(5). Over the years, however, courts
have occasionally awarded disgorgement in three main ways
that test the bounds of equity practice: by ordering the pro-
ceeds of fraud to be deposited in Treasury funds instead of
disbursing them to victims, imposing joint-and-several dis-
gorgement liability, and declining to deduct even legitimate
expenses from the receipts of fraud.
3
The SEC's disgorge-
ment remedy in such incarnations is in considerable tension
with equity practices.
Petitioners go further. They claim that this Court effec-
tively decided in Kokesh that disgorgement is necessarily a
penalty, and thus not the kind of relief available at equity.
Brief for Petitioners 19–20, 22–26. Not so. Kokesh ex-
pressly declined to pass on the question. 581 U. S., at 461,
n. 3. To be sure, the Kokesh Court evaluated a version of
the SEC's disgorgement remedy that seemed to exceed the
bounds of traditional equitable principles. But that decision
has no bearing on the SEC's ability to conform future re-
3
See, e. g., SEC v. Clark, 915 F. 2d 439, 441, 454 (CA9 1990) (requiring
defendant to disgorge the profts that his stockbroker made from unlawful
trades); SEC v. Brown, 658 F. 3d 858, 860–861 (CA8 2011) (per curiam)
(ordering joint-and-several disgorgement of funds collected from investors
and concluding that “ `the overwhelming weight of authority hold[s] that
securities law violators may not offset their disgorgement liability with
business expenses' ”); SEC v. Contorinis, 743 F. 3d 296, 304–306 (CA2
2014) (requir i ng defendant to disgorge benefits conferred on close
associates).

86 LIU
v. SEC
Opinion of the Court
quests for a defendant's profts to the limits outlined in
common-law
cases awarding a wrongdoer's net gains.
The Government, for its part, contends that the SEC's in-
terpretation of the equitable disgorgement remedy has Con-
gress' tacit support, even if it exceeds the bounds of equity
practice. Brief for Respondent 13–21. It points to the fact
that Congress has enacted a number of other statutes refer-
ring to “disgorgement.”
That argument attaches undue signifcance to Congress'
use of the term. It is true that Congress has authorized the
SEC to seek “disgorgement” in administrative actions. 15
U. S. C. § 77h–1(e) (“In any cease-and-desist proceeding
under subsection (a), the Commission may enter an order
requiring accounting and disgorgement”). But it makes
sense that Congress would expressly name the equitable
powers it grants to an agency for use in administrative
proceedings. After all, agencies are unlike federal courts
where, “[u]nless otherwise provided by statute, all . . . inher-
ent equitable powers . . . are available for the proper and
complete exercise of that jurisdiction.” Porter, 328 U. S.,
at 398.
Congress does not enlarge the breadth of an equitable,
proft-based remedy simply by using the term “disgorge-
ment” in various statutes. The Government argues that
under the prior-construction principle, Congress should be
presumed to have been aware of the scope of “disgorgement”
as interpreted by lower courts and as having incorporated
the (purportedly) prevailing meaning of the term into its
subsequent enactments. Brief for Respondent 24. But
“that canon has no application” where, among other things,
the scope of disgorgement was “far from `settled.' ” Arm-
strong v. Exceptional Child Center, Inc., 575 U. S. 320, 330
(2015).
At bottom, even if Congress employed “disgorgement” as
a shorthand to cross-reference the relief permitted by
§ 78u(d)(5), it did not silently rewrite the scope of what the

Cite
as: 591 U. S. 71 (2020)
87
Opinion of the Court
SEC could recover in a way that would contravene limita-
ti
ons embedded in the statute. After all, such “statutory
reference[s]” to a remedy grounded in equity “must, absent
other indication, be deemed to contain the limitations upon
its availability that equity typically imposes.” Great-West,
534 U. S., at 211, n. 1. Accordingly, Congress' own use of
the term “disgorgement” in assorted statutes did not expand
the contours of that term beyond a defendant's net profts—
a limit established by longstanding principles of equity.
III
Applying the principles discussed above to the facts of this
case, petitioners briefy argue that their disgorgement award
is unlawful because it crosses the bounds of traditional equity
practice in three ways: It fails to return funds to victims, it
imposes joint-and-several liability, and it declines to deduct
business expenses from the award. Because the parties fo-
cused on the broad question whether any form of disgorge-
ment may be ordered and did not fully brief these narrower
questions, we do not decide them here. We nevertheless
discuss principles that may guide the lower courts' assess-
ment of these arguments on remand.
A
Section 78u(d)(5) restricts equitable relief to that which
“may be appropriate or necessary for the beneft of inves-
tors.” The SEC, however, does not always return the en-
tirety of disgorgement proceeds to investors, instead deposit-
ing a portion of its collections in a fund in the Treasury. See
SEC, Division of Enforcement, 2019 Ann. Rep. 16–17, https://
www.sec.gov/fles/enforcement-annual-report-2019.pdf. Con-
gress established that fund in the Dodd-Frank Wall Street
Reform and Consumer Protection Act for disgorgement
awards that are not deposited in “disgorgement fund[s]” or
otherwise “distributed to victims.” 124 Stat. 1844. The
statute provides that these sums may be used to pay whistle-

88 LIU
v. SEC
Opinion of the Court
blowers reporting securities fraud and to fund the activities
of
the Inspector General. Ibid. Here, the SEC has not re-
turned the bulk of funds to victims, largely, it contends, be-
cause the Government has been unable to collect them.
4
The statute provides limited guidance as to whether the
practice of depositing a defendant's gains with the Treasury
satisfes the statute's command that any remedy be “appro-
priate or necessary for the beneft of investors.” The equi-
table nature of the profts remedy generally requires the
SEC to return a defendant's gains to wronged investors for
their beneft. After all, the Government has pointed to no
analogous common-law remedy permitting a wrongdoer's
profts to be withheld from a victim indefnitely without
being disbursed to known victims. Cf. Root, 105 U. S., at
214–215 (comparing the accounting remedy to a breach-of-
trust action, where a court would require the defendant to
“refund the amount of proft which they have actually
realized”).
The Government maintains, however, that the primary
function of depriving wrongdoers of profts is to deny them
the fruits of their ill-gotten gains, not to return the funds
to victims as a kind of restitution. See, e. g., SEC, Report
Pursuant to Section 308(C) of the Sarbanes Oxley Act of
2002, p. 3, n. 2 (2003) (taking the position that disgorgement
is not intended to make investors whole, but rather to de-
prive wrongdoers of ill-gotten gains); see also 6 T. Hazen,
Law of Securities Regulation § 16.18, p. 8 (rev. 7th ed. 2016)
(concluding that the remedial nature of the disgorgement
remedy does not mean that it is essentially compensatory
and concluding that the “primary function of the remedy
is to deny the wrongdoer the fruits of ill-gotten gains”).
Under the Government's theory, the very fact that it con-
4
According to the Government, petitioners “transferred the bulk of
their misappropriated funds to China, defed the district court's order to
repatriate those funds, and fed the United States.” Brief for Respond-
ent 36.

Cite
as: 591 U. S. 71 (2020)
89
Opinion of the Court
ducted an enforcement action satisfes the requirement that
it
is “appropriate or necessary for the beneft of investors.”
But the SEC's equitable, profts-based remedy must do
more than simply beneft the public at large by virtue of
depriving a wrongdoer of ill-gotten gains. To hold other-
wise would render meaningless the latter part of § 78u(d)(5).
Indeed, this Court concluded similarly in Mertens when ana-
lyzing statutory language accompanying the term “equitable
remedy.” 508 U. S., at 253 (interpreting the term “appro-
priate equitable relief ”). There, the Court found that the
additional statutory language must be given effect since the
section “does not, after all, authorize . . . `equitable relief ' at
large.” Ibid. As in Mertens, the phrase “appropriate or
necessary for the beneft of investors” must mean something
more than depriving a wrongdoer of his net profts alone,
else the Court would violate the “cardinal principle of inter-
pretation that courts must give effect, if possible, to every
clause and word of a statute.” Parker Drilling Manage-
ment Services, Ltd. v. Newton, 587 U. S. 601, 611 (2019) (in-
ternal quotation marks omitted).
The Government additionally suggests that the SEC's
practice of depositing disgorgement funds with the Treasury
may be justifed where it is infeasible to distribute the col-
lected funds to investors.
5
Brief for Respondent 37. It is
an open question whether, and to what extent, that practice
nevertheless satisfes the SEC's obligation to award relief
“for the beneft of investors” and is consistent with the
limitations of § 78u(d)(5). The parties have not identifed
authorities revealing what traditional equitable principles
5
We express no view as to whether the SEC has offered adequate proof
of failed attempts to return funds to investors here. To the extent that
feasibility is relevant at all to equitable principles, we observe that lower
courts are well equipped to evaluate the feasibility of returning funds to
victims of fraud. See, e. g., SEC v. Lund, 570 F. Supp. 1397, 1404–1405
(CD Cal. 1983) (appointing a magistrate judge to determine whether it
was feasible to locate victims of fnancial wrongdoing).

90 LIU
v. SEC
Opinion of the Court
govern when, for instance, the wrongdoer's profts cannot
prac
tically be disbursed to the victims. But we need not
address the issue here. The parties do not identify a specifc
order in this case directing any proceeds to the Treasury. If
one is entered on remand, the lower courts may evaluate in
the frst instance whether that order would indeed be for the
beneft of investors as required by § 78u(d)(5) and consistent
with equitable principles.
B
The SEC additionally has sought to impose disgorgement
liability on a wrongdoer for benefts that accrue to his affli-
ates, sometimes through joint-and-several liability, in a man-
ner sometimes seemingly at odds with the common-law rule
requiring individual liability for wrongful profts. See, e. g.,
SEC v. Contorinis, 743 F. 3d 296, 302 (CA2 2014) (holding
that a defendant could be forced to disgorge not only what
he “personally enjoyed from his exploitation of inside infor-
mation, but also the profts of such exploitation that he chan-
neled to friends, family, or clients”); SEC v. Clark, 915 F. 2d
439, 454 (CA9 1990) (“It is well settled that a tipper can be
required to disgorge his tippees' profts”); SEC v. Whittem-
ore, 659 F. 3d 1, 10 (CADC 2011) (approving joint-and-several
disgorgement liability where there is a close relationship be-
tween the defendants and collaboration in executing the
wrongdoing).
That prac tice cou ld transfor m any equit able profits-
focused remedy into a penalty. Cf. Marshall, 15 Wall., at
149. And it runs against the rule to not impose joint liabil-
ity in favor of holding defendants “liable to account for such
profts only as have accrued to themselves . . . and not for
those which have accrued to another, and in which they have
no participation.” Belknap, 161 U. S., at 25–26; see also
Elizabeth v. Pavement Co., 97 U. S. 126 (1878).
The common law did, however, permit liability for partners
engaged i n concer ted wrongdoi ng. See, e. g., Amble r,
20 Wall., at 559. The historic profts remedy thus allows

Cite
as: 591 U. S. 71 (2020)
91
Opinion of the Court
some fexibility to impose collective liability. Given the
w
ide spectrum of relationships between participants and
benefciaries of unlawful schemes—from equally culpable
codefendants to more remote, unrelated tipper-tippee
arrangements—the Court need not wade into all the circum-
stances where an equitable profts remedy might be punitive
when applied to multiple individuals.
Here, petitioners were married. 754 Fed. Appx. 505; 262
F. Supp. 3d, at 960–961. The Government introduced evi-
dence that Liu formed business entities and solicited invest-
ments, which he misappropriated. Id., at 961. It also pre-
sented evidence that Wang held herself out as the president,
and a member of the management team, of an entity to which
Liu directed misappropriated funds. Id., at 964. Petition-
ers did not introduce evidence to suggest that one spouse
was a mere passive recipient of profts. Nor did they sug-
gest that their fnances were not commingled, or that one
spouse did not enjoy the fruits of the scheme, or that other
circumstances would render a joint-and-several disgorge-
ment order unjust. Cf. SEC v. Hughes Capital Corp., 124
F. 3d 449, 456 (CA3 1997) (fnding that codefendant spouse
was liable for unlawful proceeds where they funded her “lav-
ish lifestyle”). We leave it to the Ninth Circuit on remand
to determine whether the facts are such that petitioners can,
consistent with equitable principles, be found liable for
profts as partners in wrongdoing or whether individual lia-
bility is required.
C
Courts may not enter disgorgement awards that exceed
the gains “made upon any business or investment, when both
the receipts and payments are taken into the account.”
Goodyear, 9 Wall., at 804; see also Restatement (Third) § 51,
Comment h, at 216 (reciting the general rule that a defend-
ant is entitled to a deduction for all marginal costs incurred
in producing the revenues that are subject to disgorgement).
Accordingly, courts must deduct legitimate expenses before

92 LIU
v. SEC
Opinion of the Court
ordering disgorgement under § 78u(d)(5). A rule to the con-
trary
that “make[s] no allowance for the cost and expense
of conducting [a] business” would be “inconsistent with
the ordinary principles and practice of courts of chancery.”
Tilghman, 125 U. S., at 145–146; cf. SEC v. Brown, 658 F. 3d
858, 861 (CA8 2011) (declining to deduct even legitimate
expenses like payments to innocent third-party employees
and vendors).
The District Court below declined to deduct expenses on
the theory that they were incurred for the purposes of fur-
thering an entirely fraudulent scheme. It is true that when
the “entire proft of a business or undertaking ” results from
the wrongdoing, a defendant may be denied “inequitable de-
ductions” such as for personal services. Root, 105 U. S., at
203. But that exception requires ascertaining whether ex-
penses are legitimate or whether they are merely wrongful
gains “under another name.” Goodyear, 9 Wall., at 803.
Doing so will ensure that any disgorgement award falls
within the limits of equity practice while preventing defend-
ants from profting from their own wrong. Root, 105 U. S.,
at 207.
Although it is not necessary to set forth more guidance
addressing the various circumstances where a defendant's
expenses might be considered wholly fraudulent, it suffces
to note that some expenses from petitioners' scheme went
toward lease payments and cancer-treatment equipment.
Such items arguably have value independent of fueling a
fraudulent scheme. We leave it to the lower court to exam-
ine whether including those expenses in a profts-based rem-
edy is consistent with the equitable principles underlying
§ 78u(d)(5).
***
For the foregoing reasons, we vacate the judgment below
and remand the case to the Ninth Circuit for further pro-
ceedings consistent with this opinion.
It is so ordered.

Cite
as: 591 U. S. 71 (2020)
93
Thomas, J., dissenting
Justice Thomas, dissenting.
The
Court correctly declines to affrm the Ninth Circuit's
decision upholding the District Court's disgorgement order,
but I disagree with the Court's decision to vacate and re-
mand for the lower courts to “limi[t]” the disgorgement
award. Ante, at 74. Disgorgement can never be awarded
under 15 U. S. C. § 78u(d)(5). That statute authorizes the
Securities and Exchange Commission (SEC) to seek only
“equitable relief that may be appropriate or necessary for
the beneft of investors,” and disgorgement is not a tradi-
tional equitable remedy. Thus, I would reverse the judg-
ment of the Court of Appeals.
I
The Securities Exchange Act of 1934, as amended in 2005,
allows the SEC to request “equitable relief ” in federal dis-
trict court against those who violate federal securities laws.
§ 78u(d)(5). According to our usual interpretive convention,
“equitable relief ” refers to forms of equitable relief available
in the English Court of Chancery at the time of the founding.
Because disgorgement is a creation of the 20th century, it is
not properly characterized as “equitable relief,” and, hence,
the District Court was not authorized to award it under
§ 78u(d)(5).
A
“This Court has never treated general statutory grants of
equitable authority as giving federal courts a freewheeling
power to fashion new forms of equitable remedies.” Trump
v. Hawaii, 585 U. S. 667, 714 (2018) (Thomas, J., concurring).
“Rather, it has read such statutes as constrained by `the
body of law which had been transplanted to this country from
the English Court of Chancery' in 1789.” Ibid. (quoting
Guaranty Trust Co. v. York, 326 U. S. 99, 105 (1945)). As
Justice Story put it, “the settled doctrine of this court is,
that the remedies in equity are to be administered . . . ac-
cording to the practice of courts of equity in [England], as

94 LIU
v. SEC
Thomas, J., dissenting
contradistinguished from that of courts of law; subject, of
course
, to the provisions of the acts of congress.” Boyle v.
Zacharie & Turner, 6 Pet. 648, 658 (1832).
We have interpreted other statutes according to this “set-
tled doctrine.” For example, we have read the term “equi-
table relief ” in the Employee Retirement Income Security
Act of 1974 to refer to “those categories of relief that were
typically available in equity.” Mertens v. Hewitt Associ-
ates, 508 U. S. 248, 256 (1993) (emphasis deleted). We have
done the same for the Judiciary Act of 1789, see, e. g., Grupo
Mexicano de Desarrollo, S. A. v. Alliance Bond Fund, Inc.,
527 U. S. 308, 318–319 (1999), and for provisions in the Bank-
ruptcy Code, see Taggart v. Lorenzen, 587 U. S. 554, 559–
560 (2019). There is nothing about § 78u(d)(5) that counsels
departing from this approach.
B
Disgorgement is not a traditional form of equitable relief.
Rather, cases, legal dictionaries, and treatises establish that
it is a 20th-century invention.
As an initial matter, it is not even clear what “disgorge-
ment” means. The major ity frankly acknowledges its
“ ` “protean character.” ' ” Ante, at 80 (quoting Petrella v.
Metro-Goldwyn-Mayer, Inc., 572 U. S. 663, 688, n. 1 (2014)).
The diffculty of defning this supposedly traditional remedy
is the frst sign that it is not a historically recognized
equitable remedy. In contrast, an accounting for profts, or
accounting—a distinct form of relief that the majority groups
with disgorgement—has a well-accepted defnition: It com-
pels a defendant to account for, and repay to a plaintiff, those
profts that belong to the plaintiff in equity. Bray, Fiduciary
Remedies, in The Oxford Handbook of Fiduciary Law 449 (E.
Criddle, P. Miller, & R. Sitkoff eds. 2019). The defnition of
disgorgement, after today's decision, is a remedy that com-
pels each defendant to pay his profts (and sometimes, though

Cite
as: 591 U. S. 71 (2020)
95
Thomas, J., dissenting
it is not clear when, all of his codefendants' profts) to a third-
par
ty Government agency (which sometimes, though it is not
clear when, passes the money on to victims). This remedy
has no basis in historical practice.
No published case appears to have used the term “dis-
gorgement” to refer to equitable relief until the 20th century.
Even then, the earliest cases use the word in a “non-
technical” sense, Brief for Law Professors as Amici Curiae
22, to describe the action a defendant must take when a
party is awarded a traditional equitable remedy such as an
accounting for profts or an equitable lien.
1
For example, in
Byrd v. Mullinix, 159 Ark. 310, 251 S. W. 871 (1923), the
Supreme Court of Arkansas affrmed the imposition of an
equitable lien to prevent a debtor from “put[ting] the money
in property which was itself beyond the reach of creditors,
and to compel its disgorgement,” id., at 316–317, 251 S. W.,
at 872. Likewise, in Armstrong v. Richards, 128 Fla. 561,
175 So. 340 (1937), the Supreme Court of Florida referred to
“the right of the taxpayer to require an accounting from and
disgorgement by public offcers and those in collusion with
them,” id., at 564, 175 So., at 341. In these cases, the term
“disgorgement” colloquially described what a defendant was
ordered to do, not the remedy itself.
By the 1960s, published opinions began to use “disgorge-
ment” to refer to a remedy in the administrative context.
In NLRB v. Local 176, 276 F. 2d 583 (CA1 1960), the agency
had “applied its . . . remedy of disgorgement of dues, requir-
ing the union to refund to every member who had obtained
employment on the Company project the dues which he had
paid,” id., at 586 (footnote omitted). The court declined to
enforce this part of the agency's order, but not because dis-
gorgement was an impermissible form of relief. Instead, it
1
An equitable lien is imposed on a defendant's property “as security for
a claim on the ground that otherwise the former would be unjustly en-
riched.” Restatement of Restitution § 161, p. 650 (1936).

96 LIU
v. SEC
Thomas, J., dissenting
found that, in the circumstances of the case, disgorgement
“seem[
ed] . . . to be an ex post facto penalty.” Ibid.; see also
NLRB v. Local 111, 278 F. 2d 823, 825 (CA1 1960) (enforcing
a disgorgement order from the agency).
By the 1970s, courts started using the term “disgorge-
ment” to describe a judicial remedy in its own right. When
the SEC initially sought this kind of relief under the Securi-
ties Exchange Act in SEC v. Texas Gulf Sulphur Co., 312
F. Supp. 77 (SDNY 1970), the District Court called it “resti-
tution,” id., at 93, and the Court of Appeals called it “[r]esti-
tution of [p]rofts,” SEC v. Texas Gulf Sulphur Co., 446 F. 2d
1301, 1307 (CA2 1971) (emphasis deleted). Courts soon sub-
stituted the label “disgorgement.” SEC v. Manor Nursing
Centers, Inc., 458 F. 2d 1082, 1105 (CA2 1972); SEC v. Sha-
piro, 349 F. Supp. 46, 55 (SDNY 1972).
The late date of these cases is suffcient reason to reject
the argument that disgorgement is a traditional equitable
remedy. But it is also telling that, when the SEC began
seeking this relief, it did so without any statutory authority.
Prior to 2005, the SEC lacked the power even to seek “equi-
table relief ” in cases like this one. See § 305(b), 116 Stat.
779 (amending the Securities Exchange Act). The District
Court in Texas Gulf Sulphur purported to “imply [a] new
remed[y],” based on its “inherent equity power” and a belief
that “the congressional purpose is effectuated by so doing.”
312 F. Supp., at 91. But the sources it cited are dubious.
The court relied on J. I. Case Co. v. Borak, 377 U. S. 426
(1964), a case about implied causes of action that we have
since abrogated. See Alexander v. Sandoval, 532 U. S. 275,
287 (2001). It also relied on a securities law treatise that
advocated for what it called “restitution” but admitted that
district courts had no express authority to grant the remedy
and that the SEC had never sought this remedy in the past.
3 L. Loss, Securities Regulation 1827–1828 (1961). It is
functionally this same unauthorized remedy that the SEC

Cite
as: 591 U. S. 71 (2020)
97
Thomas, J., dissenting
and courts now call “disgorgement.” The details have var-
ied
over time, but the lineage is clear: Disgorgement is
“a relic of the heady days” of courts inserting judicially cre-
ated relief into statutes. Correctional Services Corp. v.
Malesko, 534 U. S. 61, 75 (2001) (Scalia, J., concurring).
Disgorgement as a remedy in its own right is also absent
from legal publications until the 20th century. Leading
legal dictionaries did not defne the term until the turn of
the 20th century. See, e. g., Merriam-Webster's Dictionary
of Law 143 (1996); Black's Law Dictionary 480 (7th ed. 1999).
Nor was disgorgement included in the frst Restatement of
Restitution, adopted in 1936. The remedy does not appear
until the Third Restatement, adopted in 2010, which states
that “[r]estitution remedies” that seek “to eliminate proft
from wrongdoing . . . are often called `disgorgement' or `ac-
counting.' ” 2 Restatement (Third) of Restitution and Un-
just Enrichment § 51(4), p. 203. But “Restatement” is an
inapt title for this edition of the treatise. Like many of the
modern Restatements, its “authors have abandoned the mis-
sion of describing the law, and have chosen instead to set
forth their aspirations for what the law ought to be.” Kan-
sas v. Nebraska, 574 U. S. 445, 475 (2015) (Scalia, J., concur-
ring in part and dissenting in part). The inclusion of “dis-
gorgement” in the Third Restatement, which the majority
cites in support of its holding, ante, at 79, represents a
“ `novel extensi on' ” of equity. Kan sas, sup ra, at 483
(Thomas, J., concurring in part and dissenting in part) (quot-
ing Roberts, Restitutionary Disgorgement for Opportunistic
Breach of Contract and Mitigation of Damages, 42 Loyola
(LA) L. Rev. 131, 134 (2008)).
I acknowledge that this Court has referred to disgorge-
ment as an equitable remedy in some of its prior decisions.
See, e. g., Feltner v. Columbia Pictures Television, Inc., 523
U. S. 340, 352 (1998). But these opinions merely referred to
the term in passing without considering the question in

98 LIU
v. SEC
Thomas, J., dissenting
depth. The history is clear: Disgorgement is not a form of
rel
ief that was available in the English Court of Chancery at
the time of the founding.
C
The majority's treatment of disgorgement as an equitable
remedy threatens great mischief. The term disgorgement
itself invites abuse because it is a word with no fxed mean-
ing. The majority sees “parallels” between accounting and
disgorgement, ante, at 76, n. 1, but parallels are by defnition
not the same. Even if they were, the traditional remedy of
an accounting—which compels a party to repay profts that
belong to a plaintiff—has important conceptual limitations
that disgorgement does not. An accounting connotes the re-
lationship between a plaintiff and a defendant. In the words
of one scholar, “it is an accounting by A to B.” Bray, Fi-
duciary Remedies, at 454. But disgorgement connotes no
relationship and so is not naturally limited to net profts
and compensation of victims. It simply “is A disgorging.”
Ibid. Further, the traditional remedy of a constructive
trust
2
or an equitable lien requires that the “money or prop-
erty identifed as belonging in good conscience to the plaintiff
. . . clearly be traced to particular funds or property in the
defendant's possession.” Great-West Life & Annuity Ins.
Co. v. Knudson, 534 U. S. 204, 213 (2002). Disgorgement
reaches further because it has no tracing requirement. By
using a word with no history in equity jurisprudence, the
SEC and courts have made it possible to circumvent the
careful limitations imposed on other equitable remedies.
One need look no further than the SEC's use of disgorge-
ment to see the pitfalls of the majority's acquiescence in its
continued use as a remedy. The order in Texas Gulf Sul-
phur did not depart too far from equitable principles. The
2
A constructive trust compels a defendant “holding title to property . . .
to convey it to another on the ground that he would be unjustly enriched
if he were permitted to retain it.” Restatement of Restitution § 160, at
640–641.

Cite
as: 591 U. S. 71 (2020)
99
Thomas, J., dissenting
award was limited to the defendants' net profts and the
funds
were held in escrow and were at least partly available
to compensate victims, 446 F. 2d, at 1307. It did not take
long, however, for a district court to order a defendant to
turn over both his profts and the investment “income earned
on the proceeds.” Manor Nursing Centers, 458 F. 2d, at
1105. And in the case before us today, just a half century
later, disgorgement has expanded even further. The award
is not limited to net profts or even money possessed by an
individual defendant when it is imposed jointly and severally.
See ante, at 78. And not only is it not guaranteed to be
used to compensate victims, but the imposition of over $26
million in disgorgement and approximately $8 million in civil
monetary penalties in this case seems to ensure that victims
will be unable to recover anything in their own actions. As
long as courts continue to award “disgorgement,” both courts
and the SEC will continue to have license to expand their
own power.
The majority's decision to tame, rather than reject, dis-
gorgement will also cause confusion in administrative prac-
tice. As the majority explains, the SEC is expressly author-
ized to impose “ `disgorgement' ” in its in-house tribunals.
Ante, at 86 (quoting 15 U. S. C. § 77h–1(e)). It is unclear
whether the majority's new restrictions on disgorgement
will apply to these proceedings as well. If they do not, the
result will be that disgorgement has one meaning when the
SEC goes to district court and another when it proceeds in-
house.
More fundamentally, by failing to recognize that the prob-
lem is disgorgement itself, the majority undermines our en-
tire system of equity. The majority believes that insistence
on the traditional rules of equity is unnecessarily formalistic,
ante, at 76, n. 1, but the Founders accepted federal equitable
powers only because those powers depended on traditional
forms. The Constitution was ratifed on the understanding
that equity was “a precise legal system” with “specifc equi-

100 LIU
v. SEC
Thomas, J., dissenting
table remed[ies].” Missouri v. Jenkins, 515 U. S. 70, 127
(1995)
(Thomas, J., concurring). “Although courts of equity
exercised remedial `discretion,' that discretion allowed them
to deny or tailor a remedy despite a demonstrated violation
of a right, not to expand a remedy beyond its traditional
scope.” Trump, 585 U. S., at 716 (Thomas, J., concurring).
The majority, while imposing some limits, ultimately permits
courts to continue expanding equitable remedies. I would
simply hold that the phrase “equitable relief ” in § 78u(d)(5)
does not authorize disgorgement.
II
After holding that disgorgement is equitable relief, the
majority remands for the lower courts to reconsider the dis-
gorgement order in this case. If the majority is going to
accept “disgorgement” as an available remedy, it should at
least limit the order to be consistent with the traditional
rules of equity. First, the order should be limited to each
petitioner's profts. Second, the order should not be im-
posed jointly and severally. Third, the money paid by peti-
tioners should be used to compensate petitioners' victims.
A
First, the disgorgement order should be limited to “the
profts actually made” by each petitioner. Mowry v. Whit-
ney, 14 Wall. 620, 649 (1872); see also ante, at 83–84, 91–92.
Defendants in equity traditionally may deduct “allowances
. . . for the cost and expense of the business” from the amount
of the award. Root v. Railway Co., 105 U. S. 189, 215 (1882);
see also Callaghan v. Myers, 128 U. S. 617, 665 (1888); Eliza-
beth v. Pavement Co., 97 U. S. 126, 139 (1878); Rubber Co. v.
Goodyear, 9 Wall. 788, 804 (1870). The rationale behind this
rule is that “[i]t is not the function of courts of equity to
administer punishment.” Bangor Punta Operations, Inc. v.
Bangor & Aroostook R. Co., 417 U. S. 703, 717–718, n. 14
(1974) (internal quotation marks omitted); see also 2 J. Story,

Cite
as: 591 U. S. 71 (2020)
101
Thomas, J., dissenting
Commentaries on Equity Jurisprudence § 1494, p. 819 (13th
ed.
1886). Here, however, the District Court reasoned that
“it would be `unjust to permit the defendants to offset
against the investor dollars they received the expenses of
running the very business they created to defraud those in-
vestors into giving the defendants the money in the frst
place.' ” 754 Fed. Appx. 505, 509 (CA9 2018) (quoting SEC
v. J. T. Wallenbrock & Assocs., 440 F. 3d 1109, 1114 (CA9
2006)). On remand, the lower courts should limit the award
to each petitioner's profts.
B
Second, and relatedly, the disgorgement order should not
be imposed jointly and severally. The majority analogizes
disgorgement to accounting, ante, at 79, but this Court has
rejected joint and several liability in actions for an account-
ing. Elizabeth, supra, at 139–140; Keystone Mfg. Co. v.
Adams, 151 U. S. 139, 148 (1894); Belknap v. Schild, 161 U. S.
10, 25–26 (1896). The majority instructs the lower courts to
determine whether petitioners were “partners in wrongdo-
ing,” apparently based on a case about the liability of part-
ners. Ante, at 82–83, 91 (citing Ambler v. Whipple, 20 Wall.
546 (1874)). But the liability in that case was premised on
the law of partnership, and nothing indicates that petitioners
here were legal partners. The joint and several order in
this case is thus at odds with traditional equitable rules.
3
3
For its part, respondent cites the joint and several liability in Jackson
v. Smith, 254 U. S. 586, 589 (1921), but the remedy in that case was a
constructive trust, see Smith v. Jackson, 48 App. D. C. 565, 576 (1919).
As explained above, there is no tracing requirement in the District Court's
order as would be required in a case of constructive trust. Supra, at 98.
The Court also allowed joint and several liability in Bel ford v. Scribner,
144 U. S. 488 (1892), a copyright case. But it based its holding on the
fact that, under the relevant copyright statute, “both the printer and the
publisher are equally liable to the owner of the copyright for an infringe-
ment.” Id., at 507; see also Washingtonian Publishing Co. v. Pearson,
140 F. 2d 465, 467 (CADC 1944).

102 LIU
v. SEC
Thomas, J., dissenting
C
Fi
nally, the award should be used to compensate victims,
not to enrich the Government. Plaintiffs in equity may
claim “that which, ex aequo et bono [according to what is
equitable and good], is theirs, and nothing beyond this.”
Livingston v. Woodworth, 15 How. 546, 560 (1854). The
money ordered to be paid as disgorgement in no sense be-
longs to the Government, and the majority cites no authority
allowing a Government agency to keep equitable relief for a
wrong done to a third party. Requiring the SEC to only
“generally” compensate victims, ante, at 88, is inconsistent
with traditional equitable principles.
Worse still from a practical standpoint, the majority pro-
vides almost no guidance to the lower courts about how to
resolve this question on remand. Even assuming that dis-
gorgement is “equitable relief ” for purposes of § 78u(d)(5)
and that the Government may sometimes keep the money,
the Court should at least do more to identify the circum-
stances in which the Government may keep the money. In-
stead, the Court asks lower courts to improvise a solution.
If past is prologue, this uncertainty is sure to create opportu-
nities for the SEC to continue exercising unlawful power.
***
I would reverse for the straightforward reason that dis-
gorgement is not “equitable relief ” within the meaning of
§ 78u(d)(5). Because the majority acquiesces in the contin-
ued use of disgorgement under that statute, I respectfully
dissent.

OCTOBER
TERM, 2019
103
Syllabus
DEPARTMENT OF HOMELAND SECURITY et al. v.
THURAISSIGIAM
certiorari
to the united states court of appeals for
the ninth circuit
No. 19–161. Argued March 2, 2020—Decided June 25, 2020
The I l lega l Immigrati on Refor m and Immigrant Responsibility Act
(IIRIRA) provides for the expedited removal of certain “applicants”
seeking admission into the United States, whether at a designated port
of entry or elsewhere. 8 U. S. C. § 1225(a)(1). An applicant may avoid
expedited removal by demonstrating to an asylum offcer a “credible
fear of persecution,” defned as “a signifcant possibility . . . that the
alien could establish eligibility for asylum.” § 1225(b)(1)(B)(v). An ap-
plicant who makes this showing is entitled to “full consideration” of an
asylum claim in a standard removal hearing. 8 CFR § 208.30(f ). An
asylum offcer's rejection of a credible-fear claim is reviewed by a super-
visor and may then be appealed to an immigration judge. §§ 208.30(e)(8),
1003.42(c), (d)(1). But IIRIRA limits the review that a federal court
may conduc t on a petiti on for a wr it of habeas corpus. 8 U. S. C.
§ 1252(e)(2). In particular, courts may not review “the determination”
that an applicant lacks a credible fear of persecution. § 1252(a)(2)(A)(iii).
Respondent Vijayakumar Thuraissigiam is a Sri Lankan national who
was stopped just 25 yards after crossing the southern border without
inspection or an entry document. He was detained for expedited re-
moval. An asylum offcer rejected his credible-fear claim, a supervising
offcer agreed, and an Immigration Judge affrmed. Respondent then
fled a federal habeas petition, asserting for the frst time a fear of perse-
cution based on his Tamil ethnicity and political views and requesting a
new opportunity to apply for asylum. The District Court dismissed the
petition, but the Ninth Circuit reversed, holding that, as applied here,
§ 1252(e)(2) violates the Suspension Clause and the Due Process Clause.
Held:
1. As applied here, § 1252(e)(2) does not v i olate the Suspensi on
Clause. Pp. 116–138.
(a) The Suspension Clause provides that “[t]he Privilege of the Writ
of Habeas Corpus shall not be suspended, unless when in Cases of Re-
bellion or Invasion the public Safety may require it.” Art. I, § 9, cl. 2.
This Court has held that, at a minimum, the Clause “protects the writ
as it existed in 1789,” when the Constitution was adopted. INS v.
St. Cyr, 533 U. S. 289, 301. Habeas has traditionally provided a means

104 DEP
ARTMENT OF HOMELAND SECURITY v.
THURAISSIGIAM
Syllabus
to seek release from unlawful detention. Respondent does not seek re-
lease
from custody, but an additional opportunity to obtain asylum. His
claims therefore fall outside the scope of the writ as it existed when the
Constitution was adopted. Pp. 116–120.
(b) Respondent contends that three bodies of case law support his
argument that the Suspension Clause guarantees a broader habeas
right, but none do. Pp. 120–138.
(1) Respondent frst points to British and American cases decided
before or around the Constitution's adoption. All those cases show is
that habeas was used to seek release from detention in a variety of
circumstances. Respondent argues that some cases show aliens using
habeas to remain in a country. But the relief ordered in those cases
was simply release; an alien petitioner's ability to remain in the country
was due to immigration law, or lack thereof. The relief that a habeas
court may order and the collateral consequences of that relief are two
entirely different things. Pp. 120–127.
(2) Although respondent claims to rely on the writ as it existed
in 1789, his argument focuses on this Court's decisions during the “fnal-
ity era,” which takes its name from a feature of the Immigration Act of
1891 making certain immigration decisions “fnal.” In Nishimura Ekiu
v. United States, 142 U. S. 651, the Court interpreted the Act to preclude
judicial review only of questions of fact. Federal courts otherwise re-
tained authority under the Habeas Corpus Act of 1867 to determine
whether an alien was detained in violation of federal law. Thus, when
aliens sought habeas relief during the fnality era, the Court exercised
habeas jurisdiction that was conferred by the habeas statute, not be-
cause it was required by the Suspension Clause—which the Court did
not mention. Pp. 128–136.
(3) The Court's more recent decisions in Boumediene v. Bush,
553 U. S. 723, and St. Cyr, 533 U. S. 289, also do not support respondent's
argument. Boumediene was not about immigration at all, and St. Cyr
reaffrmed that the common-law habeas writ provided a vehicle to chal-
lenge detention and could be invoked by aliens already in the country
who were held in custody pending deportation. It did not approve re-
spondent's very different attempted use of the writ. Pp. 136–138.
2. As applied here, § 1252(e)(2) does not violate the Due Process
Clause. More than a century of precedent establishes that, for aliens
seeking initial entry, “the decisions of executive or administrative off-
cers, acting within powers expressly conferred by Congress, are due
process of law.” Nishimura Ekiu, 142 U. S., at 660. Respondent ar-
gues that this rule does not apply to him because he succeeded in mak-
ing it 25 yards into U. S. territory. But the rule would be meaningless
if it became inoperative as soon as an arriving alien set foot on U. S.

Cite
as: 591 U. S. 103 (2020)
105
Syllabus
soil. An alien who is detained shortly after unlawful entry cannot be
said
to have “effected an entry.” Zadvydas v. Davis, 533 U. S. 678,
693. An alien in respondent's position, therefore, has only those rights
regarding admission that Congress has provided by statute. In re-
spondent's case, Congress provided the right to a “determin[ation]”
whether he had “a signifcant possibility” of “establish[ing] eligibility
for asylum, ” and he was g iven that right. §§ 1225( b)(1)(B)( ii), (v).
Pp. 138–141.
917 F. 3d 1097, reversed and remanded.
Alito, J., delivered the opinion of the Court, in which Roberts, C. J.,
and Thomas, Gorsuch, and Kavanaugh, JJ., joined. Thomas, J., fled a
concurring opinion, post, p. 141. Breyer, J., fled an opinion concurring
in the judgment, in which Ginsburg, J., joined, post, p. 150. Sotomayor,
J., fled a dissenting opinion, in which Kagan, J., joined, post, p. 158.
Deputy Solicitor General Kneedler argued the cause for
petitioners. With him on the briefs were Solicitor General
Francisco, Assistant Attorney General Hunt, Morgan L.
Ratner, Erez Reuveni, and Joshua S. Press.
Lee Gelernt argued the cause for respondent. With him
on the brief were Omar C. Jadwat, Jonathan Hafetz, Celso J.
Perez, David D. Cole, Cody Wofsy, Stephen B. Kang, Morgan
Russell, Cecillia D. Wang, and Lucas Guttentag.*
*Briefs of amici curiae urging reversal were fled for the State of Ari-
zona et al. by Mark Brnovich, Attorney General of Arizona, Oramel H.
Skinner, Solicitor General, Rusty D. Crandell, Deputy Solicitor General,
Kate B. Sawyer, Assistant Solicitor General, Katherine H. Jessen, Assist-
ant Attorney General, Joseph A. Kanefeld, and Brunn W. Roysden III,
and by the Attorneys General for their respective States as follows: Steve
Marshall of Alabama, Kevin G. Clarkson of Alaska, Leslie Rutledge of
Arkansas, Curtis T. Hill, Jr., of Indiana, Jeff Landry of Louisiana, Doug-
las Peterson of Nebraska, Alan Wilson of South Carolina, Jason Ravns-
borg of South Dakota, and Ken Paxton of Texas; for the Criminal Justice
Legal Foundation by Kent S. Scheidegger and Kymberlee C. Stapleton;
and for the Immigration Law Reform Institute by Christopher J. Hajec
and Lawrence J. Joseph.
Briefs of amici curiae urging affrmance were fled for the State of
Illinois et al. by Kwame Raoul, Attorney General of Illinois, Jane Elinor
Notz, Solicitor General, and Sarah A. Hunger, Deputy Solicitor General,
and by the Attorneys General for their respective jurisdictions as follows:

106 DEP
ARTMENT OF HOMELAND SECURITY v.
THURAISSIGIAM
Opinion of the Court
Justice Alito delivered the opinion of the Court.
E
very year, hundreds of thousands of aliens are appre-
hended at or near the border attempting to enter this coun-
try illegally. Many ask for asylum, claiming that they would
be persecuted if returned to their home countries. Some of
these claims are valid, and by granting asylum, the United
States lives up to its ideals and its treaty obligations. Most
asylum claims, however, ultimately fail, and some are fraudu-
lent. In 1996, when Congress enacted the Illegal Immigra-
tion Reform and Immigrant Responsibility Act (IIRIRA),
110 Stat. 3009–546, it crafted a system for weeding out pat-
ently meritless claims and expeditiously removing the aliens
making such claims from the country. It was Congress's
judgment that detaining all asylum seekers until the full-
blown removal process is completed would place an unaccept-
able burden on our immigration system and that releasing
them would present an undue risk that they would fail to
appear for removal proceedings.
This case concerns the constitutionality of the system Con-
gress devised. Among other things, IIRIRA placed restric-
tions on the ability of asylum seekers to obtain review under
the federal habeas statute, but the United States Court of
Xavier Becerra of California, William Tong of Connecticut, Kathleen Jen-
nings of Delaware, Karl A. Racine of the District of Columbia, Clare E.
Connors of Hawaii, Aaron M. Frey of Maine, Brian E. Frosh of Maryland,
Maura Healey of Massachusetts, Dana Nessel of Michigan, Keith Ellison
of Minnesota, Gurbir S. Grewal of New Jersey, Hector Balderas of New
Mexico, Letitia James of New York, Ellen F. Rosenblum of Oregon, Josh
Shapiro of Pennsylvania, Peter F. Neronha of Rhode Island, Thomas J.
Donovan, Jr., of Vermont, Mark R. Herring of Virginia, and Robert W.
Ferguson of Washington; for the American Bar Association by Pratik A.
Shah, James E. Tysse, and Judy Perry Martinez; for Asylum Law Profes-
sors by Roy T. Englert, Jr., and Wendy Liu; for Immigration and Human
Rights Organizations by Matthew E. Price; for Immigration Scholars by
Joshua S. Lipshutz and Adam Cox and Cristina Rodríguez, both pro se; for
International Lawyers by Curtis Doebbler; for Legal Historians by Michael
J. Wishnie, Anton Metlitsky, and Jennifer B. Sokoler; for Scholars of the
Law of Habeas Corpus by Noah A. Levine; and for Sri Lankan Politics by
Leo L. Lam, Anjali Srinivasan, and Candice Mai Khanh Nguyen.

Cite
as: 591 U. S. 103 (2020)
107
Opinion of the Court
Appeals for the Ninth Circuit held that these restrictions
are
unconstitutional. According to the Ninth Circuit, they
unconstitutionally suspend the writ of habeas corpus and vio-
late asylum seekers' right to due process. We now review
that decision and reverse.
Respondent's Suspension Clause argument fails because it
would extend the writ of habeas corpus far beyond its scope
“when the Constitution was drafted and ratifed.” Boume-
diene v. Bush, 553 U. S. 723, 746 (2008). Indeed, respond-
ent's use of the writ would have been unrecognizable at that
time. Habeas has traditionally been a means to secure re-
lease from unlawful detention, but respondent invokes the
writ to achieve an entirely different end, namely, to obtain
additional administrative review of his asylum claim and ulti-
mately to obtain authorization to stay in this country.
Respondent's due process arg ument fares no better.
While aliens who have established connections in this coun-
try have due process rights in deportation proceedings, the
Court long ago held that Congress is entitled to set the con-
ditions for an alien's lawful entry into this country and that,
as a result, an alien at the threshold of initial entry cannot
claim any greater rights under the Due Process Clause. See
Nishimura Ekiu v. United States, 142 U. S. 651, 660 (1892).
Respondent attempted to enter the country illegally and was
apprehended just 25 yards from the border. He therefore
has no entitlement to procedural rights other than those af-
forded by statute.
In short, under our precedents, neither the Suspension
Clause nor the Due Process Clause of the Fifth Amend-
ment requires any further review of respondent's claims, and
IIRIRA's limitations on habeas review are constitutional as
applied.
I
A
We begin by briefy outlining the provisions of immigra-
tion law that are pertinent to this case. Under those provi-

108 DEP
ARTMENT OF HOMELAND SECURITY v.
THURAISSIGIAM
Opinion of the Court
sions, several classes of aliens are “inadmissible” and there-
fore
“removable.” 8 U. S. C. §§ 1182, 1229a(e)(2)(A). These
include aliens who lack a valid entry document “at the
time of application for admission.” § 1182(a)(7)(A)(i)(I). An
alien who arrives at a “port of entry,” i. e., a place where an
alien may lawfully enter, must apply for admission. An
alien like respondent who is caught trying to enter at some
other spot is treated the same way. §§ 1225(a)(1), (3).
If an alien is inadmissible, the alien may be removed. The
usual removal process involves an evidentiary hearing before
an immigration judge, and at that hearing an alien may
attempt to show that he or she should not be removed.
Among other things, an alien may apply for asylum on the
ground that he or she would be persecuted if returned to
his or her home country. § 1229a(b)(4); 8 CFR § 1240.11(c)
(2020). If that claim is rejected and the alien is ordered
removed, the alien can appeal the removal order to the
Board of Immigration Appeals and, if that appeal is unsuc-
cessful, the alien is generally entitled to review in a federal
court of appeals. 8 U. S. C. §§ 1229a(c)(5), 1252(a). As of
the frst quarter of this fscal year, there were 1,066,563
pending removal proceedings. See Executive Offce for Im-
migration Review (EOIR), Adjudication Statistics: Pending
Cases (Jan. 2020). The average civil appeal takes approxi-
mately one year.
1
During the time when removal is being
litigated, the alien will either be detained, at considerable
expense, or allowed to reside in this country, with the attend-
ant risk that he or she may not later be found. § 1226(a).
Congress addressed these problems by providing more ex-
pedited procedures for certain “applicants for admission.”
1
See Administrative Offce of the U. S. Courts, Federal Judicial Caseload
Statistics, U. S. Courts of Appeals—Median Time Intervals in Months for
Civil and Criminal Appeals Terminated on the Merits (2019) (Table B–4A)
(time calculated for non-prisoner appeals from the fling of a notice of
appeal to the last opinion or fnal order).

Cite
as: 591 U. S. 103 (2020)
109
Opinion of the Court
For these purposes, “[a]n alien present in the United States
who
has not been admitted or who arrives in the United
States (whether or not at a designated port of arrival . . . )”
is deemed “an applicant for admission.” § 1225(a)(1).
2
An
applicant is subject to expedited removal if, as relevant here,
the applicant (1) is inadmissible because he or she lacks a
valid entry document; (2) has not “been physically present
in the United States continuously for the 2-year period im-
mediately prior to the date of the determination of inadmis-
sibility”; and (3) is among those whom the Secretary of
Homeland Security has designated for expedited removal.
§§ 1225(b)(1)(A)(i), (iii)(I)–(II).
3
Once “an immigration off-
cer determines” that a designated applicant “is inadmis-
sible,” “the offcer [must] order the alien removed from
the United St ates w ithout fur ther hear i ng or review. ”
§ 1225(b)(1)(A)(i).
Applicants can avoid expedited removal by claiming asy-
lum. If an applicant “indicates either an intention to apply
for asylum” or “a fear of persecution,” the immigration off-
cer “shall refer the alien for an interview by an asylum off-
cer.” §§ 1225(b)(1)(A)(i)–(ii). The point of this screening
interview is to determine whether the applicant has a “credi-
ble fear of persecution.” § 1225(b)(1)(B)(v). The applicant
need not show that he or she is in fact eligible for asylum—
a “credible fear” equates to only a “signifcant possibility”
that the alien would be eligible. Ibid. Thus, while eligibil-
ity ultimately requires a “well-founded fear of persecution on
account of,” among other things, “race” or “political opinion,”
2
When respondent entered the country, aliens were treated as appli-
cants for admission if they were “encountered within 14 days of entry
without inspection and within 100 air miles of any U. S. international land
border.” 69 Fed. Reg. 48879 (2004).
3
This authority once belonged to the Attorney General, who is still
named in the statute. See 6 U. S. C. § 251(2) (transferring authority over
“[t]he detention and removal program” to the Department).

110 DEP
ARTMENT OF HOMELAND SECURITY v.
THURAISSIGIAM
Opinion of the Court
§§ 1101(a)(42)(A), 1158(b)(1)(A), all that an alien must show
to
avoid expedited removal is a “credible fear.”
4
If the asylum offcer fnds an applicant's asserted fear to
be credible,
5
the applicant will receive “full consideration”
of his asylum claim in a standard removal hearing. 8 CFR
§ 208.30(f ); see 8 U. S. C. § 1225(b)(1)(B)(ii). If the asylum of-
fcer fnds that the applicant does not have a credible fear, a
supervisor will review the asylum offcer's determination. 8
CFR § 208.30(e)(8). If the supervisor agrees with it, the ap-
plicant may appeal to an immigration judge, who can take
further evidence and “shall make a de novo determination.”
§§ 1003.42(c), (d)(1); see 8 U. S. C. § 1225(b)(1)(B)(iii)(III).
An alien subject to expedited removal thus has an oppor-
tunity at three levels to obtain an asylum hearing, and the
applicant will obtain one unless the asylum offcer, a supervi-
sor, and an immigration judge all fnd that the applicant has
not asserted a credible fear.
4
A grant of asylum enables an alien to enter the country, but even
i f an applicant qua li fies, an ac tua l grant of asylum is discreti onary.
§ 1158(b)(1)(A).
5
The asylum offcer also considers an alien's potential eligibility for
withholding of removal under § 1231(b)(3) or relief under the Convention
Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (CAT). 8 CFR §§ 208.30(e)(2)–(3). Respondent's habeas pe-
tition alleges that “he can show a signifcan[t] possibility that he could
establish eligibility for asylum, withholding of removal, and CAT claims.”
App. 31–32. But he says in his petition that he left Sri Lanka “to seek
asylum in the United States.” Id., at 15. He discusses the criteria only
for asylum. Id., at 21; see also Brief for Respondent 4. And he now
alleges that he was improperly “denied asylum.” Id., at 5. Moreover,
the gravamen of his petition is that he faces persecution in Sri Lanka
“because of ” his Tamil ethnicity and political opinions. App. 13. To ob-
tain withholding or CAT relief on that basis, he would need to show
“a greater likelihood of persecution or torture at home than is necessary
for asylum.” Moncrieffe v. Holder, 569 U. S. 184, 187–188, n. 1 (2013).
And he would not avoid removal, only removal to Sri Lanka. 8 U. S. C.
§ 1231(b)(3)(A); 8 CFR § 208.16(f ). We therefore read his petition as it is
plainly intended: to seek another opportunity to apply for asylum.

Cite
as: 591 U. S. 103 (2020)
111
Opinion of the Court
Over the last fve years, nearly 77% of screenings have
resu
lted in a fnding of credible fear.
6
And nearly half the
remainder (11% of the total number of screenings) were
closed for administrative reasons, including the alien's with-
drawal of the claim.
7
As a practical matter, then, the great
majority of asylum seekers who fall within the category sub-
ject to expedited removal do not receive expedited removal
and are instead afforded the same procedural rights as
other aliens.
Whether an applicant who raises an asylum claim receives
full or only expedited review, the applicant is not entitled to
immediate release. Applicants “shall be detained pending a
fnal determination of credible fear of persecution and, if
found not to have such a fear, until removed.” § 1225(b)(1)
(B)(iii)(IV). Applicants who are found to have a credible
fear may also be detained pending further consideration of
their asylum applications. § 1225(b)(1)(B)(ii); see Jennings
v. Rodriguez, 583 U. S. 281, 287, 297 (2018).
8
B
The IIRIRA provision at issue in this case, § 1252(e)(2),
limits the review that an alien in expedited removal may
obtain via a petition for a writ of habeas corpus. That pro-
vision allows habeas review of three matters: frst, “whether
the petitioner is an alien”; second, “whether the petitioner
was ordered removed”; and third, whether the petitioner has
already been granted entry as a lawful permanent resident,
refugee, or asylee. §§ 1252(e)(2)(A)–(C). If the petitioner
has such a status, or if a removal order has not “in fact”
6
See GAO, Immigration: Actions Needed To Strengthen USCIS's Over-
sight and Data Quality of Credible and Reasonable Fear Screenings 13–
15, and fg. 2 (GAO–20–250, Feb. 2020).
7
See id., at 16, n. b.
8
The Department may grant temporary parole “for urgent humanitarian
reasons or signifcant public beneft.” 8 U. S. C. § 1182(d)(5)(A); see also
8 CFR §§ 212.5(b), 235.3(b)(2)(iii), and (b)(4)(ii).

112 DEP
ARTMENT OF HOMELAND SECURITY v.
THURAISSIGIAM
Opinion of the Court
been “issued,” § 1252(e)(5), the court may order a removal
hear
ing, § 1252(e)(4)(B).
A major objective of IIRIRA was to “protec[t] the Execu-
tive's discretion” from undue interference by the courts;
indeed, “that can fairly be said to be the theme of the leg-
islation. ” Reno v. Amer ican-Arab Anti-D iscr imination
Comm., 525 U. S. 471, 486 (1999) (AAADC). In accordance
with that aim, § 1252(e)(5) provides that “[t]here shall be no
review of whether the alien is actually inadmissible or enti-
tled to any relief from removal.” And “[n]otwithstanding ”
any other “habeas corpus provision”—including 28 U. S. C.
§ 2241—“no court shall have jurisdiction to review” any
other “individual determination” or “claim arising from or
relating to the implementation or operation of an order
of [expedited] removal.” § 1252(a)(2)(A)(i). In particular,
courts may not review “the determination” that an alien
lacks a credible fear of persecution. § 1252(a)(2)(A)(iii); see
also §§ 1252(a)(2)(A)(ii), (iv) (other specifc limitations).
Even without the added step of judicial review, the
credible-fear process and abuses of it can increase the bur-
dens currently “overwhelming our immigration system.” 84
Fed. Reg. 33841 (2019).
9
The past decade has seen a 1,883%
9
References to the factual material in this regulation are not endorse-
ments of the regulation itself. And like the immigration offcials in this
case, we do not question the basis for respondent's asserted fear. See
in fra, at 114. But we note the Department's view that credible-fear
claims can be asserted “in the hope of a lengthy asylum process that will
enable [the claimants] to remain in the United States for years . . . despite
their statutory ineligibility for relief ” and that an infux of meritless claims
can delay the adjudication of meritorious ones; strain detention capacity
and degrade detention conditions; cause the release of many inadmissible
aliens into States and localities that must shoulder the resulting costs;
divert Department resources from protecting the border; and aggravate
“the humanitarian crisis created by human smugglers.” 84 Fed. Reg.
33831; see also, e. g., Violent Crime Control and Law Enforcement Act of
1994, § 130010(a)(3)(C), 108 Stat. 2030 (legislative fnding of “a drain on
limited resources resulting from the high cost of processing frivolous asy-
lum claims”); Arizona v. United States, 567 U. S. 387, 397–398 (2012);

Cite
as: 591 U. S. 103 (2020)
113
Opinion of the Court
increase in credible-fear claims, and in 2018 alone, there were
99,035
claims. See id., at 33838 (data for fscal years 2008
to 2018). The majority have proved to be meritless. Many
applicants found to have a credible fear—about 50% over the
same 10-year period—did not pursue asylum. See EOIR,
Adjudication Statistics: Rates of Asylum Filings in Cases
Originating With a Credible Fear Claim (Nov. 2018); see also
84 Fed. Reg. 33841 (noting that many instead abscond). In
2019, a grant of asylum followed a fnding of credible fear
just 15% of the time. See EOIR, Asylum Decision Rates in
Cases Originating With a Credible Fear Claim (Oct. 2019).
Fraudulent asylum claims can also be diffcult to detect,
10
especially in a screening process that is designed to be expe-
dited and that is currently handling almost 100,000 claims
per year.
The question presented thus has signifcant consequences
for the immigration system. If courts must review credible-
fear claims that in the eyes of immigration offcials and an
immigration judge do not meet the low bar for such claims,
expedited removal would augment the burdens on that sys-
tem. Once a fear is asserted, the process would no longer
be expedited.
Homeland Security Advisory Council, Final Emergency Interim Report 1,
7–8 (Apr. 16, 2019); Letter from K. Nielsen, Secretary of Homeland Secu-
rity, to Members of Congress 1–2 (Mar. 28, 2019); GAO, Asylum: Additional
Actions Needed To Assess and Address Fraud Risks 24 (GAO–16–50, Dec.
2015) (GAO Fraud Report); Congressional Budget Offce, The Impact of
Unauthorized Immigrants on the Budgets of State and Local Governments
8–9 (Dec. 2007); Brief for State of Arizona et al. as Amici Curiae 9–12.
10
See, e. g., GAO Fraud Report 32–33 (discussing Operation Fiction
Writer, a criminal investigation of attorneys and application preparers
who counseled asylum seekers to lie about religious persecution and forced
abortions); Asylum Fraud: Abusing America's Compassion? Hearing be-
fore the Subcommittee on Immigration and Border Security of the House
Committee on the Judiciary, 113th Cong., 2d Sess. (2014) (testimony of
Louis D. Crocetti, Jr.) (describing study in which 58% of randomly selected
asylum applications exhibited indicators of possible fraud and 12% were
determined to be fraudulent).

114 DEP
ARTMENT OF HOMELAND SECURITY v.
THURAISSIGIAM
Opinion of the Court
C
Respondent
Vijayakumar Thuraissigiam, a Sri Lankan na-
tional, crossed the southern border without inspection or an
entry document at around 11 p.m. one night in January 2017.
App. 38. A Border Patrol agent stopped him within 25
yards of the border, and the Department detained him for
expedited removal. Id., at 37–39, 106; see §§ 1182(a)(7)
(A)(i)(I), 1225(b)(1)(A)(ii), and (b)(1)(B)(iii)(IV). He claimed
a fear of returning to Sri Lanka because a group of men had
once abducted and severely beaten him, but he said that he
did not know who the men were, why they had assaulted
him, or whether Sri Lankan authorities would protect him
in the future. Id., at 80. He also affrmed that he did not
fear persecution based on his race, political opinions, or other
protected characteristics. Id., at 76–77; see § 1101(a)(42)(A).
The asylum offcer credited respondent's account of the as-
sault but determined that he lacked a “credible” fear of per-
secution, as defned by § 1225(b)(1)(B)(v), because he had of-
fered no evidence that could have made him eligible for
asylum (or other removal relief ). Id., at 83, 87, 89; see
§ 1158(b)(1)(A). The supervising offcer agreed and signed
the removal order. Id., at 54, 107. After hearing further
testimony from respondent, an Immigration Judge affrmed
on de novo review and returned the case to the Department
for removal. Id., at 97.
Respondent then fled a federal habeas petition. Assert-
ing for the frst time a fear of persecution based on his Tamil
ethnicity and political views, id., at 12–13, he argued that he
“should have passed the credible fear stage,” id., at 30. But,
he alleged, the immigration offcials deprived him of “a
meaningful opportunity to establish his claims” and violated
credible-fear procedures by failing to probe past his denial
of the facts necessary for asylum. Id., at 27, 32. Allegedly
they also failed to apply the “correct standard” to his
claims—the “signifcant possibility” standard—despite its re-
peated appearance in the records of their decisions. Id., at

Cite
as: 591 U. S. 103 (2020)
115
Opinion of the Court
30; see id., at 53, 84–89, 97. Respondent requested “a writ
of
habeas corpus, an injunction, or a writ of mandamus di-
recting [the Department] to provide [him] a new opportunity
to apply for asylum and other applicable forms of relief.”
Id., at 33. His petition made no mention of release from
custody.
The District Court dismissed the petition, holding that
§§ 1252(a)(2) and (e)(2) and clear Ninth Circuit case law
foreclosed review of the negative credible-fear determination
that resulted in respondent's expedited removal order. 287
F. Supp. 3d 1077, 1081 (SD Cal. 2018). The court also re-
jected respondent's argument “that the jurisdictional limita-
tions of § 1252(e) violate the Suspension Clause,” again rely-
ing on Circuit precedent. Id., at 1082–1083.
The Ninth Circuit reversed. It found that our Suspension
Clause precedent demands “reference to the writ as it stood
in 1789.” 917 F. 3d 1097, 1111 (2019). But without citing
any pre-1789 case about the scope of the writ, the court held
that § 1252(e)(2) violates the Suspension Clause. See id., at
1113–1119. The court added that respondent “has proce-
dural due process rights,” specifcally the right “ `to expe-
dited removal proceedings that conformed to the dictates of
due process.' ” Id., at 1111, n. 15 (quoting United States v.
Raya-Vaca, 771 F. 3d 1195, 1203 (CA9 2014)). Although the
decision applied only to respondent, petitioners across the
Circuit have used it to obtain review outside the scope of
§ 1252(e)(2), and petitioners elsewhere have attempted to fol-
low suit.
11
11
See, e. g., Mnatsakanyan v. United States Dept. of Homeland Secu-
rity, 2020 WL 1245371, *5 (SD Cal., Mar. 16, 2020) (“Given the identical
claims here as in Thuraissigiam, the Court concludes it has jurisdiction
over Petitioner's habeas petition under the Suspension Clause”); Kaur v.
Barr, 2019 WL 4974425, *3 (D Ariz., Oct. 8, 2019) (granting stay of
removal in light of the decision below); Rodrigues v. McAleenan, 435 F.
Supp. 3d 731, 734, 738 (ND Tex. 2020) (declining to follow the decision
below).

116 DEP
ARTMENT OF HOMELAND SECURITY v.
THURAISSIGIAM
Opinion of the Court
The Ninth Circuit's decision invalidated the application of
an
important provision of federal law and conficted with a
decision from another Circuit, see Castro v. United States
Dept. of Homeland Security, 835 F. 3d 422 (CA3 2016). We
granted certiorari, 589 U. S. 1030 (2019).
II
A
The Suspension Clause provides that “[t]he Privilege of
the Writ of Habeas Corpus shall not be suspended, unless
when in Cases of Rebellion or Invasion the public Safety may
require it.” U. S. Const., Art. I, § 9, cl. 2. In INS v. St. Cyr,
533 U. S. 289 (2001), we wrote that the Clause, at a minimum,
“protects the writ as it existed in 1789,” when the Constitu-
tion was adopted. Id., at 301 (internal quotation marks
omitted). And in this case, respondent agrees that “there
is no reason” to consider whether the Clause extends any
further. Brief for Respondent 26, n. 12. We therefore pro-
ceed on that basis.
12
12
The original meaning of the Suspension Clause is the subject of con-
troversy. In INS v. St. Cyr, 533 U. S. 289 (2001), the majority and dissent
debated whether the Clause independently guarantees the availability of
the writ or simply restricts the temporary withholding of its operation.
Compare id., at 300, with id., at 336–341 (Scalia, J., dissenting). See also
Ex parte Bollman, 4 Cranch 75, 95 (1807). We do not revisit that ques-
tion. Nor do we consider whether the scope of the writ as it existed in
1789 defnes the boundary of the constitutional protection to which the
St. Cyr Court referred, since the writ has never encompassed respond-
ent's claims.
We also do not reconsider whether the common law allowed the issuance
of a writ on behalf of an alien who lacked any allegiance to the country.
Compare Boumediene v. Bush, 553 U. S. 723, 746–747 (2008) (forming “no
certain conclusions”), with Brief for Criminal Justice Legal Foundation as
Amicus Curiae 5–13. See also Hamburger, Beyond Protection, 109
Colum. L. Rev. 1823, 1847 (2009); P. Halliday, Habeas Corpus: From Eng-
land to Empire 204 (2010) (Halliday).

Cite
as: 591 U. S. 103 (2020)
117
Opinion of the Court
B
Th
is principle dooms respondent's Suspension Clause ar-
gument, because neither respondent nor his amici have
shown that the writ of habeas corpus was understood at the
time of the adoption of the Constitution to permit a peti-
tioner to claim the right to enter or remain in a country or
to obtain administrative review potentially leading to that
result. The writ simply provided a means of contesting the
lawfulness of restraint and securing release.
In 1768, Blackstone's Commentaries—usually a “satisfac-
tory exposition of the common law of England,” Schick v.
United States, 195 U. S. 65, 69 (1904)—made this clear.
Blackstone wrote that habeas was a means to “remov[e] the
injury of unjust and illegal confnement.” 3 W. Blackstone,
Commentaries on the Laws of England 137 (emphasis de-
leted). Justice Story described the “common law” writ the
same way. See 3 Commentaries on the Constitution of the
United States § 1333, p. 206 (1833). Habeas, he explained,
“is the appropriate remedy to ascertain . . . whether any
person is rightfully in confnement or not.” Ibid.
We have often made the same point. See, e. g., Preiser v.
Rodriguez, 411 U. S. 475, 484 (1973) (“It is clear . . . from the
common-law history of the writ . . . that the essence of ha-
beas corpus is an attack by a person in custody upon the
legality of that custody, and that the traditional function of
the writ is to secure release from illegal custody”); Wilkin-
son v. Dotson, 544 U. S. 74, 79 (2005) (similar); Munaf v.
Geren, 553 U. S. 674, 693 (2008) (similar).
In this case, however, respondent did not ask to be re-
leased.
13
Instead, he sought entirely different relief: vaca-
13
In his brief, respondent states that “he requests an entirely ordinary
habeas remedy: conditional release pending a lawful adjudication. J. A.
33.” Brief for Respondent 29. Citing the same page, the dissent argues
that respondent “asked the District Court to `[i]ssue a writ of habeas
corpus' without further limitation on the kind of relief that might en-

118 DEP
ARTMENT OF HOMELAND SECURITY v.
THURAISSIGIAM
Opinion of the Court
tur of his “removal order” and “an order directing [the De-
par
tment] to provide him with a new . . . opportunity to apply
for asylum and other relief from removal.” App. 14 (habeas
petition). See also id., at 31 (“a fair procedure to apply for
asylum, withholding of removal, and CAT relief ”); id., at 14
(“a new, meaningful opportunity to apply for asylum and
other relief from removal”). Such relief might ft an injunc-
tion or writ of mandamus—which tellingly, his petition also
requested, id., at 33—but that relief falls outside the scope
of the common-law habeas writ.
Although the historic role of habeas is to secure release
from custody, the Ninth Circuit did not suggest that release,
at least in the traditional sense of the term,
14
was required.
Instead, what it found to be necessary was a “meaningful
opportunity” for review of the procedures used in determin-
ing that respondent did not have a credible fear of persecu-
tion. 917 F. 3d, at 1117. Thus, even according to the Ninth
Circuit, respondent's petition did not call for traditional ha-
beas relief.
Not only did respondent fail to seek release, he does not
dispute that confnement during the pendency of expedited
asylum review, and even during the additional proceedings
he seeks, is lawful. Nor could he. It is not disputed that
he was apprehended in the very act of attempting to enter
this country; that he is inadmissible because he lacks an
tail.” Post, at 164 (opinion of Sotomayor, J.) (quoting App. 33). How-
ever, neither on the cited page nor at any other place in the habeas petition
is release, conditional or otherwise, even mentioned. And in any event,
as we discuss in fra, at 120–125, the critical point is that what he sought
in the habeas petition and still seeks—a writ “directing [the Department]
to provide [him] a new opportunity to apply for asylum,” App. 33—is not
a form of relief that was available in habeas at the time of the adoption of
the Constitution.
14
Although the Ninth Circuit never mentioned release, its opinion might
be read to suggest that gaining a right to remain in this country would
constitute a release from the “restraint” of exclusion. See 917 F. 3d 1097,
1117 (2019). No evidence has been called to our attention that the writ
was understood in 1789 to apply to any comparable form of restraint.

Cite
as: 591 U. S. 103 (2020)
119
Opinion of the Court
entry document, see §§ 1182(a)(7)(A), 1225(b)(1)(A)(i); and
that,
under these circumstances, his case qualifes for the
expedited review process, including “[m]andatory detention”
during his credible-fear review, §§ 1225(b)(1)(B)(ii), (iii)(IV).
Moreover, simply releasing him would not provide the right
to stay in the country that his petition ultimately seeks.
Without a change in status, he would remain subject to ar-
rest, detention, and removal. §§ 1226(a), 1229a(e)(2).
While respondent does not claim an entitlement to release,
the Government is happy to release him—provided the re-
lease occurs in the cabin of a plane bound for Sri Lanka.
That would be the equivalent of the habeas relief Justice
Story ordered in a case while riding circuit. He issued a
writ requiring the release of a foreign sailor who jumped
ship in Boston, but he provided for the sailor to be released
into the custody of the master of his ship. Ex parte D'Oli-
vera, 7 F. Cas. 853, 854 (No. 3,967) (CC Mass. 1813).
Respondent does not want anything like that. His claim
is more reminiscent of the one we rejected in Munaf. In
that case, American citizens held in U. S. custody in Iraq fled
habeas petitions in an effort to block their transfer to Iraqi
authorities for criminal prosecution. See 553 U. S., at 692.
Rejecting this use of habeas, we noted that “[h]abeas is at
its core a remedy for unlawful executive detention” and that
what these individuals wanted was not “simple release” but
an order requiring them to be brought to this country. Id.,
at 693, 697. Claims so far outside the “core” of habeas
may not be pursued through habeas. See, e. g., Skinner v.
Switzer, 562 U. S. 521, 535, n. 13 (2011).
Like the habeas petitioners in Munaf, respondent does not
want “simple release” but, ultimately, the opportunity to re-
main lawfully in the United States. That he seeks to stay
in this country, while the habeas petitioners in Munaf asked
to be brought here from Iraq, see post, at 176–177 (opinion of
Sotomayor, J.), is immaterial. In this case as in Munaf, the
relief requested falls outside the scope of the writ as it was
understood when the Constitution was adopted. See Castro,

120 DEP
ARTMENT OF HOMELAND SECURITY v.
THURAISSIGIAM
Opinion of the Court
835 F. 3d, at 450–451 (Hardiman, J., concurring dubitante)
(“P
etitioners here seek to alter their status in the United
States in the hope of avoiding release to their homelands.
That prayer for relief . . . dooms the merits of their Suspen-
sion Clause argument” (emphasis deleted)).
III
Disputing this conclusion, respondent argues that the Sus-
pension Clause guarantees a broader habeas right. To sub-
stantiate this claim, he points to three bodies of case law:
British and American cases decided prior to or around the
time of the adoption of the Constitution, decisions of this
Court during the so-called “fnality era” (running from the
late 19th century to the mid-20th century), and two of
our more recent cases. None of these sources support his
argument.
A
Respondent and amici supporting his position have done
considerable research into the use of habeas before and
around the time of the adoption of the Constitution,
15
but
they have not unearthed evidence that habeas was then used
to obtain anything like what is sought here, namely, authori-
zation for an alien to remain in a country other than his own
or to obtain administrative or judicial review leading to that
result. All that their research (and the dissent's) shows is
that habeas was used to seek release from detention in a
variety of circumstances. In fact, respondent and his amici
do not argue that their cases show anything more. See
Brief for Respondent 27 (arguing that habeas was “available”
at the founding “to test all forms of physical restraint”);
15
Respondent and his amici rely primarily on British cases decided be-
fore the adoption of the Constitution. “There is widespread agreement
that the common-law writ of habeas corpus was in operation in all thirteen
of the British colonies that rebelled in 1776,” but “almost no reported
decisio[n] from the period.” Oldham & Wishnie, The Historical Scope of
Habeas Corpus and INS v. St. Cyr, 16 Geo. Immigration L. J. 485, 496
(2002) (Oldham & Wishnie) (internal quotation marks omitted).

Cite
as: 591 U. S. 103 (2020)
121
Opinion of the Court
Brief for Scholars of the Law of Habeas Corpus as Amici
Cur
iae 11 (the “historical record . . . demonstrates that the
touchstone for access to the writ” was “whether the peti-
tioner challenges control of his person”).
Because respondent seeks to use habeas to obtain some-
thing far different from simple release, his cause is not aided
by the many release cases that he and his amici have found.
Thus, for present purposes, it is immaterial that habeas was
used to seek release from confnement that was imposed for,
among other things, contempt of court (see Bushell's Case,
Vaugh. 135, 124 Eng. Rep. 1006 (C. P. 1670)), debt (see Hol-
lingshead's Case, 1 Salk. 351, 91 Eng. Rep. 307 (K. B. 1702);
Rex v. Nathan, 2 Str. 880, 93 Eng. Rep. 914 (K. B. 1724)),
medical malpractice (see Dr. Groenvelt's Case, 1 Raym. Ld.
213, 91 Eng. Rep. 1038 (K. B. 1702)), failing to pay an assess-
ment for sewers (see Hetley v. Boyer, Cro. Jac. 336, 79 Eng.
Rep. 287 (K. B. 1613)), failure to lend the King money (see
Darnel's Case, 3 How. St. Tr. 1 (K. B. 1627)), carrying an
authorized “dagg,” i. e., handgun (see Gardener's Case, Cro.
Eliz. 821, 78 Eng. Rep. 1048 (K. B. 1600)), “impressment” into
military service or involuntary servitude (see St. Cyr, 533
U. S., at 302), or refusing to pay a colonial tax (see Oldham &
Wishnie 496). Nor does it matter that common-law courts
sometimes ordered or considered ordering release in circum-
stances that would be beyond the reach of any habeas statute
ever enacted by Congress, such as release from private cus-
tody. See, e. g., Rex v. Delaval, 3 Burr. 1434, 1435–1437, 97
Eng. Rep. 913, 914 (K. B. 1763) (release of young woman from
“indentures of apprenticeship”); Rex v. Clarkson, 1 Str. 444,
93 Eng. Rep. 625 (K. B. 1722) (release from boarding school);
Lister's Case, 8 Mod. 22, 88 Eng. Rep. 17 (K. B. 1721) (release
of wife from estranged husband's restraint). What matters
is that all these cases are about release from restraint. Ac-
cord, Preiser, 411 U. S., at 484–485, and nn. 3–5.
16
16
Respondent's amici also point out that, during the English Civil War,
Parliament created a national religion and a “bewildering array of commit-
tees” to manage the war. Brief for Legal Historians as Amici Curiae 10

122 DEP
ARTMENT OF HOMELAND SECURITY v.
THURAISSIGIAM
Opinion of the Court
Respondent and his amici note that habeas petitioners
were
sometimes released on the condition that they conform
to certain requirements. See Brief for Respondent 30;
Legal Historians Brief 18. For example, they cite a case in
which a man was released on condition that he treat his wife
well and support her, and another in which a man was re-
leased on condition that he issue an apology. Ibid. But
what respondent sought in this case is nothing like that.
Respondent does not seek an order releasing him on the con-
dition that he do or refrain from doing something. What he
wants—further review of his asylum claim—is not a condi-
tion with which he must comply. Equally irrelevant is the
practice, discussed in the dissent, of allowing the executive
to justify or cure a defect in detention before requiring re-
lease. See post, at 173–175. Respondent does not seek this
sort of conditional release either, because the legality of his
detention is not in question.
Respondent contends that two cases show that habeas
could be used to secure the right of a non-citizen to remain
in a foreign country, but neither proves his point. His frst
case, involving a Scot named Murray, is one for which no
offcial report is available for us to review.
17
We could
hardly base our decision here on such a decision.
18
(Legal Historians Brief ) (internal quotation marks omitted). They argue
that “[h]abeas corpus was readily available to test the legality of their
actions.” Ibid. But according to their source, the challenged actions
were “imprisonment orders,” including imprisonment of clergymen who
refused to conform. Halliday 163–164.
17
Respondent cites a secondary source, which in turn cites to the Na-
tional Archives in London. See Brief for Respondent 27 (citing Halliday
236).
18
Whether the founding generation understood habeas relief more
broadly than described by Blackstone, Justice Story, and our prior cases,
see supra, at 117, cannot be settled by a single case or even a few obscure
and possibly aberrant cases. And in any event, what is said here about
Murray's case provides little support for respondent's position. In 1677,
we are told, Murray was imprisoned in England so that he could be “ `sent
into Scotland' ” for a criminal trial, but the King 's Bench twice issued a

Cite
as: 591 U. S. 103 (2020)
123
Opinion of the Court
His second case, Somerset v. Stewart, Lofft. 1, 98 Eng.
Rep
. 499 (K. B. 1772), is celebrated but does not aid respond-
ent. James Somerset was a slave who was “detain[ed]” on
a ship bound for Jamaica, and Lord Mansfeld famously or-
dered his release on the ground that his detention as a slave
was unlawful in England. Id., at 19, 98 Eng. Rep., at 510.
This relief, release from custody, fell within the historic core
of habeas, and Lord Mansfeld did not order anything else.
It may well be that a collateral consequence of Somerset's
release was that he was allowed to remain in England, but
if that is so, it was due not to the writ issued by Lord Mans-
feld, but to English law regarding entitlement to reside in
the country. At the time, England had nothing like modern
immigration restrictions. As late as 1816, the word “depor-
tation” apparently “was not to be found in any English dic-
tionary.” The Use of the Crown's Power of Deportation
Under the Aliens Act, 1793–1826, in J. Dinwiddy, Radicalism
and Reform in Britain, 1780–1850, p. 150, n. 4 (1992); see also,
e. g., Craies, The Right of Aliens To Enter British Territory,
6 L. Q. Rev. 27, 35 (1890) (“England was a complete asylum
to the foreigner who did not offend against its laws”); Hay-
craft, Alien Legislation and the Prerogative of the Crown,
13 L. Q. Rev. 165, 180 (1897) (“There do not appear to have
been any transactions in Parliament or in the [Crown's]
Privy Council directly affecting [deportation] from the time
of Elizabeth [I] to that of George III”).
19
writ of habeas corpus requiring his release. Brief for Respondent 27
(quoting Halliday 236). Putting aside the “delicate” relationship between
England and Scotland at the time, Boumediene, 553 U. S., at 749, issuance
of a writ to secure the release of a person held in pretrial custody is far
afeld from what respondent wants here.
19
This regime lasted until after 1789, when the Aliens Act of 1793 au-
thorized justices of the peace to imprison “without bail or mainprize” (i. e.,
bond) any alien found without a passport, who could then be “sen[t] out of
th[e] realm.” An Act for Regulating Immigration into Great Britain, 33
Geo. III, ch. 4, §§ 11, 29.

124 DEP
ARTMENT OF HOMELAND SECURITY v.
THURAISSIGIAM
Opinion of the Court
For a similar reason, respondent cannot fnd support in
ear
ly 19th-century American cases in which deserting for-
eign sailors used habeas to obtain their release from the cus-
tody of American offcials. In none of the cases involving
deserters that have been called to our attention did the court
order anything more than simple release from custody. As
noted, Justice Story ordered a sailor's release into the cus-
tody of his ship's master. See Ex parte D'Olivera, 7 F. Cas.,
at 854. Other decisions, while ordering the release of de-
tained foreign deserters because no statute authorized de-
tention, chafed at having to order even release. See Case of
the Deserters from the British Frigate L'Africaine, 3 Am.
L. J. & Misc. Repertory 132, 135–136 (Md. 1810) (reporting
judge's statement “that he never would interfere to prevent”
the British consul himself from detaining British deserters);
Case of Hippolyte Dumas, 2 Am. L. J. & Misc. Repertory 86,
87 (Pa. 1809) (noting “inconvenience” that U. S. law did not
discourage desertion of foreign sailors); Commonwealth v.
Holloway, 1 Serg. & Rawle 392, 396 (Pa. 1815) (opinion of
Tilghman, C. J.) (same); id., at 397 (opinion of Yeates, J.)
(same). These cases thus do not contemplate the quite dif-
ferent relief that respondent asks us to sanction here.
In these cases, as in Somerset, it may be that the released
petitioners were able to remain in the United States as a
collateral consequence of release, but if so, that was due not
to the writs ordering their release, but to U. S. immigration
law or the lack thereof. These decisions came at a time
when an “open door to the immigrant was the . . . federal
policy.” Harisiades v. Shaughnessy, 342 U. S. 580, 588, n. 15
(1952); see also St. Cyr, 533 U. S., at 305 (frst immigration
regulation enacted in 1875). So release may have had the
side effect of enabling these individuals to remain in this
country, but that is beside the point.
The relief that a habeas court may order and the collateral
consequences of that relief are two entirely different things.
Ordering an individual's release from custody may have the
side effect of enabling that person to pursue all sorts of op-

Cite
as: 591 U. S. 103 (2020)
125
Opinion of the Court
portunities that the law allows. For example, release may
enable
a qualifed surgeon to operate on a patient; a licensed
architect may have the opportunity to design a bridge; and
a qualifed pilot may be able to fy a passenger jet. But a
writ of habeas could not be used to compel an applicant to
be afforded those opportunities or as a means to obtain a
license as a surgeon, architect, or pilot. Similarly, while the
release of an alien may give the alien the opportunity to
remain in the country if the immigration laws permit, we
have no evidence that the writ as it was known in 1789 could
be used to require that aliens be permitted to remain in a
country other than their own, or as a means to seek that
permission.
Respondent's fnal examples involve international extradi-
tion, but these cases are no more pertinent than those al-
ready discussed. For one thing, they post-date the founding
era. England was not a party to any extradition treaty in
1789, and this country's frst extradition treaty was the Jay
Treaty of 1794. See 1 J. Moore, Extradition and Interstate
Rendition §§ 7, 78, pp. 10, 89 (1891). In any event, extradi-
tion cases, similar to the deserter cases, illustrate nothing
more than the use of habeas to secure release from custody
when not in compliance with the extradition statute and rele-
vant treaties. As noted by a scholar on whose work re-
spondent relies, these cases “examine[d] the lawfulness of
magistrates' decisions permitting the executive to detain
aliens.” Neuman, Habeas Corpus, Executive Detention, and
the Removal of Aliens, 98 Colum. L. Rev. 961, 1003 (1998).
In these cases, as in all the others noted above, habeas was
used “simply” to seek release from allegedly unlawful deten-
tion. Benson v. McMahon, 127 U. S. 457, 463 (1888). See
also, e. g., In re Stupp, 23 F. Cas. 296, 303 (No. 13,563) (CC
SDNY 1875).
20
20
Amici supporting respondent make an additional argument. They
contend that “[i]n eighteenth century practice, the authority of English
judges to review habeas petitions was not constrained by past decisions”
and that these judges felt free to innovate in order to ensure that justice

126 DEP
ARTMENT OF HOMELAND SECURITY v.
THURAISSIGIAM
Opinion of the Court
Despite pages of rhetoric, the dissent is unable to cite a
si
ngle pre-1789 habeas case in which a court ordered relief
that was anything like what respondent seeks here. The
dissent instead contends that “the Suspension Clause inquiry
does not require a close (much less precise) factual match
with historical habeas precedent,” post, at 168, and then dis-
cusses cases that are not even close to this one. The dissent
reveals the true nature of its argument by suggesting that
there are “inherent diffculties [in] a strict originalist ap-
proach in the habeas context because of, among other things,
the dearth of reasoned habeas decisions at the founding.”
Post, at 167. But respondent does not ask us to hold that
the Suspension Clause guarantees the writ as it might have
evolved since the adoption of the Constitution. On the con-
trary, as noted at the outset of this discussion, he rests his
argument on “the writ as it existed in 1789.” Brief for Re-
spondent 26, n. 12.
What the dissent merely implies, one concurring opinion
states expressly, arguing that the scope of the writ guaran-
teed by the Suspension Clause “may change `depending upon
the circumstances' ” and thus may allow certain aliens to
seek relief other than release. Post, at 152 (Breyer, J., con-
was done. Legal Historians Brief 5–6. But the role of federal courts
under our Constitution is very different from that of those English judges.
The English judges “were considered agents of the Crown, designed to
assist the King in the exercise of his power.” Boumediene, 553 U. S., at
740. The court with primary habeas jurisdiction, after all, was called the
King 's Bench, on which the King “was theoretically always present.”
Halliday & White, The Suspension Clause: English Text, Imperial Con-
texts, and American Implications, 94 Va. L. Rev. 575, 594, 598, and n. 49
(2008). Habeas was an exercise of the King 's prerogative “to have an
account . . . why the liberty of any of his subjects is restrained.” 3 J.
Story, Commentaries on the Constitution of the United States § 1335,
p. 207 (1833); accord, Legal Historians Brief 5–7. In our federal courts,
by contrast, the scope of habeas has been tightly regulated by statute,
from the Judiciary Act of 1789 to the present day, and precedent is as
binding in a habeas case as in any other. See, e. g., Jenkins v. Hutton,
582 U. S. 280, 284 (2017) (per curiam).

Cite
as: 591 U. S. 103 (2020)
127
Opinion of the Court
curring in judgment) (quoting Boumediene, 553 U. S., at 779).
But
that is not respondent's argument, and as a general rule
“we rely on the parties to frame the issues for decision and
assign to courts the role of neutral arbiter of matters the
parties present. ” Uni ted States v. Sineneng-Smi th, 590
U. S. 371, 375 (2020) (internal quotation marks omitted). In
any event, the concurrence's snippets of quotations from
Boumediene are taken entirely out of context. They relate
to the question whether the statutory review procedures for
Guantanamo detainees seeking release from custody pro-
vided an adequate substitute for a habeas petition seeking
release. See infra, at 136–138. They do not suggest that
any habeas writ guaranteed by the Suspension Clause per-
mits a petitioner to obtain relief that goes far beyond the
“core” of habeas as “a remedy for unlawful executive deten-
tion.” Munaf, 553 U. S., at 693.
21
21
This concurrence imagines three horrible possibilities that it fears
could come to pass unless we interpret the Suspension Clause to protect
the right to some undefned category of relief beyond release from custody.
See post, at 151 (opinion of Breyer, J.). But its interpretation is neither
necessary nor obviously suffcient to prevent the possibilities it fears.
First, if a citizen were detained for deportation, today's opinion would not
prevent the citizen from petitioning for release. Second, if respondent's
“procedural” claims do not merit habeas review, as the concurrence con-
cludes, post, at 156–157, it is not clear why habeas should help the concur-
rence's hypothetical alien whose credible-fear claim was rejected based on
forged evidence. Both respondent and this hypothetical alien assert proce-
dural irregularities. Does the availability of habeas review depend on a
judge's view of the severity of the irregularity asserted? Finally, there
is the hypothetical alien denied asylum on the ground that Judaism is not
a religion. Such a decision would of course be ridiculous, but why it would
not raise a question of “brute fac[t]” that falls outside the concurrence's
interpretation of the Suspension Clause, post, at 154, is again not clear.
Whatever may be said about the concurrence's hypotheticals, it is possi-
ble to imagine all sorts of abuses not even remotely related to unauthor-
ized executive detention that could be imposed on people in this country
if the Constitution allowed Congress to deprive the courts of any jurisdic-
tion to entertain claims regarding such abuses. If that were to happen,
it would no doubt be argued that constitutional provisions other than the

128 DEP
ARTMENT OF HOMELAND SECURITY v.
THURAISSIGIAM
Opinion of the Court
B
W
e now proceed to consider the second body of case law
on which respondent relies, decisions of this Court during
the “fnality era,” which takes its name from a feature of the
Immigration Act of 1891 making certain immigration deci-
sions “fnal.” Although respondent claims that his argu-
ment is supported by “the writ as it existed in 1789,” Brief
for Respondent 26, n. 12, his argument focuses mainly on this
body of case law, which began a century later. These cases,
he claims, held that “the Suspension Clause mandates a mini-
mum level of judicial review to ensure that the Executive
complies with the law in effectuating removal.” Id., at 11–
12. The Ninth Circuit also relied heavily on these cases and
interpreted them to “suggest that the Suspension Clause re-
quires review of legal and mixed questions of law and fact
related to removal orders.” 917 F. 3d, at 1117.
This interpretation of the “fnality era” cases is badly mis-
taken. Those decisions were based not on the Suspension
Clause but on the habeas statute and the immigration laws
then in force. The habeas statute in effect during this time
was broad in scope. It authorized the federal courts to re-
view whether a person was being held in custody in violation
of any federal law, including immigration laws. Thus, when
aliens claimed that they were detained in violation of immi-
gration statutes, the federal courts considered whether im-
migration authorities had complied with those laws. This,
of course, required that the immigration laws be interpreted,
and at the start of the fnality era, this Court interpreted
the 1891 Act's fnality provision to block review of only ques-
tions of fact. Accordingly, when writs of habeas corpus
were sought by aliens who were detained on the ground that
they were not entitled to enter this country, the Court con-
sidered whether, given the facts found by the immigration
Suspension Clause guaranteed judicial review. We have no occasion to
consider such arguments here.

Cite
as: 591 U. S. 103 (2020)
129
Opinion of the Court
authorities, the detention was consistent with applicable
federa
l law. But the Court exercised that review because
it was authorized to do so by statute. The decisions did
not hold that this review was required by the Suspension
Clause.
In this country, the habeas authority of federal courts has
been addressed by statute from the very beginning. The
Judiciary Act of 1789, § 14, 1 Stat. 82, gave the federal courts
the power to issue writs of habeas corpus under specifed
circumstances, but after the Civil War, Congress enacted a
much broader statute. That law, the Habeas Corpus Act of
1867, provided that “the several courts of the United States
. . . shall have power to grant writs of habeas corpus in all
cases where any person may be restrained of his or her lib-
erty in violation of the constitution, or of any treaty or law
of the United States.” Judiciary Act of Feb. 5, 1867, ch. 28,
§ 1, 14 Stat. 385. The Act was “of the most comprehensive
character,” bringing “within the habeas corpus jurisdiction
of every court and of every judge every possible case of pri-
vation of liberty contrary” to federal law. Ex parte McCar-
dle, 6 Wall. 318, 325–326 (1868). This jurisdiction was “im-
possible to widen.” Id., at 326; see Fay v. Noia, 372 U. S.
391, 415 (1963) (noting the Act's “expansive language” and
“imperative tone”). The 1867 statute, unlike the current
federal habeas statute, was not subject to restrictions on the
issuance of writs in immigration matters, and in United
States v. Jung Ah Lung, 124 U. S. 621 (1888), the Court held
that an alien in immigration custody could seek a writ under
that statute. Id., at 626. This provided the statutory basis
for the writs sought in the fnality era cases.
The Immigration Act of 1891, enacted during one of the
country's great waves of immigration, required the exclusion
of certain categories of aliens and established procedures for
determining whether aliens fell within one of those catego-
ries. The Act required the exclusion of “idiots, insane per-
sons, paupers or persons likely to become a public charge,”

130 DEP
ARTMENT OF HOMELAND SECURITY v.
THURAISSIGIAM
Opinion of the Court
persons with infectious diseases, persons with convictions for
cer
tain crimes, some individuals whose passage had been
paid for by a third party, and certain laborers. Act of Mar.
3, 1891, ch. 551, § 1, 26 Stat. 1084. Inspection offcers were
authorized to board arriving vessels and inspect any aliens
on board. § 8, id., at 1085. And, in the provision of central
importance here, the Act provided that “[a]ll decisions made
by the inspection offcers or their assistants touching the
right of any alien to land, when adverse to such right, shall
be fnal unless appeal be taken to the superintendent of im-
migration, whose action shall be subject to review by the
Secretary of the Treasury.” Ibid. Later immigration Acts,
which remained in effect until 1952,
22
contained similar pro-
visions. See Act of 1894, 28 Stat. 390; Immigration Act of
1907, § 25, 34 Stat. 907; Immigration Act of 1917, § 17, 39
Stat. 887.
The frst of the fnality era cases, Nishimura Ekiu v.
United States, 142 U. S. 651 (1892), required the Court to
address the effect of the 1891 Act's fnality provision in a
habeas case. Nishimura Ekiu is the cornerstone of re-
spondent's argument regarding the fnality era cases, so the
opinion in that case demands close attention.
The case involved an alien who was detained upon arrival
based on the immigration inspector's fnding that she was
liable to become a public charge. Seeking to be released,
the alien applied to the Circuit Court for a writ of habeas
corpus and argued that the 1891 Act, if construed to give
immigration authorities the “exclusive authority to deter-
mine” her right to enter, would violate her constitutional
right to the writ of habeas corpus and her right to due proc-
ess. Id., at 656 (statement of the case). The Circuit Court
refused to issue the writ, holding that the determination of
22
See Shaughnessy v. Pedreiro, 349 U. S. 48, 51–52 (1955) (interpreting
1952 Immigration and Nationality Act, 66 Stat. 163, to provide for review
of deportation orders).

Cite
as: 591 U. S. 103 (2020)
131
Opinion of the Court
the inspector of immigration was not subject to review, and
the
alien then appealed.
This Court upheld the denial of the writ. The Court in-
terpreted the 1891 Act to preclude judicial review only with
respect to questions of fact. Id., at 660. And after inter-
preting the 1891 Act in this way, the Court found that “the
act of 1891 is constitutional.” Id., at 664.
The Court's narrow interpretation of the 1891 Act's fnality
provision meant that the federal courts otherwise retained
the full authority granted by the Habeas Corpus Act of 1867
to determine whether an alien was detained in violation of
federal law. Turning to that question, the Court held that
the only procedural rights of an alien seeking to enter the
country are those conferred by statute. “As to such per-
sons,” the Court explained, “the decisions of executive or
administrative offcers, acting within powers expressly con-
ferred by Congress, are due process of law.” Id., at 660.
The Court therefore considered whether the procedures set
out in the 1891 Act had been followed, and fnding no viola-
tion, affrmed the denial of the writ. Id., at 661–664. What
is critical for present purposes is that the Court did not hold
that the Suspension Clause imposed any limitations on the
authority of Congress to restrict the issuance of writs of ha-
beas corpus in immigration matters.
Respondent interprets Nishimura Ekiu differently. See
Brief for Respondent 13–15. As he reads the decision, the
Court interpreted the 1891 Act to preclude review of all
questions related to an alien's entitlement to enter the coun-
try. Any other interpretation, he contends, would fy in the
face of the statutory terms. But, he maintains, the Court
held that this limitation violated the Suspension Clause ex-
cept with respect to questions of fact, and it was for this
reason that the Court considered whether the procedures
specifed by the 1891 Act were followed. In other words, he
reads Nishimura Ekiu as holding that the 1891 Act's fnality

132 DEP
ARTMENT OF HOMELAND SECURITY v.
THURAISSIGIAM
Opinion of the Court
provision was unconstitutional in most of its applications
(
i. e., to all questions other than questions of fact).
This interpretation is wrong. The opinion in Nishimura
Ekiu states unequivocally that “the act of 1891 is constitu-
tional,” 142 U. S., at 664, not that it is constitutional only in
part. And if there is any ambiguity in the opinion regarding
the Court's interpretation of the fnality provision, the later
decision in Gegiow v. Uhl, 239 U. S. 3 (1915), left no doubt.
What Nishimura Ekiu meant, Gegiow explained, was that
the immigration authorities' factual fndings were conclusive
(as Gegiow put it, “[t]he conclusiveness of the decisions of
immigration offcers . . . is conclusiveness upon matters of
fact”) and therefore, the Court was “not forbidden by the
statute to consider” in a habeas proceeding “whether the
reasons” for removing an alien “agree with the requirements
of the act.” 239 U. S., at 9. In light of this interpretation,
the Nishimura Ekiu Court had no occasion to decide
whether the Suspension Clause would have tolerated a
broader limitation, and there is not so much as a hint in the
opinion that the Court considered this question. Indeed,
the opinion never even mentions the Suspension Clause, and
it is utterly implausible that the Court would hold sub si-
lentio that Congress had violated that provision.
Holding that an Act of Congress unconstitutionally sus-
pends the writ of habeas corpus is momentous. See Boume-
diene, 553 U. S., at 773 (noting “the care Congress has taken
throughout our Nation's history” to avoid suspension). The
Justices on the Court at the beginning of the fnality era
had seen historic occasions when the writ was suspended—
during the Civil War by President Lincoln and then by Con-
gress, and later during Reconstruction by President Grant.
See Hamdi v. Rumsfeld, 542 U. S. 507, 563 (2004) (Scalia,
J., dissenting) (discussing these events). The suspension of
habeas during this era played a prominent role in our consti-
tutional history. See Ex parte Merryman, 17 F. Cas. 144,
151–152 (No. 9,487) (CC Md. 1861) (Taney, C. J.); Ex parte

Cite
as: 591 U. S. 103 (2020)
133
Opinion of the Court
Milligan, 4 Wall. 2, 116, 131 (1866). (Two of the Justices at
the
beginning of the fnality era were on the Court when
Ex parte Milligan was decided.) The Justices knew a sus-
pension of the writ when they saw one, and it is impossible
to believe that the Nishimura Ekiu Court identifed another
occasion when Congress had suspended the writ and based
its decision on the Suspension Clause without even mention-
ing that provision.
The dissent's interpretation of Nishimura Ekiu is differ-
ent from respondent's. According to the dissent, Nishimura
Ekiu interpreted the 1891 Act as it did based on the doctrine
of constitutional avoidance. See post, at 179–180. This
reading has no support in the Court's opinion, which never
mentions the Suspension Clause or the avoidance doctrine
and never explains why the Clause would allow Congress to
preclude review of factual fndings but nothing more. But
even if there were some basis for this interpretation, it
would not beneft respondent, and that is undoubtedly why
he has not made the argument. IIRIRA unequivocally bars
habeas review of respondent's claims, see § 1252(e)(2), and he
does not argue that it can be read any other way. The
avoidance doctrine “has no application in the absence of am-
biguity.” Warger v. Shauers, 574 U. S. 40, 50 (2014) (inter-
nal quotation marks and ellipsis omitted). Thus, if Nishi-
mura Ekiu's interpretation were based on constitutional
avoidance, it would still not answer the interpretive ques-
tion here.
When we look to later fnality era cases, any suggestion of
a Suspension Clause foundation becomes even less plausible.
None of those decisions mention the Suspension Clause or
even hint that they are based on that provision, and these
omissions are telling. On notable occasions during that
time, the writ was suspended—in the Philippines in 1906
23
23
While the Philippines was a Territory, its government suspended ha-
beas to deal with “ `certain organized bands' ” of rebels. Fisher v. Baker,
203 U. S. 174, 179–181 (1906) (quoting resolution).

134 DEP
ARTMENT OF HOMELAND SECURITY v.
THURAISSIGIAM
Opinion of the Court
and Hawaii in 1941.
24
Dur
ing World War II, the Court held
that “enemy aliens” could utilize habeas “unless there was
suspension of the writ.” In re Yamashita, 327 U. S. 1, 9
(1946). And the Court invoked the Suspension Clause in
holding that the Executive lacked authority to intern a
Japanese-American citizen. See Ex parte Endo, 323 U. S.
283, 297–299 (1944). If the Justices during that time had
thought that the Suspension Clause provided the authority
they were exercising in the many cases involving habeas pe-
titions by aliens detained prior to entry, it is hard to believe
that this important fact would have escaped mention.
Respondent suggests that Nishimura Ekiu cannot have
interpreted the 1891 Act's fnality provision to apply only to
factual questions because the statutory text categorically
bars all review. The important question here, however, is
what the Court did in Nishimura Ekiu, not whether its
interpretation was correct, and in any event, there was a
reasonable basis for the Court's interpretation.
The determinations that the immigration offcials were re-
quired to make under the 1891 Act were overwhelmingly fac-
tual in nature. The determination in Nishimura's case—
that she was likely to become a public charge—seems to have
been a pure question of fact, and the other grounds for exclu-
sion under the Act involved questions that were either solely
or at least primarily factual in nature.
If we were now called upon to determine the meaning of
a provision like the fnality provision in the 1891 Act, our
precedents would provide the basis for an argument in favor
of the i nter pret ati on that the N ish imura Ek iu Cour t
reached. The presumption in favor of judicial review, see,
e. g., Guerrero-Lasprilla v. Barr, 589 U. S. 221, 229 (2020);
Nasrallah v. Barr, 590 U. S. 573, 581–583 (2020), could be
invoked. So could the rule that “[i]mplications from statu-
24
The Governor of Hawaii suspended habeas, with President Roosevelt's
approval, after the attack on Pearl Harbor. See Duncan v. Kahanamoku,
327 U. S. 304, 307–308, 324 (1946).

Cite
as: 591 U. S. 103 (2020)
135
Opinion of the Court
tory text or legislative history are not suffcient to repeal
habeas
jurisdiction.” St. Cyr, 533 U. S., at 299; accord,
Ex parte Yerger, 8 Wall. 85, 105 (1869). Thus, respondent's
interpretation of the decision in Nishimura Ekiu is wrong,
and the same is true of his understanding of the later fnality
era cases.
Rather than relying on the Suspension Clause, those cases
simply involved the exercise of the authority conferred by
the habeas statute then in effect. This was true of Nishi-
mura Ekiu, Gegiow, and every other fnality era case that
respondent cites in support of his Suspension Clause argu-
ment. See, e. g., Gonzales v. Williams, 192 U. S. 1 (1904);
Yee Won v. White, 256 U. S. 399 (1921); Tod v. Waldman, 266
U. S. 113 (1924); United States ex rel. Polymeris v. Trudell,
284 U. S. 279 (1932); United States ex rel. Johnson v. Shaugh-
nessy, 336 U. S. 806 (1949); United States ex rel. Knauff v.
Shaughnessy, 338 U. S. 537 (1950); Shaughnessy v. United
States ex rel. Mezei, 345 U. S. 206 (1953); United States
ex rel. Accardi v. Shaughnessy, 347 U. S. 260 (1954). Some
fnality era cases presented pure questions of law, while oth-
ers involved the application of a legal test to particular facts.
At least one involved an alien who had entered illegally.
See id., at 262. But none was based on the Suspension
Clause. No majority opinion even mentioned the Suspen-
sion Clause.
25
Indeed, any mention of the Constitution was
rare—and unhelpful to respondent's arguments here.
26
And
in all the cited cases concerning aliens detained at entry, un-
like the case now before us, what was sought—and the only
25
In a concurrence in United States ex rel. Turner v. Williams, 194 U. S.
279 (1904), Justice Brewer stated without elaboration and without citing
any authority that the Suspension Clause prohibits Congress from “oust-
[ing] the courts from the duty of inquiry respecting both law and facts” in
habeas cases. Id., at 295. No other Justice joined that opinion.
26
In Fong Yue Ting v. United States, 149 U. S. 698, 713 (1893), and many
other cases, the Court noted that the Constitution gives Congress plenary
power to set requirements for admission.

136 DEP
ARTMENT OF HOMELAND SECURITY v.
THURAISSIGIAM
Opinion of the Court
relief considered—was release. Indeed, in an early fnality
era
case, the Court took pains to note that it did not “express
any opinion” on whether an alien was entitled to enter. Lem
Moon Sing v. United States, 158 U. S. 538, 549 (1895).
Like the dissent, respondent makes much of certain state-
ments in Heikkila v. Barber, 345 U. S. 229 (1953), which he
interprets to substantiate his interpretation of Nishimura
Ekiu and the subsequent entry cases discussed above. But
he takes these statements out of context and reads far too
much into them. Heikkila was not a habeas case, and the
question before the Court was whether a deportation order
was reviewable under the Administrative Procedure Act
(APA). The Court held that the order was not subject to
APA review because the Immigration Act of 1917 foreclosed
“judicial review”—as opposed to review in habeas. 345
U. S., at 234–235. Nothing in Heikkila suggested that the
1891 Act had been found to be partly unconstitutional, and
Heikkila certainly did not address the scope of the writ of
habeas corpus in 1789.
In sum, the Court exercised habeas jurisdiction in the f-
nality era cases because the habeas statute conferred that
authority, not because it was required by the Suspension
Clause. As a result, these cases cannot support respond-
ent's argument that the writ of habeas corpus as it was un-
derstood when the Constitution was adopted would have al-
lowed him to claim the right to administrative and judicial
review while still in custody.
C
We come, fnally, to the more recent cases on which re-
spondent relies. The most recent, Boumediene, is not about
immigration at all. It held that suspected foreign terrorists
could challenge their detention at the naval base in Guantan-
amo Bay, Cuba. They had been “apprehended on the battle-
feld in Afghanistan” and elsewhere, not while crossing the
border. 553 U. S., at 734. They sought only to be released

Cite
as: 591 U. S. 103 (2020)
137
Opinion of the Court
from Guantanamo, not to enter this country. See, e. g., Brief
for
Petitioner Al Odah et al. in Al Odah v. United States,
decided with Boumediene v. Bush, O. T. 2007, No. 06–1196,
p. 39 (arguing that “habeas contemplates but one remedy,”
“release”). And nothing in the Court's discussion of the
Suspension Clause suggested that they could have used
habeas as a means of gaining entry. Rather, the Court
reaffrmed that release is the habeas remedy though not
the “exclusive” result of every writ, given that it is often
“appropriate” to allow the executive to cure defects in a de-
tention. 553 U. S., at 779.
Respondent's other recent case is St. Cyr, in which the
Court's pertinent holding rejected the argument that certain
provisions of IIRIRA and the Antiterrorism and Effective
Death Penalty Act of 1996 that did not refer expressly to
habeas should nevertheless be interpreted as stripping the
authority conferred by the habeas statute. In refusing to
adopt that interpretation, the Court enlisted a quartet of in-
terpretive canons: “the strong presumption in favor of judi-
cial review of administrative action,” “the longstanding rule
requiring a clear statement of congressional intent to repeal
habeas jurisdiction,” the rule that a “clear indication” of con-
gressional intent is expected when a proposed interpretation
would push “the outer limits of Congress' power,” and the
canon of constitutional avoidance. 533 U. S., at 298–300. In
connection with this fnal canon, the Court observed: “Be-
cause of [the Suspension] Clause, some `judicial intervention
in deportation cases' is unquestionably `required by the Con-
stitution.' ” Id., at 300 (quoting Heikkila, 345 U. S., at 235).
Respondent pounces on this statement, but like the Heik-
kila statement on which it relies, it does nothing for him.
The writ of habeas corpus as it existed at common law pro-
vided a vehicle to challenge all manner of detention by gov-
ernment offcials, and the Court had held long before that
the writ could be invoked by aliens already in the country
who were held in custody pending deportation. St. Cyr re-

138 DEP
ARTMENT OF HOMELAND SECURITY v.
THURAISSIGIAM
Opinion of the Court
affrmed these propositions, and this statement in St. Cyr
does
not signify approval of respondent's very different at-
tempted use of the writ, which the Court did not consider.
27
IV
In addition to his Suspension Clause argument, respondent
contends that IIRIRA violates his right to due process by
precluding judicial review of his allegedly fawed credible-
fear proceeding. Brief for Respondent 38–45. The Ninth
Circuit agreed, holding that respondent “had a constitutional
right to expedited removal proceedings that conformed to
the dictates of due process.” 917 F. 3d, at 1111, n. 15 (inter-
nal quotation marks omitted). And the Ninth Circuit ac-
knowledged, ibid., that this holding conficted with the Third
Circuit's decision upholding § 1252(e)(2) on the ground that
applicants for admission lack due process rights regarding
their applications, see Castro, 835 F. 3d, at 445–446. Since
due process provided an independent ground for the decision
below and since respondent urges us to affrm on this ground,
it is hard to understand the dissent's argument that the due
process issue was not “seriously in dispute below” or that it
is somehow improper for us to decide the issue. Post, at 190.
Nor is the dissent correct in defending the Ninth Circuit's
holding. That holding is contrary to more than a century of
precedent. In 1892, the Court wrote that as to “foreigners
who have never been naturalized, nor acquired any domicil
or residence within the United States, nor even been ad-
mitted into the country pursuant to law,” “the decisions of
executive or administrative offcers, acting within powers ex-
pressly conferred by Congress, are due process of law.”
Nishimura Ekiu, 142 U. S., at 660. Since then, the Court
has often reiterated this important rule. See, e. g., Knauff,
27
The Government notes other distinctions between St. Cyr and this
case, including that the alien in St. Cyr raised a pure question of law, while
respondent raises at best a mixed question of law and fact. We have no
need to consider these distinctions.

Cite
as: 591 U. S. 103 (2020)
139
Opinion of the Court
338 U. S., at 544 (“Whatever the procedure authorized by
Congress
is, it is due process as far as an alien denied entry
is concerned”); Mezei, 345 U. S., at 212 (same); Landon v.
Plasencia, 459 U. S. 21, 32 (1982) (“This Court has long held
that an alien seeking initial admission to the United States
requests a privilege and has no constitutional rights regard-
ing his application, for the power to admit or exclude aliens
is a sovereign prerogative”).
Respondent argues that this rule does not apply to him
because he was not taken into custody the instant he at-
tempted to enter the country (as would have been the case
had he arrived at a lawful port of entry). Because he suc-
ceeded in making it 25 yards into U. S. territory before he
was caught, he claims the right to be treated more favorably.
The Ninth Circuit agreed with this argument.
We reject it. It disregards the reason for our century-old
rule regarding the due process rights of an alien seeking
initial entry. That rule rests on fundamental propositions:
“[T]he power to admit or exclude aliens is a sovereign pre-
rogative,” id., at 32; the Constitution gives “the political de-
partment of the government” plenary authority to decide
which aliens to admit, Nishimura Ekiu, 142 U. S., at 659;
and a concomitant of that power is the power to set the pro-
cedures to be followed in determining whether an alien
should be admitted, see Knauff, 338 U. S., at 544.
This rule would be meaningless if it became inoperative as
soon as an arriving alien set foot on U. S. soil. When an
alien arrives at a port of entry—for example, an interna-
tional airport—the alien is on U. S. soil, but the alien is not
considered to have entered the country for the purposes of
this rule. On the contrary, aliens who arrive at ports of
entry—even those paroled elsewhere in the country for
years pending removal—are “treated” for due process pur-
poses “as if stopped at the border.” Mezei, 345 U. S., at 215;
see Leng May Ma v. Barber, 357 U. S. 185, 188–190 (1958);
Kaplan v. Tod, 267 U. S. 228, 230–231 (1925).

140 DEP
ARTMENT OF HOMELAND SECURITY v.
THURAISSIGIAM
Opinion of the Court
The same must be true of an alien like respondent. As
pre
viously noted, an alien who tries to enter the country ille-
gally is treated as an “applicant for admission,” § 1225(a)(1),
and an alien who is detained shortly after unlawful entry
cannot be said to have “effected an entry,” Zadvydas v.
Davis, 533 U. S. 678, 693 (2001). Like an alien detained
after arriving at a port of entry, an alien like respondent
is “on the threshold.” Mezei, 345 U. S., at 212. The rule
advocated by respondent and adopted by the Ninth Circuit
would undermine the “sovereign prerogative” of governing
admission to this country and create a perverse incentive to
enter at an unlawful rather than a lawful location. Plasen-
cia, 459 U. S., at 32.
For these reasons, an alien in respondent's position has
only those rights regarding admission that Congress has pro-
vided by statute. In respondent's case, Congress provided
the right to a “determin[ation]” whether he had “a signifcant
possibility” of “establish[ing] eligibility for asylum,” and he
was given that right. §§ 1225(b)(1)(B)(ii), (v). Because the
Due Process Clause provides nothing more, it does not re-
quire review of that determination or how it was made. As
applied here, therefore, § 1252(e)(2) does not violate due
process.
28
***
Because the Ninth Circuit erred in holding that § 1252(e)(2)
violates the Suspension Clause and the Due Process Clause,
28
Although respondent, during his interviews with immigration offcials,
does not appear to have provided any information tying the assault he
suffered at the hands of those who arrived at his home in a van to persecu-
tion on the basis of ethnicity or political opinion, his counseled petition
offers details about “white va[n]” attacks against Tamils in Sri Lanka.
App. 25–26 (internal quotation marks omitted). As now portrayed, his
assault resembles those incidents. Department offcials and immigration
judges may reopen cases or reconsider decisions, see 8 CFR §§ 103.5(a)(1),
(5), and 1003.23(b)(1), and the Executive always has discretion not to re-
move, see AAADC, 525 U. S., at 483–484.

Cite
as: 591 U. S. 103 (2020)
141
Thomas, J., concurring
we reverse the judgment and remand the case with direc-
ti
ons that the application for habeas corpus be dismissed.
It is so ordered.
Justice Thomas, concurring.
I join the Court's opinion, which correctly concludes that
respondent's Suspension Clause argument fails because he
does not seek a writ of habeas corpus. I write separately
to address the original meaning of the Suspension Clause,
which guarantees that “[t]he Privilege of the Writ of Habeas
Corpus shall not be suspended, unless when in Cases of Re-
bellion or Invasion the public Safety may require it.” Art.
I, § 9, cl. 2. The Founders appear to have understood “[t]he
Privilege of the Writ of Habeas Corpus” to guarantee free-
dom from discretionary detention, and a “suspen[sion]” of
that privilege likely meant a statute granting the executive
the power to detain without bail or trial based on mere suspi-
cion of a crime or dangerousness. Thus, the expedited re-
moval procedure in the Illegal Immigration Reform and Im-
migrant Responsibility Act of 1996, 110 Stat. 3009–546, is
likely not a suspension.
1
I
The writ of habeas corpus began as a prerogative writ in
the Court of King 's Bench in the 16th century. J. Baker,
An Introduction to English Legal History 157 (5th ed. 2019).
Over time, however, it came to be understood both as a right
to be free from arbitrary detention and as a procedural writ.
By the end of the 16th century, the English connected the
common-law writ of habeas corpus to liberty. Specifcally,
it was associated with the guarantee in Magna Carta that
“[n]o free person (Nullus liber homo) shall be taken or im-
prisoned, or disseised or outlawed or exiled, or in any way
1
I express no view on the question whether respondent is even entitled
to the privilege of the writ as an unadmitted alien.

142 DEP
ARTMENT OF HOMELAND SECURITY v.
THURAISSIGIAM
Thomas, J., concurring
destroyed . . . except by the lawful judgment of his peers or
by
the law of the land.” Id., at 157, n. 76, 506. Perhaps
most prominently, Edward Coke wrote in his Institutes that
“if a man be taken, or committed to prison contra legem ter-
rae, against the Law of the land,” then “[h]e may have an
habeas corpus.” The Second Part of the Institutes of the
Laws of England 55 (6th ed. 1681). For Coke, and for the
many English (and later Americans) who read his work, “the
writ was treated as an aspect of the Charter's guaranty.”
D. Meador, Habeas Corpus and Magna Carta: Dualism of
Power and Liberty 22 (1966).
This association between habeas corpus and freedom from
discretionary detention deepened after 1679 with the Habeas
Corpus Act, also known as An Act for the better secureing
the Liberty of the Subject and for Prevention of Imprison-
ments beyond the Seas. The statute sought to address
“great Delayes” in “criminall or supposed criminall Matters.”
31 Car. 2, ch. 2. It required an offcer served with a writ of
habeas corpus to produce the prisoner within three days in
“any such criminall or supposed criminall Matters.” Ibid.
It also guaranteed bail to prisoners in cases of felony or high
treason if they were not tried within one term of court.
Ibid. To protect these rights, Parliament created a special
statutory remedy: All writs under the Habeas Corpus Act
were marked as issuing pursuant to the statute. Ibid.;
P. Halliday, Habeas Corpus: From England to Empire 320
(2010).
Parliament passed the Habeas Corpus Act to curb the
power of King Charles II, but it nonetheless came to be seen
as a protection for liberty, not just an assertion of the powers
of Parliament over the Crown. Henry Care, in the 1774 edi-
tion of his widely read treatise English Liberties, com-
mented that “before this statute [the common-law writ of
habeas corpus] was rendered far less useful than it ought to
be, partly by the Judges pretending a power to grant or deny
the said writ at their pleasure, in many cases; and especially
by the ill practices of Sheriffs and Goalers, by putting the

Cite
as: 591 U. S. 103 (2020)
143
Thomas, J., concurring
prisoner to the charge and trouble of . . . a second and third
wr
it, before they would obey the frst.” 1 English Liberties,
or the Free-born Subject's Inheritance 195. The Habeas
Corpus Act, he concluded, “provides thus for our liberty.”
Id., at 198. William Blackstone put it even more sweep-
ingly, writing that the Habeas Corpus Act “is frequently con-
sidered as another magna carta.” 3 Commentaries on the
Laws of England 135 (1770).
II
The Founders inherited this understanding of habeas cor-
pus. And they enshrined it in the Suspension Clause, which
they understood to protect a substantive right.
The language of the Suspension Clause evinces this under-
standing. The Clause itself does not authorize courts to
issue writs of habeas corpus. INS v. St. Cyr, 533 U. S. 289,
337 (2001) (Scalia, J., dissenting); Ex parte Bollman, 4
Cranch 75, 94 (1807). Nor does it refer simply to the writ
of habeas corpus. Rather, it protects the privilege of the
writ of habeas corpus. The word “privilege” was “used in-
terchangeably with the words `rights,' `liberties,' and `free-
doms,' and had been since the time of Blackstone.” Mc-
Donald v. Chicago, 561 U. S. 742, 813 (2010) (Thomas, J.,
concurring in part and concurring in judgment). By using
this term, the Framers appear to have had a substantive
right in mind.
Ratifcation debates refect this understanding as well.
Future Supreme Court Justice James Iredell said in the
North Carolina convention that, “[b]y the privileges of the
habeas corpus, no man can be confned without inquiry; and
if it should appear that he has been committed contrary to
law, he must be discharged.” 4 Debates in the Several State
Conventions 171 (J. Elliot ed. 1891). Signer of the Constitu-
tion James McHenry told the Maryland House of Delegates
that “[p]ublic safety may require a suspension of the Ha-
[beas] Corpus in cases of necessity: when those cases do not
exist, the virtuous Citizen will ever be protected in his oppo-

144 DEP
ARTMENT OF HOMELAND SECURITY v.
THURAISSIGIAM
Thomas, J., concurring
sition to power.” 11 Documentary History of the Ratifca-
ti
on of the Constitution 80, 84 (J. Kaminski et al. eds. 2015)
(Documentary History).
This understanding is echoed in statements that the Con-
stitution protects the Habeas Corpus Act, the writ of habeas
corpus, or simply “the habeas corpus,” all referring to a sub-
stantive right. Alexander Hamilton wrote in The Federalist
No. 83 that “the habeas corpus act” was “provided for in
the most ample manner in the plan of the convention.” The
Federalist No. 83, p. 499 (C. Rossiter ed. 1961). Again in
No. 84, he wrote that the Constitution “establish[ed] the writ
of habeas corpus.” Id., No. 84, at 511. In the Pennsylvania
ratifying convention, Jasper Yeates said that the Suspension
Clause “direct[ed] that the privilege of the habeas corpus act
shall not be suspended except in times of immediate danger.”
2 Documentary History 434–435 (M. Jensen ed. 1976). In
Virginia, Governor Edmund Randolph—a signer and future
Attorney General—argued that “the habeas corpus is at
least on as secure and good a footing as it is in England”
because “[t]hat privilege is secured here by the Constitu-
tion.” 9 id., at 1099 (J. Kaminski & G. Saladino eds. 1990).
Luther Martin of Maryland wrote that “the general govern-
ment is to have a power of suspending the habeas corpus
act, in cases of rebellion or invasion.” Genuine Information
VIII, reprinted in 15 id., at 434 (J. Kaminski & G. Saladino
eds. 1984). In Massachusetts, Theophilius Parsons “made a
Loud Speech on the Habeas Corpus act that it will not be in
the power of Gov[ern]ment to suspend the act only in time
of war.” 7 id., at 1813 (J. Kaminski & G. Saladino eds. 2001).
Other speakers and writers made similar references. See
A. Tyler, Habeas Corpus in Wartime 132–133 (2017) (collect-
ing examples). In sum, it seems that the founding genera-
tion viewed the privilege of the writ of habeas corpus as a
freedom from arbitrary detention.
2
2
None of this is to say that the writ of habeas corpus involved a wide-
ranging, ever-changing inquiry. As the Court today reaffrms, “the scope
of habeas has been tightly regulated by statute, from the Judiciary Act of

Cite
as: 591 U. S. 103 (2020)
145
Thomas, J., concurring
III
The
remaining question is what it means for “[t]he Privi-
lege of the Writ of Habeas Corpus” to “be suspended.” U. S.
Const., Art. I, § 9, cl. 2. At the founding, suspension was a
well-known term that meant “a [t]emporal [s]top of a [m]an's
[r]ight.” N. Bailey, An Universal Etymological English Dic-
tionary (22d ed. 1770); see St. Cyr, 533 U. S., at 337–338
(Scalia, J., dissenting). In the context of habeas corpus, it
appears to have specifcally meant a grant of authority to the
executive to detain without bail or trial based on suspicion
of a crime or dangerousness.
The English understood the term this way. Blackstone
called it “the happiness of [the English] constitution” that
“the parliament only, or legislative power, . . . can authorize
the crown, by suspending the habeas corpus act for a short
and limited time, to imprison suspected persons without giv-
ing any reason for so doing.” 1 Commentaries on the Laws
of England, at 136. Bills known as suspensions granted
broad power to detain based on suspicion of a crime. For
1789 to the present day.” Ante, at 126, n. 20. A writ of habeas corpus
was “in the nature of a writ of error, to examine the legality of the commit-
ment.” Ex parte Watkins, 3 Pet. 193, 202 (1830) (Marshall, C. J.). When
an executive detained someone without trial, it allowed a court to “exam-
ine into [the] validity” of “the reason for” commitment. 3 W. Blackstone,
Commentaries on the Laws of England 133 (1770). In cases of detention
pursuant to the judgment of a court, “a prisoner seeking a writ of habeas
corpus could challenge only the jurisdiction of the court that had rendered
the judgment under which he was in custody.” Wright v. West, 505 U. S.
277, 285 (1992) (opinion of Thomas, J.). In both contexts, the writ “played
only a procedural role: It issued as of right when a prisoner showed proba-
ble cause to believe he was being held illegally . . . and obligated the
warden to fle a `return' identifying the grounds of imprisonment.” Jen-
nings v. Stephens, 574 U. S. 271, 285 (2015) (Thomas, J., dissenting).
When the writ of habeas corpus was granted, it “decided nothing except
that there was a case calling for an answer by the gaoler.” Goddard, A
Note on Habeas Corpus, 65 L. Q. Rev. 30, 34 (1949). “After reviewing the
reason so returned, the court could release, bail, or remand the prisoner
as appropriate.” J. Baker, An Introduction to English Legal History 157
(5th ed. 2019).

146 DEP
ARTMENT OF HOMELAND SECURITY v.
THURAISSIGIAM
Thomas, J., concurring
example, in 1777, Lord Germaine introduced a bill “ `to em-
power
his Majesty to secure and detain Persons charged
with, or suspected of, the Crime of High Treason committed
in North America, or on the High Seas, or the Crime of Pi-
racy.' ” 19 W. Cobbett, The Parliamentary History of Eng-
land 4 (1814). The bill allowed certain prisoners to be de-
tained “ `without bail or mainprize' ”
3
and prohibited any
“ `judge or justice of peace' ” from “ `bail[ing] or try[ing] any
such person or persons, . . . any law, statute, or usage, to the
contrary in any wise notwithstanding.' ” Id., at 5. The
text contained no mention of the Habeas Corpus Act, but it
nevertheless was referred to as a “suspension of the Habeas
Corpus Act.” Id., at 9–10. As one historian has written,
suspensions “were offcially acts `empowering his majesty to
apprehend and detain such persons as he shall fnd cause to
suspect' ” and to do so “ `without bail or mainprise.' ” Halli-
day, Habeas Corpus, at 248.
Americans shared a similar understanding, as evidenced
by the suspensions that States passed during the Revolution-
ary War. “By their common terms,” these suspensions “be-
stowed authority on state executives to arrest and detain
persons preventively based on suspicion of supporting the
Crown.” Tyler, Habeas Corpus in Wartime, at 111. In
1777, Massachusetts authorized the detention of “any person
whom the council shall deem the safety of the Common-
wealth requires should be restrained of his personal liberty,
or whose enlargement within this state is dangerous thereto”
“without bail or mainpri[s][z]e.” 1776–1777 Mass. Acts ch.
45, §§ 1, 3, p. 641. Virginia similarly allowed the Governor
and council to detain anyone “whom they may have just
cause to suspect of disaffection to the independence of the
United States or of attachment to their enemies.” An act
for giving certain powers to the governour and council, and
3
Mainprise or mainprize is a “writ ordering the sheriff to take . . . secu-
rity . . . for the prisoner's appearance and release the prisoner.” Black's
Law Dictionary 1142 (11th ed. 2019).

Cite
as: 591 U. S. 103 (2020)
147
Thomas, J., concurring
for punishing those who shall oppose the execution of laws,
repr
inted in 10 W. Hening 's Statutes at Large 413–414
(1822). And New York created a board with power “to ap-
prehend and confne or cause to be apprehended or confned
. . . all persons whose going at large shall in the judgment
of the said commissioners or any three of them appear dan-
gerous to the safety of this State.” An Act appointing com-
missioners for detecting and defeating conspiracies and de-
claring their powers (Feb. 5, 1778), 1778 N. Y. Laws ch. 3,
pp. 8–9; see also An Act for constituting a Council of Safety
(Oct. 11, 1777), 1777 N. J. Laws ch. 40, § 4, p. 85; An Act to
Empower the Supreme Executive Council of this Common-
wealth to Provide for the Security Thereof in Special Cases
Where No Provision Is Already Made by Law (Sept. 6, 1777),
ch. 762, § 2, 9 Statutes at Large of Pennsylvania 140 (J. Mitch-
ell & H. Flanders eds. 1903); An Act to punish certain crimes
and misdemeanors, and to prevent the growth of toryism,
1777 Md. Laws ch. 20, § 7.
4
Massachusetts continued using this formula for suspen-
sions under its 1780 Constitution. These suspensions are
especially probative because that Constitution contained lan-
guage similar to the Federal Suspension Clause: “The privi-
lege and beneft of the writ of habeas corpus shall be enjoyed
in this Commonwealth in the most free, easy, cheap, expedi-
tious and ample manner; and shall not be suspended by the
Legislature, except upon the most urgent and pressing occa-
sions, and for a limited time not exceeding twelve months.”
Pt. 2, ch. VI, Art. VII. In response to Shays' Rebellion,
which gained notoriety across the United States, Massachu-
setts passed “An Act for Suspending the Privilege of the
Writ of Habeas Corpus.” It provided that
4
It does not appear that it was necessary to expressly mention the avail-
ability of the writ in a suspending Act. Some States made express refer-
ence to the writ of habeas corpus, see, e. g., ch. 762, § 2, 9 Statutes at Large
of Pennsylvania 140, but many did not.

148 DEP
ARTMENT OF HOMELAND SECURITY v.
THURAISSIGIAM
Thomas, J., concurring
“the Governor, with the advice and consent of the Coun-
ci
l, be and he hereby is authorised and empowered . . .
to command, and cause to be apprehended, and com-
mitted in any Goal, or other safe place, within the Com-
monwealth, any person or persons whatsoever, whom
the Governor and Council, shall deem the safety of the
Commonwealth requires should be restrained of their
personal liberty, or whose enlargement is dangerous
thereto; any Law, Usage or Custom to the contrary not-
withstanding.” 1786–1787 Mass. Acts ch. 41, p. 102.
The Act also provided that “any Person who shall be appre-
hended and imprisoned, as aforesaid, shall be continued in
imprisonment, without Bail or Mainprize, until he shall be
discharged therefrom by order of the Governor, or of the
General Court.” Id., at 103; see also An Act to Suspend the
Privilege of the Writ of Habeas Corpus for Six Months (June
27, 1782), 1782–1783 Mass. Acts ch. 2, pp. 6–7. Thus, in a
jurisdiction with an analog to the Suspension Clause, a sus-
pension was a grant of power to detain without bail or trial
based on suspicion of a crime or dangerousness.
Although the ratifcation debates are not especially illumi-
nating on the meaning of a suspension, they provide further
support for this understanding. Luther Martin wrote that
the Government, upon “suspending the habeas corpus act
may seize upon the persons of those advocates of freedom,
who have had virtue and resolution enough to excite the
opposition, and may imprison them during its pleasure.”
Genuine Information VIII, reprinted in 15 Documentary
History 434. Another essayist, writing in a Boston newspa-
per, explained that suspension would allow “the President,
or President and Senate, as Congress shall think proper to
empower, to take up and confne for any cause, or for any
suspicion, or for no cause, perhaps any person, he or they
shall think proper.” 5 id., at 712 (J. Kaminski & G. Saladino
eds. 1998).

Cite
as: 591 U. S. 103 (2020)
149
Thomas, J., concurring
In sum, a suspension was not necessarily an express limi-
t
ation on the availability of the writ of habeas corpus.
Rather, it appears to have been a grant of power to detain
based on suspicion of a crime or dangerousness without bail
or trial.
IV
Under this interpretation, 8 U. S. C. § 1252 likely does not
suspend the writ of habeas corpus. To be placed in expe-
dited removal, an immigration offcer must “determin[e]”
that an alien is “inadmissible.” § 1225(b)(1)(A)(i). That de-
termination is based in part on the alien's lack of valid entry
documentation and failure to satisfy a 2-year continuous
physical presence requirement, not on mere suspicion or
dangerousness. §§ 1225(b)(1)(A)(i), (iii)(II); § 1182(a)(7).
An alien has the opportunity to avoid expedited removal by
demonstrating a “credible fear of persecution.” §§ 1225(b)
(1)(B)(iii), (v). If the alien is unsuccessful, he may seek
“[ j]udicial review . . . in habeas corpus proceedings” of
“whether [he] is an alien”; “whether [he] was ordered re-
moved” under expedited removal; and “whether [he] can
prove by a preponderance of the evidence that [he] is an alien
lawfully admitted for permanent residence, has been ad-
mitted as a refugee . . . , or has been granted asylum” and
“such status [has not] been terminated.” § 1252(e)(2).
This statute bears little resemblance to a suspension as
that term was understood at the founding. It does not allow
the executive to detain based on mere suspicion of a crime
or dangerousness. Rather, it requires a fnding that the de-
tainee lacks valid documentation and is not eligible for asy-
lum. It even expressly permits habeas relief for a detainee
who does not meet certain criteria for expedited removal.
Some may wish that the Suspension Clause were broader.
Perhaps for this reason, our precedents have departed from
the original understanding of the Suspension Clause. See,
e. g., Boumediene v. Bush, 553 U. S. 723, 826–850 (2008)
(Scalia, J., dissenting); St. Cyr, 533 U. S., at 336–341 (Scalia,

150 DEP
ARTMENT OF HOMELAND SECURITY v.
THURAISSIGIAM
Breyer, J., concurring in judgment
J., dissenting). But this understanding does contain an im-
por
tant guarantee of individual liberty by limiting the cir-
cumstances in which Congress may give the executive power
to detain without bail or trial based on suspicion of a crime
or dangerousness. In this case, that guarantee has not
been violated.
Justice Breyer, with whom Justice Ginsburg joins,
concurring in the judgment.
The statute at issue here, 8 U. S. C. § 1252(e)(2), sets forth
strict limits on what claims a noncitizen subject to expedited
removal may present in federal habeas corpus proceedings.
I agree that enforcing those limits in this particular case
does not violate the Suspension Clause's constitutional com-
mand: “The Privilege of the Writ of Habeas Corpus shall not
be suspended, unless when in Cases of Rebellion or Invasion
the public Safety may require it.” U. S. Const., Art. I, § 9,
cl. 2. But we need not, and should not, go further.
We need not go further because the Government asked
us to decide, and we agreed to review, an issue limited
to the case before us. The question presented is “whether,
as applied to respondent, Section 1252(e)(2) is unconstitu-
tional under the Suspension Clause.” Pet. for Cert. I (em-
phasis added). All we must decide is whether, under the
Suspension Clause, the statute at issue “is unconstitutional
as appl ied to th is par ty, i n the circumst ances of th is
case.” Chicago v. Morales, 527 U. S. 41, 74 (1999) (Sca-
lia, J., dissenting).
Nor should we go further. Addressing more broadly
whether the Suspension Clause protects people challenging
removal decisions may raise a host of diffcult questions in
the immigration context. What review might the Suspen-
sion Clause assure, say, a person apprehended years after
she crossed our borders clandestinely and started a life in
this country? Under current law, noncitizens who have
lived in the United States for up to two years may be placed
in expedited removal proceedings, see § 1225(b)(1)(A)(iii),

Cite
as: 591 U. S. 103 (2020)
151
Breyer, J., concurring in judgment
but Congress might decide to raise that 2-year cap (or re-
move
it altogether). Does the Suspension Clause let Con-
gress close the courthouse doors to a long-term permanent
resident facing removal? In INS v. St. Cyr, 533 U. S. 289
(2001), we avoided just that “serious and diffcult constitu-
tional issue.” Id., at 305.
Could Congress, for that matter, deny habeas review to
someone ordered removed despite claiming to be a natural-
born U. S. citizen? The petitioner in Chin Yow v. United
States, 208 U. S. 8 (1908), and others have faced that predica-
ment. See also § 1252(e)(2)(A) (permitting, at present, ha-
beas review of citizenship claims). What about foreclosing
habeas review of a claim that rogue immigration offcials
forged the record of a credible-fear interview that, in truth,
never happened? Or that such offcials denied a refugee
asylum based on the dead-wrong legal interpretation that
Judaism does not qualify as a “religion” under governing
law? Cf. Tod v. Waldman, 266 U. S. 113, 119–120 (1924)
(observ i ng that i mmigrati on officia ls ig nored a Jew ish
family's claim that they were “refugees” feeing “religious
persecution”).
The answers to these and other “diffcult questions about
the scope of [Suspension Clause] protections” lurk behind the
scenes here. Lozman v. Riviera Beach, 585 U. S. 87, 99
(2018). I would therefore avoid making statements about
the Suspension Clause that sweep beyond the principles
needed to decide this case—let alone come to conclusions
about the Due Process Clause, a distinct constitutional provi-
sion that is not directly at issue here. Compare ibid. (con-
cluding that, with narrow grounds for decision available, re-
solving broader, more diffcult questions “must await a
different case”) with ante, at 117–121 (suggesting that re-
moval is simply not the sort of “restraint” for which the Sus-
pension Clause guarantees a means of “securing release”), and
ante, at 138–140 (addressing a separate due process question).
As for the resolution of the dispute before us, Congress, in
my view, had the constitutional power to foreclose habeas

152 DEP
ARTMENT OF HOMELAND SECURITY v.
THURAISSIGIAM
Breyer, J., concurring in judgment
review of the claims that respondent has pressed in this case.
H
abeas corpus, as we have said, is an “adaptable remedy,”
and the “precise application and scope” of the review it guar-
antees may change “depending upon the circumstances.”
Boumediene v. Bush, 553 U. S. 723, 779 (2008); see also id., at
813 (Roberts, C. J., dissenting). So where the Suspension
Clause applies, the “habeas court's role” may prove more
“extensive,” or less so, depending on the context at issue.
Id., at 780 (majority opinion). Here, even assuming that the
Suspension Clause guarantees respondent some form of ha-
beas review—which is to say, even accepting for argument's
sake that the relief respondent seeks is “release,” contra,
ante, at 126–127—the scope of that constitutionally required
review would not extend to his claims. Two features of this
case persuade me.
First, respondent's status suggests that the constitutional
foor set by the Suspension Clause here cannot be high. A
Border Patrol agent apprehended respondent just 25 yards
inside the border. Respondent was placed in expedited re-
moval proceedings shortly thereafter, where he received the
same consideration for relief from removal that Congress has
afforded persons arriving at the border. Respondent has
never lived in, or been lawfully admitted to, the United
States.
To my mind, those are among the “circumstances” that
inform the “scope” of any habeas review that the Suspen-
sion Clause might guarantee respondent. Boumediene, 553
U. S., at 779. He is thus in a materially different position
for Suspension Clause purposes than the noncitizens in, for
example, Rowoldt v. Perfetto, 355 U. S. 115 (1957), United
States ex rel. Accardi v. Shaughnessy, 347 U. S. 260 (1954),
Bridges v. Wixon, 326 U. S. 135 (1945), and Hansen v. Haff,
291 U. S. 559 (1934). They had all lived in this country for
years. The scope of whatever habeas review the Suspension
Clause assures respondent need not be as extensive as it
might for someone in that position.

Cite
as: 591 U. S. 103 (2020)
153
Breyer, J., concurring in judgment
Second, our precedents demonstrate that respondent's
clai
ms are of the kind that Congress may, consistent with
the Suspension Clause, make unreviewable in habeas pro-
ceedings. Even accepting respondent's argument that our
“fnality era” cases map out a constitutional minimum, see
ante, at 128–129, his claims, on the facts presented here, dif-
fer signifcantly from those that we reviewed throughout
this period.
To begin, respondent concedes that Congress may elimi-
nate habeas review of factual questions in cases like this one.
See, e. g., Nishimura Ekiu v. United States, 142 U. S. 651,
660 (1892). He has thus disclaimed the “right to challenge
the historical facts” found by immigration offcials during his
credible-fear process. Tr. of Oral Arg. 44. But even though
respondent has framed his two primary claims as asserting
legal error, substance belies that label. Both claims are, at
their core, challenges to factual fndings.
During his credible-fear interview, respondent said that he
is an ethnic Tamil from Sri Lanka and that, one day, a group
of men abducted him in a van and brutally beat him. App.
67, 70–74. The asylum offcer believed respondent's account,
id., at 83, which respondent confrmed was his sole basis for
seeking relief, id., at 77, 79. The critical question, then, con-
cerned the nature of the attack: Who attacked respondent
and why? In written fndings, the asylum offcer concluded
that it was “unknown who these individuals were or why
they wanted to harm [respondent].” Id., at 87. Based on
those fndings, the asylum offcer determined that respond-
ent had not established a credible fear of persecution or
torture within the meaning of governing law. See id., at
87, 89.
Respondent, to be sure, casts the brunt of his challenge to
this adverse credible-fear determination as two claims of
legal error. But it is the factual fndings underlying that
determination that respondent, armed with strong new fac-
tual evidence, now disputes. See id., at 23–27; Brief for

154 DEP
ARTMENT OF HOMELAND SECURITY v.
THURAISSIGIAM
Breyer, J., concurring in judgment
Professors of Sri Lankan Politics as Amici Curiae 7–11; see
a
lso ante, at 140, n. 28 (noting that immigration offcials may
revisit their fndings in light of this additional evidence).
Respondent frst asserts that the asylum offcer failed to
apply—or at least misapplied—the applicable legal standard
under § 1225(b)(1)(B)(v), which required only a “signifcant
possibility” that respondent could establish entitlement to
relief from removal. See App. 30–32; Brief for Respond-
ent 6. Respondent also contends that the asylum offcer
“demonstrated a fatal lack of knowledge” about conditions in
Sri Lanka, id., at 7, in violation of provisions requiring that
asylum offcers consider “other facts as are known to the of-
fcer,” § 1225(b)(1)(B)(v), and have “had professional training
in country conditions,” § 1225(b)(1)(E)(i). See App. 24–26,
28–29, 31.
At the heart of both purportedly legal contentions, how-
ever, lies a disagreement with immigration offcials' fndings
about the two brute facts underlying their credible-fear
determination—again, the identity of respondent's attackers
and their motive for attacking him. Other than his own tes-
timony describing the attack, respondent has pointed to
nothing in the administrative record to support either of
these claims.
As to his legal-standard claim, respondent does not cite
anything affrmatively indicating that immigration offcials
misidentifed or misunderstood the proper legal standard
under § 1225( b)(1)(B)(v). Rather, he arg ues that their
credible-fear determination was so egregiously wrong that it
simply must have rested on such a legal error. See Tr. of
Oral Arg. 46–50. But that contention rests on a refusal to
accept the facts as found by the immigration offcials. Spe-
cifcally, it rejects their fndings that no evidence suggested
respondent was attacked by men affliated with the Sri
Lankan Government and motivated by respondent's Tamil
ethnicity or (as he now alleges) history of political activism.
See App. 87; see also, e. g., id., at 23–26. Respondent's

Cite
as: 591 U. S. 103 (2020)
155
Breyer, J., concurring in judgment
quarrel, at bottom, is not with whether settled historical
fac
ts satisfy a legal standard, see Guerrero-Lasprilla v.
Barr, 589 U. S. 221, 227 (2020), but with what the historical
facts are.
Respondent's country-conditions claim is much the same.
Respondent does not cite anything in the administrative
record affrmatively indicating that, contrary to §§ 1225(b)
(1)(B)(v) and (E)(i), immigration offcials, for example, con-
sciously disregarded facts presented or otherwise known to
them, or that the asylum offcer never received relevant pro-
fessional training. Instead, respondent offers a similar re-
frain: The credible-fear determination was so egregiously
wrong that immigration offcials simply must not have
known about conditions in Sri Lanka. See Brief for Re-
spondent 7. So this claim, too, boils down to a factual argu-
ment that immigration offcials should have known who re-
spondent's attackers were and why they attacked him.
Mindful that the “Constitution deals with substance, not
shadows,” Salazar v. Buono, 559 U. S. 700, 723 (2010) (Rob-
erts, C. J., concurring) (internal quotation marks omitted),
I accordingly view both claims as factual in nature, notwith-
standing respondent's contrary characterization. For that
reason, Congress may foreclose habeas review of these
claims without running afoul of the Suspension Clause. See,
e. g., Nishimura Ekiu, 142 U. S., at 660.
The other two claims of error that respondent has pressed
assert that immigration offcials violated procedures re-
quired by law. He frst contends that, by not asking ad-
ditional questions during the credible-fear interview, the
asylum offcer failed to elicit “all relevant and useful informa-
tion,” in violation of 8 CFR § 208.30(d) (2020). See App. 27,
31. Respondent further alleges that translation problems
arose during the interview, in violation of the asylum offcer's
duty under §§ 208.30(d)(1) and (2) to ensure that respondent
was “[a]ble to participate effectively” and “ha[d] an under-
standing of the credible fear determination process.” See

156 DEP
ARTMENT OF HOMELAND SECURITY v.
THURAISSIGIAM
Breyer, J., concurring in judgment
id., at 27–28, 31. Though both claims may reasonably be un-
derstood
as procedural, they may constitutionally be treated
as unreviewable—at least under the border-entry circum-
stances present in this case. See supra, at 152.
Respondent's procedural claims are unlike those that we
reviewed in habeas proceedings during the fnality era.
Throughout that period, the procedural claims that we ad-
dressed asserted errors that fundamentally undermined the
effcacy of process prescribed by law. See Chin Yow, 208
U. S., at 11 (observing that a noncitizen could obtain habeas
relief on procedural grounds if he was denied “an opportunity
to prove his right to enter the country, as the statute meant
that he should have”). Many of our fnality era cases thus
dealt with situations in which immigration offcials failed en-
tirely to take obligatory procedural steps.
In Waldman, for example, we faulted immigration offcials
for making “no fnding[s]” at all on potentially dispositive
issues, including whether the noncitizens were feeing reli-
gious persecution and therefore exempt from a literacy re-
quirement. 266 U. S., at 120. And in United States ex rel.
Johnson v. Shaughnessy, 336 U. S. 806 (1949), we reversed
for procedural error because the noncitizen was denied out-
right “the independent [medical] review and re-examination”
required by then-governing law. Id., at 812; see also Ac-
cardi, 347 U. S., at 267 (faulting the Attorney General for
short-circuiting altogether legally prescribed adjudication
procedures by “dictating ” an immigration decision himself ).
Respondent's procedural claims are different. He does
not allege that immigration offcials, say, denied him a
credible-fear interview or skipped a layer of intra-agency re-
view altogether. Nor do his allegations suggest that the
asylum offcer's questioning or the interpreter's translation
constructively deprived him of the opportunity to establish
a credible fear; indeed, he has consistently maintained that
the information that was elicited more than suffced. See,
e. g., Tr. of Oral Arg. 46–48; cf. Chin Yow, 208 U. S., at 13

Cite
as: 591 U. S. 103 (2020)
157
Breyer, J., concurring in judgment
(observing that “the denial of a hearing cannot be estab-
l
ished” merely “by proving that the decision was wrong ”).
Respondent thus contends that the credible-fear process was
procedurally defective for reasons that are more technical.
He alleges that additional questions would have yielded fur-
ther “relevant and useful” information and that “communica-
tion issues affected the interview” in some way. App. 27.
Respondent's procedural claims consequently concern not
the outright denial (or constructive denial) of a process, but
the precise way in which the relevant procedures were ad-
ministered. They raise fne-grained questions of degree—
i. e., whether the asylum offcer made suffciently thorough
efforts to elicit all “relevant and useful information” and
whether he took suffciently thorough precautions to ensure
that respondent was “[a]ble to participate effectively” in the
interview. 8 CFR § 208.30(d).
Reviewing claims hinging on procedural details of this
kind would go beyond the traditionally “limited role” that
habeas has played in immigration cases similar to this one—
even during the fnality era. St. Cyr, 533 U. S., at 312. To
interpret the Suspension Clause as insisting upon habeas re-
view of these claims would require, by constitutional com-
mand, that the habeas court make indeterminate and highly
record-intensive judgments on matters of degree. Respond-
ent has not cited, and I have not found, any case of ours
suggesting that the Suspension Clause demands parsing pro-
cedural compliance at so granular a level. Neither, appar-
ently, has the Solicitor General. See Tr. of Oral Arg. 14–15,
23–24; Brief for Petitioners 38.
Together with respondent's status, see supra, at 152, these
characteristics convince me that Congress had the constitu-
tional power to foreclose habeas review of respondent's pro-
cedural claims. Recasting those claims as an allegation that
respondent's “due process rights were violated by” immigra-
tion offcials makes no material difference. App. 32. That
alternative description changes none of the features that, in

158 DEP
ARTMENT OF HOMELAND SECURITY v.
THURAISSIGIAM
Sotomayor, J., dissenting
my view, put respondent's procedural claims beyond the
scope
of any minimum habeas review that the Suspension
Clause might assure him under the circumstances.
***
For these reasons, I would hold that, as applied to respond-
ent, § 1252(e)(2)'s limits on habeas review do not violate the
Suspension Clause. I would go no further.
Justice Sotomayor, with whom Justice Kagan joins,
dissenting.
The majority declares that the Executive Branch's denial
of asylum claims in expedited removal proceedings shall be
functionally unreviewable through the writ of habeas corpus,
no matter whether the denial is arbitrary or irrational or
contrary to governing law. That determination fouts over
a century of this Court's practice. In case after case, we
have heard claims indistinguishable from those respondent
raises here, which fall within the heartland of habeas juris-
diction going directly to the origins of the Great Writ.
The Court thus purges an entire class of legal challenges
to executive detention from habeas review, circumscribing
that foundational and “stable bulwark of our liberties,” 1
W. Blackstone, Commentaries 99 (Am. ed. 1832). By self-
imposing this limitation on habeas relief in the absence of a
congressional suspension, the Court abdicates its constitu-
tional duty and rejects precedent extending to the founda-
tions of our common law.
Making matters worse, the Court holds that the Constitu-
tion's due process protections do not extend to noncitizens
like respondent, who challenge the procedures used to deter-
mine whether they may seek shelter in this country or
whether they may be cast to an unknown fate. The decision
deprives them of any means to ensure the integrity of an
expedited removal order, an order which, the Court has just
held, is not subject to any meaningful judicial oversight as

Cite
as: 591 U. S. 103 (2020)
159
Sotomayor, J., dissenting
to its substance. In doing so, the Court upends settled con-
stituti
onal law and paves the way toward transforming
already summary expedited removal proceedings into arbi-
trary administrative adjudications.
Today's decision handcuffs the Judiciary's ability to per-
form its constitutional duty to safeguard individual liberty
and dismantles a critical component of the separation of pow-
ers. It will leave signifcant exercises of executive discre-
tion unchecked in the very circumstance where the writ's
protections “have been strongest.” INS v. St. Cyr, 533 U. S.
289, 301 (2001). And it increases the risk of erroneous im-
migration decisions that contravene governing statutes and
treaties.
The Court appears to justify its decision by adverting to
the burdens of affording robust judicial review of asylum de-
cisions. But our constitutional protections should not hinge
on the vicissitudes of the political climate or bend to accom-
modate burdens on the Judiciary. I respectfully dissent.
I
The as-applied challenge here largely turns on how the
Court construes respondent's requests for relief. Its de-
scriptions, as well as those of one of the concurrences, skew
the essence of these claims. A proper reframing thus is in
order.
A
Respondent frst advances a straightforward legal ques-
tion that courts have heard in habeas corpus proceedings in
“case after case.” Id., at 306. His habeas petition claimed
that an asylum offcer and Immigration Judge “appl[ied] an
incorrect legal standard” by ordering him removed despite
a showing of a signifcant possibility of credible fear to estab-
lish “eligibility for asylum, withholding of removal, and [Con-
vention Against Torture] claims.” App. 31–32; see also 8
U. S. C. § 1225(b)(1)(B)(v) (setting standard for credible fear
as “a signifcant possibility, taking into account the . . . state-

160 DEP
ARTMENT OF HOMELAND SECURITY v.
THURAISSIGIAM
Sotomayor, J., dissenting
ments made by the alien . . . and such other facts as are
known
to the offcer, that the alien could establish eligibility
for asylum”). The Government itself has characterized that
claim as a challenge to the “ `application of a legal standard
to factual determinations . . . underlying the Executive's neg-
ative credible-fear fndings.' ” 917 F. 3d 1097, 1117, n. 20
(CA9 2019) (case below). At bottom, respondent alleged
that he was unlawfully denied admission under governing
asylum statutes and regulations.
The Court disagrees, fattening respondent's claim into a
mere plea “ultimately to obtain authorization to stay in this
country.” Ante, at 107; see also ante, at 117 (describing the
request as a “right to enter or remain in a country”); ante,
at 118, n. 14 (framing relief sought as “gaining a right to
remain in this country”); ante, at 120 (equating relief with
“authorization . . . to remain in a country other than his
own”). Yet while the Court repeatedly says that respond-
ent seeks nothing more than admission as a matter of grace,
its own descriptions of respondent's habeas petition belie its
assertions. See, e. g., ante, at 110, n. 5 (“[T]he gravamen of
his petition is that [respondent] faces persecution in Sri
Lanka `because of ' his Tamil ethnicity and political opin-
ions”); ibid. (suggesting that the same persecution inquiry
governs respondent's Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment
claim); ante, at 140, n. 28 (observing that respondent's habeas
petition contains factual allegations that resemble docu-
mented persecution on the basis of ethnicity or political opin-
ion). Though the Court refuses to admit as much, its de-
scriptions of respondent's arguments illustrate, at bottom,
claims that immigration offcials legally erred in their review
of his asylum application.
In papering over the true nature of respondent's claims,
the Court transforms his assertions of legal error in the ex-
ercise of executive discretion into a naked demand for execu-
tive action. But the distinction between those forms of re-

Cite
as: 591 U. S. 103 (2020)
161
Sotomayor, J., dissenting
lief makes all the difference. The law has long permitted
habeas
petitioners to challenge the legality of the exercise of
executive power, even if the executive action ultimately
sought is discretionary. See St. Cyr, 533 U. S., at 307 (citing
cases). That principle has even more force today, where an
entire scheme of statutes and regulations cabins the Execu-
tive's discretion in evaluating asylum applications. For that
reason, the Court's observation that the ultimate “grant of
asylum is discretionary” is beside the point. Ante, at 110, n. 4.
For its part, one concurring opinion seems to acknowledge
that claims that assert something other than pure factual
error may constitutionally require some judicial review.
Ante, at 152–154 (Breyer, J., concurring in judgment). It
simply determines that respondent's credible-fear claims
amount to nothing more than a “disagreement with immigra-
tion offcials' fndings about the two brute facts underlying
their credible-fear determination,” namely, the identity of his
attackers and their motivations. Ante, at 154. It also
faults respondent for failing to develop his claims of legal
error with citations “indicating that immigration offcials
misidentifed or misunderstood the proper legal standard” or
that they “disregarded” or were not properly trained in iden-
tifying relevant country conditions. Ante, at 154–155.
But the essence of respondent's petition is that the facts
as presented (that he, a Tamil minority in Sri Lanka, was
abducted by unidentifed men in a van and severely beaten),
when considered in light of known country conditions (as re-
quired by statute), amount at least to a “signifcant possibil-
ity” that he could show a well-founded fear of persecution.
So viewed, respondent's challenge does not quibble with his-
toric facts, but rather claims that those “settled facts satisfy a
legal standard,” which this Court has held amounts to a “legal
inquiry.” Guerrero-Lasprilla v. Barr, 589 U. S. 221, 227–
228 (2020). The concurring opinion suggests that any
conclusions drawn from the discrete settled facts here could
not be “so egregiously wrong ” as to amount to legal error.

162 DEP
ARTMENT OF HOMELAND SECURITY v.
THURAISSIGIAM
Sotomayor, J., dissenting
Ante, at 154. But the ultimate inquiry is simply whether
the
facts presented satisfy a statutory standard. While this
concurring opinion may believe that the facts presented here
do not show that respondent is entitled to relief, its view of
the merits does not alter the legal nature of respondent's
challenge.
B
Second, respondent contended that the inadequate proce-
dures afforded to him in his removal proceedings violated
constitutional due process. Among other things, he as-
serted that the removal proceedings by design did not pro-
vide him a meaningful opportunity to establish his claims,
that the translator and asylum offcer misunderstood him,
and that he was not given a “reasoned explanation” for the
decision. App. 27, 32; see also id., at 32 (arguing that
“[u]nder constitutionally adequate procedures, [respondent]
would have prevailed on his claims”). Again, however, the
Court falls short of capturing the procedural relief actually
requested. The Court vaguely suggests that respondent
merely wanted more cracks at obtaining review of his asylum
claims, not that he wanted to challenge the existing expe-
dited removal framework or the process actually rendered
in his case as constitutionally inadequate. See ante, at 107
(characterizing respondent as asking for “additional adminis-
trative review of his asylum claim”); see also ante, at 110, n. 5
(describing petition as seeking “another opportunity to apply
for asylum”). That misconstrues respondent's procedural
challenges to the expedited removal proceedings, which mat-
ters crucially; a constitutional challenge to executive deten-
tion is just the sort of claim the common law has long recog-
nized as cognizable in habeas. See generally Part II, infra.
One concurring opinion, meanwhile, properly characterizes
respondent's claims on this score as “procedural” challenges.
Ante, at 156 (opinion of Breyer, J.). Yet it concludes that
those claims are not reviewable because they do not allege
suffciently serious defects. See ante, at 156–157 (describing

Cite
as: 591 U. S. 103 (2020)
163
Sotomayor, J., dissenting
cognizable claims as those involving “ `no [factual] fnd-
i
ng[s],' ” contentions that offcials “skipped a layer of intra-
agency review altogether,” the “outright denial (or construc-
tive denial) of a process,” or an offcial's “fail[ure] entirely
to take obligatory procedural steps”). But these are simply
distinctions of degree, not of kind. Respondent claimed that
offcials violated governing asylum regulations and deprived
him of due process by conducting an inadequate interview
and providing incomplete translation services. It is diffcult
to see the difference between those claims and the ones that
the concurring opinion upholds as cognizable. Cf. ante, at
156 (fi ndi ng cog ni zable clai ms that an officia l “shor t-
circuit[ed] altogether legally prescribed adjudication proce-
dures by `dictating ' an immigration decision” and that an of-
fcial deprived a noncitizen of “ `an opportunity to prove his
right to enter the country, as the statute meant that he
should have' ”).
Indeed, the concurring opinion notes that the core ques-
tion is whether a defect “fundamentally undermined the
effcacy of process prescribed by law.” Ibid. Respondent's
petition plainly posits procedural defects that violate, or at
least call into question, the “effcacy of process prescribed by
law” and the Constitution. Ibid. The concurring opinion
might think that respondent is not entitled to additional pro-
tections as a matter of law or that the facts do not show he
was denied any required process. But conclusions about the
merits of respondent's procedural challenges should not fore-
close his ability to bring them in the frst place.
C
Finally, the Court asserts that respondent did not specif-
cally seek “release” from custody in what the Court styles as
the “traditional” sense of the term as understood in habeas
jurisprudence. Ante, at 115, 118; cf. ante, at 119 (suggesting
that respondent “does not claim an entitlement to release”).
Instead, the Court seems to argue that respondent seeks

164 DEP
ARTMENT OF HOMELAND SECURITY v.
THURAISSIGIAM
Sotomayor, J., dissenting
only a peculiar form of release: admission into the United
St
ates or additional asylum procedures that would allow for
admission into the United States. Such a request, the Court
implies, is more akin to mandamus and injunctive relief.
Ante, at 118.
But it is the Court's directionality requirement that bucks
tradition. Respondent asks merely to be freed from wrong-
ful executive custody. He asserts that he has a credible fear
of persecution, and asylum statutes authorize him to remain
in the country if he does. That request is indistinguishable
from, and no less “traditional” than, those long made by non-
citizens challenging restraints that prevented them from oth-
erwise entering or remaining in a country not their own.
See Part II–B–1, infra.
The Court has also never described “release” as the sole
remedy of the Great Writ. Nevertheless, respondent's peti-
tion is not limited in the way the Court claims. As it ac-
knowledges, ante, at 115, respondent directly asked the Dis-
trict Court to “[i]ssue a writ of habeas corpus” without
further limitation on the kind of relief that might entail,
App. 33. Respondent also sought “an [o]rder directing [the
Government] to show cause why the writ should not be
granted” and an order “directing [the Government] to vacate
the expedited removal order entered against [him].” Ibid.
As the petition's plain language indicates, respondent raised
a garden-variety plea for habeas relief in whatever form
available and appropriate, including, but not limited to,
release.
***
Fairly characterized, respondent's claims allege legal error
(for violations of governing asylum law and for violations of
procedural due process) and an open-ended request for ha-
beas relief. It is “uncontroversial” that the writ encom-
passes such claims. See Boumediene v. Bush, 553 U. S. 723,
779 (2008) (concluding that release is but one form of relief
available); see also St. Cyr., 533 U. S., at 302, 304–308 (citing

Cite
as: 591 U. S. 103 (2020)
165
Sotomayor, J., dissenting
cases predating the founding to show that the writ could
cha
llenge “the erroneous application or interpretation” of
relevant law); see also Part II–D, infra.
II
Only by recasting respondent's claims and precedents does
the Court reach its decision on the merits. By its account,
none of our governing cases, recent or centuries old, recog-
nize that the Suspension Clause guards a habeas right to the
type of release that respondent allegedly seeks.
1
Ante, at
118, n. 14 (fnding no evidence that the writ was understood
in 1789 to grant relief that would amount to “gaining a right
to remain in this country”); ante, at 118 (characterizing a
“ `meaningful opportunity' ” for review of asylum claims as
falling outside of traditional notions of release from custody).
An overview of cases starting from the colonial period to the
present reveals that the Court is incorrect, even accepting
its improper framing of respondent's claims.
1
The Court wisely declines to explore whether the Suspension Clause
independently guarantees the availability of the writ or simply restricts
the temporary withholding of its operation, a point of disagreement be-
tween the majority and dissent in INS v. St. Cyr, 533 U. S. 289 (2001).
Ante, at 116, n. 12. Justice Scalia, dissenting in St. Cyr, wrote that the
Suspension Clause “does not guarantee any content to (or even the exist-
ence of ) the writ of habeas corpus, but merely provides that the writ shall
not (except in case of rebellion or invasion) be suspended.” 533 U. S., at
337. But no majority of this Court, at any time, has adopted that theory.
Notably, moreover, even Justice Scalia appears to have abandoned his posi-
tion just three years later in Hamdi v. Rumsfeld, 542 U. S. 507, 555–556
(2004) (dissenting opinion) (“The two ideas central to Blackstone's under-
standing—due process as the right secured, and habeas corpus as the in-
strument by which due process could be insisted upon by a citizen illegally
imprisoned—found expression in the Constitution's Due Process and Sus-
pension Clauses”); see also id., at 558 (“The writ of habeas corpus was
preserved in the Constitution—the only common-law writ to be explicitly
mentioned”). Even one concurring opinion seems to recognize that the
Suspension Clause “protect[s] a substantive right.” Ante, at 143 (opinion
of Thomas, J.).

166 DEP
ARTMENT OF HOMELAND SECURITY v.
THURAISSIGIAM
Sotomayor, J., dissenting
A
The
critical inquiry, the Court contends, is whether re-
spondent's specifc requests for relief (namely, admission into
the United States or additional asylum procedures allowing
for admission into the United States) fall within the scope of
the kind of release afforded by the writ as it existed in 1789.
Ante, at 116, 117; see also ante, at 115 (criticizing the court
below for holding § 1252(e)(2) unconstitutional “without cit-
ing any pre-1789 case about the scope of the writ”). This
scope, it explains, is what the Suspension Clause protects
“at a minimum.” Ante, at 116. But as the Court implicitly
acknowledges, its inquiry is impossible. The inquiry also
runs headlong into precedent, which has never demanded the
kind of precise factual match with pre-1789 case law that
today's Court demands.
To start, the Court recognizes the pitfalls of relying on
pre-1789 cases to establish principles relevant to immigration
and asylum: “At the time, England had nothing like modern
immigration restrictions.” Ante, at 123 (“As late as 1816,
the word `deportation' apparently `was not to be found in
any English dictionary' ”). It notes, too, that our cases have
repeatedly observed the relative novelty of immigration laws
in the early days of this country. Ante, at 124 (citing Harisi-
ades v. Shaughnessy, 342 U. S. 580, 588, n. 15 (1952) (“An
open door to the immigrant was the early federal policy”);
St. Cyr, 533 U. S., at 305 (remarking that the frst immigration
regulation was enacted in 1875)); see also Demore v. Kim, 538
U. S. 510, 539 (2003) (O'Connor, J., concurring in part and con-
curring in judgment) (“Because colonial America imposed few
restrictions on immigration, there is little case law prior to
that time about the availability of habeas review to challenge
temporary detention pending exclusion or deportation”).
The Court nevertheless seems to require respondent to
engage in an exercise in futility. It demands that respond-
ent unearth cases predating comprehensive federal immigra-
tion regulation showing that noncitizens obtained release

Cite
as: 591 U. S. 103 (2020)
167
Sotomayor, J., dissenting
from federal custody onto national soil. But no federal stat-
utes
at that time spoke to the permissibility of their entry in
the frst instance; the United States lacked a comprehensive
asylum regime until the latter half of the 20th century. De-
spite the limitations inherent in this exercise, the Court ap-
pears to insist on a wealth of cases mirroring the precise
relief requested at a granular level; nothing short of that,
in the Court's view, would demonstrate that a noncitizen in
respondent's position is entitled to the writ. See ante, at
122, n. 18 (dismissing respondent's cited cases on the ground
that “[w]hether the founding generation understood habeas
relief more broadly than described by Blackstone, Justice
Story, and our prior cases . . . cannot be settled by a single
case or even a few obscure and possibly aberrant cases”); see
also Neuman, Habeas Corpus, Executive Detention, and the
Removal of Aliens, 98 Colum. L. Rev. 961 (1998) (noting the
inherent diffculties of a strict originalist approach in the ha-
beas context because of, among other things, the dearth of
reasoned habeas decisions at the founding).
But this Court has never rigidly demanded a one-to-one
match between a habeas petition and a common-law habeas
ana log. In St. Cyr, for example, the Cour t considered
whether a noncitizen with a controlled substance conviction
could challenge on habeas the denial of a discretionary
waiver of his deportation order. 533 U. S., at 293. In doing
so, the Court did not search high and low for founding-era
parallels to waivers of deportation for criminal noncitizens.
It simply asked, at a far more general level, whether habeas
jurisdiction was historically “invoked on behalf of noncitizens
. . . in the immigration context” to “challenge Executive . . .
detention in civil cases.” Id., at 302, 305. That included
determining whether “[h]abeas courts . . . answered ques-
tions of law that arose in the context of discretionary relief ”
(including questions regarding the allegedly “erroneous ap-
plication or interpretation of statutes”). Id., at 302, and
n. 18, 307.

168 DEP
ARTMENT OF HOMELAND SECURITY v.
THURAISSIGIAM
Sotomayor, J., dissenting
Boumediene is even clearer that the Suspension Clause
i
nquiry does not require a close (much less precise) factual
match with historical habeas precedent. There, the Court
concluded that the writ applied to noncitizen detainees held
in Guantanamo, 553 U. S., at 771, despite frankly admitting
that a “[d]iligent search by all parties reveal[ed] no certain
conclusions” about the relevant scope of the common-law
writ in 1789, id., at 746. Indeed, the Court reasoned that
none of the cited cases illustrated whether a “common-law
court would or would not have granted . . . a petition for a
writ of habeas corpus” like that brought by the noncitizen-
detainee petitioners, and candidly acknowledged that “the
common-law courts simply may not have confronted cases
with close parallels.” Id., at 746, 752. But crucially, the
Court declined to “infer too much, one way or the other, from
the lack of historical evidence on point.” Id., at 752. In-
stead, it sought to fnd comparable common-law habeas cases
by “analogy.” Id., at 748–752.
There is no squaring the Court's methodology today with
St. Cyr or Boumediene. As those cases show, requiring
near-complete equivalence between common-law habeas
cases and respondent's habeas claim is out of step with this
Court's longstanding approach in immigration cases.
B
1
Applying the correct (and commonsense) approach to de-
fning the Great Writ's historic scope reveals that respond-
ent's claims have long been recognized in habeas.
Respondent cites Somerset v. Stewart, Lofft. 1, 98 Eng.
Rep. 499 (K. B. 1772), as an example on point. There, Lord
Mansfeld issued a writ ordering release of a slave bound for
Jamaica, holding that there was no basis in English law for
“sending . . . him over” to another country. Id., at 17–19, 98
Eng. Rep., at 509–510. Thus, the writ issued even though it

Cite
as: 591 U. S. 103 (2020)
169
Sotomayor, J., dissenting
“did not free [the] slave so much as it protected him from
depor
tation.” P. Halliday, Habeas Corpus: From England to
Empire 175 (2010). Somerset establishes the longstanding
availability of the writ to challenge the legality of removal
and to secure release into a country in which a petitioner
sought shelter. Scholarly discussions of Murray's Case sug-
gest much of the same. There, the King 's Bench granted
habeas to allow a nonnative to remain in England and to
prevent his removal to Scotland for trial. Halliday, Habeas
Corpus, at 236.
The Court dismisses these examples outr ight. It ac-
knowledges that the petitioner in Somerset may have been
allowed to remain in England because of his release on ha-
beas, yet declares that this was “due not to the wri[t] order-
ing [his] release” but rather to the existing state of the law.
Ante, at 124. But the writ clearly did more than permit the
petitioner to disembark from a vessel; it prevented him from
being “sen[t] . . . over” to Jamaica. Lofft., at 17, 98 Eng.
Rep., at 509. What England's immigration laws might have
prescribed after the writ's issuance did not bear on the avail-
ability of the writ as a means to remain in the country in the
frst instance.
The Court also casts aside the facts of Murray's Case, even
though they, too, reveal that habeas was used to permit a
nonnative detainee to remain in a country. Ante, at 122,
n. 18. The Court minimizes the decision as “obscure and
possibly aberrant.” Ibid. But given the relative paucity of
habeas cases from this era, it is telling that the case serves
as another example of the writ being used to allow a nonciti-
zen to remain in England.
2
2
The Court notes “the `delicate' relationship between England and Scot-
land at the time” of Murray's Case. Ante, at 123, n. 18. Interestingly,
the Court does not mention the delicate nature of the relationship between
the United States and Iraq in Munaf v. Geren, 553 U. S. 674 (2008), the
centerpiece of the Court's argument, even though that case arose during

170 DEP
ARTMENT OF HOMELAND SECURITY v.
THURAISSIGIAM
Sotomayor, J., dissenting
The reasoning of Somerset and Murray's Case carried
over
to the Colonies, where colonial governments presumed
habeas available to noncitizens to secure their residence in a
territory. See generally Oldham & Wishnie, The Historical
Scope of Habeas Corpus and INS v. St. Cyr, 16 Geo. Immi-
gration L. J. 485 (2002). For example, in 1755, British au-
thorities sought to deport French Acadian settlers from
Nova Scotia, then under the control of Great Britain, to the
American Colonies. Id., at 497. The Governor and Assem-
bly of South Carolina resisted the migrants' arrival and de-
tained them in ships off the coast of Charleston. They rec-
ognized, however, that the exclusion could not persist
because the migrants would be entitled to avail themselves
of habeas corpus. Id., at 498. Ultimately, the Governor
released most of the Acadian migrants for resettlement
throughout the Colony. Ibid.
Founding-era courts accepted this view of the writ's scope.
Rather than credit these decisi ons, the Cour t marches
through an assorted selection of cases and throws up its
hands, contending that the case law merely refects a wide
range of circumstances for which individuals were deprived
of their liberty. See ante, at 121–122. Thus, the Court con-
cludes, the common law simply did not speak to whether indi-
viduals could seek “release” that would allow them to enter
a country (as opposed to being expelled from it).
At the same time, notwithstanding its professed keen in-
terest in precedent, the Court seems to discount decisions
supporting respondent's view that habeas permitted release
from custody into the country. At least two other classes of
cases demonstrate that the writ was available from around
the founding onward to noncitizens who were detained, and
wanted to remain, including those who were prevented from
entering the United States at all.
a military confict. Ante, at 119–120. Nor does it acknowledge the im-
pact that the relationship had on the Munaf Court's decision to refrain
from issuing the writ. See Part II–B–3, in fra.

Cite
as: 591 U. S. 103 (2020)
171
Sotomayor, J., dissenting
First, common-law courts historically granted the writ
to
discharge deserting foreign sailors found and imprisoned
in the United States. In Commonwealth v. Holloway, 1
Serg. & Rawle 392 (1815), the Pennsylvania Supreme Court
granted a writ of habeas corpus to a Danish sailor who had
deserted his vessel in violation of both an employment con-
tract and Danish law. The court explained that the deser-
tion did not violate any domestic law or treaty, and thus
imprisonment was inappropriate. Id., at 396 (opinion of
Tilghman, C. J.). By ordering an unconditional discharge
and declining to return the noncitizen sailor to the custody
of any foreign power, the court used the writ to order a re-
lease that authorized a noncitizen to remain in the United
States, a country “other than his own.” Ante, at 120. The
same was true in similar cases that even the Court cites.
See ante, at 124 (citing Case of the Deserters from the Brit-
ish Frigate L'Africaine, 3 Am. L. J. & Misc. Repertory 132
(Md. 1810) (reporting on a decision discharging deserters);
Case of Hippolyte Dumas, 2 Am. L. J. & Misc. Repertory 86
(Pa. 1809) (same)).
Curiously, the Court does not contest that the writs in
these cases were used to secure the liberty of foreign sailors,
and consequently their right to enter the country.
3
Rather,
it remarks that judges at the time “chafed at having to order
even release,” ante, at 124, which some saw as inconsistent
with principles of comity, Holloway, 1 Serg. & Rawle, at 394.
But reluctance is not inability. That those judges followed
the law's dictates despite their distaste for the result should
give today's Court pause.
The Court seizes on one case where a court ordered a de-
serting sailor to be returned to his foreign vessel-master.
See ante, at 119, 124 (citing Ex parte D'Olivera, 7 F. Cas.
3
Indeed, the Court highlights a striking similarity to the present asylum
challenge by observing that the foreign-deserter cases show the “use of
habeas to secure release from custody when not in compliance with . . .
statute[s] and relevant treaties.” Ante, at 125.

172 DEP
ARTMENT OF HOMELAND SECURITY v.
THURAISSIGIAM
Sotomayor, J., dissenting
853, 854 (No. 3,967) (CC Mass. 1813)). But it reads too much
i
nto this one decision. In D'Olivera, the court held that de-
serting sailors were unlawfully confned and granted a writ
of habeas corpus, but directed that they be discharged to
their vessel-master out of “a desire not to encourage deser-
tion among foreign seamen.” Id., at 854. As illustrated by
other deserter cases supra, the kind of results-oriented deci-
sionmaking in D'Olivera does not seem to be the norm. The
Court's proclamation about how the scope of common-law ha-
beas cannot hinge on a “single case” should have equal force
here. Ante, at 122, n. 18.
Next, courts routinely granted the writ to release wrong-
fully detained noncitizens into Territories other than the de-
tainees' “own.” Many involved the release of fugitive or for-
mer slaves outside their home State. In these cases, courts
decided legal questions as to the status of these petitioners.
In Arabas v. Ivers, 1 Root 92 (Conn. Super. Ct. 1784), for
example, a Connecticut court determined that a former slave
from New York held in local jail on his alleged master's
instructions had, in fact, been freed through his service in
the Continental Army. The court ordered him discharged
“upon the ground that he was a freeman, absolutely manu-
mitted from his master by enlisting and serving in the
army.” Id., at 93. See also In re Belt, 7 N. Y. Leg. Obs. 80
(1848) (granting habeas to discharge an imprisoned fugitive
slave whose owner did not timely apply for his return to
Maryland); In re Ralph, 1 Morris 1 (Iowa 1839) (discharging
person from custody on the grounds that he was not a fugi-
tive slave subject to return to Missouri when he had been
allowed to travel to the Iowa Territory by his former mas-
ter); Commonwealth v. Holloway, 2 Serg. & Rawle 305 (Pa.
1816) (holding on habeas corpus that a child born in a free
State to a slave was free); In re Richardson's Case, 20 F. Cas.
703 (No. 11,778) (CC DC 1837) (ordering prisoner to be dis-
charged in the District of Columbia because warrant was in-
suffcient to establish that he was a runaway slave from
Maryland); Commonwealth v. Griffth, 19 Mass. 11 (1823)

Cite
as: 591 U. S. 103 (2020)
173
Sotomayor, J., dissenting
(contemplating that the status of a freeman seized in Massa-
chusetts
as an alleged fugitive from Virginia could be deter-
mined on habeas corpus).
The weight of h istor ica l ev idence demonstrates that
common-law courts at and near the founding granted habeas
to noncitizen detainees to enter Territories not considered
their own, and thus ordered the kind of release that the
Court claims falls outside the purview of the common-law
writ.
The Court argues that none of this evidence is persuasive
because the writ could not be used to compel authorization
to enter the United States. Ante, at 125. But that analogy
is inapt. Perhaps if respondent here sought to use the writ
to grant naturalization, the comparison would be closer.
But respondent sought only the proper interpretation and
application of asylum law (which statutorily permits him to
remain if he shows a credible fear of persecution), or in the
alternative, release pursuant to the writ (despite being cog-
nizant that he could be denied asylum or rearrested upon
release if he were found within the country without legal
authorization). But that consequence does not deprive re-
spondent of the ability to invoke the writ in the frst instance.
See, e. g., Lewis v. Fullerton, 22 Va. 15 (1821) (affrming that
a judgment on habeas corpus in favor of a slave was not
conclusive of her rights but merely permitted release from
custody on the record before the court and did not prohibit
recapture by a master); Ralph, 1 Morris, at 1 (noting that an
adjudication that petitioner was not a fugitive only exempted
him from fugitive-slave laws but did not prohibit master
from entering Territory to reclaim him on his own accord).
For these reasons, the Court is wrong to dispute that
common-law habeas practice encompassed the kind of release
respondent seeks here.
2
The Court also appears to contend that respondent sought
merely additional procedures in his habeas adjudication and
that this kind of relief does not fall within the traditional

174 DEP
ARTMENT OF HOMELAND SECURITY v.
THURAISSIGIAM
Sotomayor, J., dissenting
scope of the writ. That refects a misunderstanding of the
wr
it. Habeas courts regularly afforded the state additional
opportunities to show that a detention was lawful before or-
dering what the Court now considers a release outright.
The common-law writ of habeas corpus ad subjiciendum
evolved into what we know and hail as the “Great Writ.”
See 3 W. Blackstone, Commentaries on the Laws of England
131 (1768). That writ, at bottom, allowed a court to elicit
the cause for an individual's imprisonment and to ensure that
he be released, granted bail, or promptly tried. See Oaks,
Habeas Corpus in the States—1776–1865, 32 U. Chi. L. Rev.
243, 244 (1965). From its origins, the writ did not require
immediate release, but contained procedures that would
allow the state to proceed against a detainee. Under the
English Habeas Corpus Act of 1679, jailers were ordered to
make a “return” to a writ within a designated time period
and certify the true causes of imprisonment. Id., at 252–
253. Justices of the King 's Bench obtained returns that pro-
vided full legal accounts justifying detention. Halliday &
White, The Suspension Clause: English Text, Imperial Con-
texts, and American Implications, 94 Va. L. Rev. 575, 599–
600 (2008) (Halliday & White). They also examined and
were guided by depositions upon which a detention was
founded to determine whether to admit a petitioner to bail.
Oaks, 32 U. Chi. L. Rev., at 258. Indeed, the King 's Bench
routinely considered facts not asserted in the return to assist
scrutiny of detentions. Halliday & White 610; see also id., at
611 (documenting instances where the court would consider af-
fdavits of testimony beyond what was included in the return).
Moreover, early practice showed that common-law habeas
courts routinely held proceedings to determine whether de-
tainees should be discharged immediately or whether the
state could subject them to further proceedings, including
trial in compliance with proper procedures. See Ex parte
Bollman, 4 Cranch 75, 125 (1807) (taking testimony in con-
junction with an “inquiry” to determine whether “the ac-

Cite
as: 591 U. S. 103 (2020)
175
Sotomayor, J., dissenting
cused shall be discharged or held to trial”). In Ex parte
Kaine
, 14 F. Cas. 78 (No. 7,597) (CC SDNY 1853), for exam-
ple, a federal court analyzed whether a petitioner, who had
been found guilty of an offense by a commissioner, was sub-
ject to extradition. The court passed on questions of law
concerning whether the commissioner had the power to adju-
dicate petitioner's criminality. Id., at 80. Ultimately, the
court found that petitioner was “entitled to be discharged
from imprisonment” due to defects in the proceedings be-
fore the commissioner, but entertained further evidence on
whether he could nevertheless be extradited. Id., at 82.
Only after fnding no additional evidence that would permit
extradition did the court order release. Ibid.
Similarly, in Coleman v. Tennessee, 97 U. S. 509 (1879), the
petitioner had been convicted of a capital offense by a state
court, even though he had committed the offense while a sol-
dier in the United States Army. Id., at 510–511. This
Court granted habeas on the grounds that the state-court
judgment was void but, because the petitioner had also been
found guilty of murder by a military court, nevertheless
turned the prisoner over to the custody of the military for
appropriate punishment. Id., at 518–520. Not surpris-
ingly, then, the Court has found that habeas courts may dis-
charge detainees in a manner that would allow defects in a
proceeding below to be corrected. In re Bonner, 151 U. S.
242, 261 (1894).
These examples confrm that outright habeas release was
not always immediately awarded. But they also show that
common-law courts understood that relief short of release,
such as ordering offcials to comply with the law and to cor-
rect underlying errors, nevertheless fell within the scope of
a request for habeas corpus.
4
4
The Court considers irrelevant cases demonstrating that the executive
was permitted to cure defects in detention because “the legality of [re-
spondent's] detention is not in question” here. Ante, at 122; see also ante,
at 137 (acknowledging that it is “often `appropriate' to allow the execu-

176 DEP
ARTMENT OF HOMELAND SECURITY v.
THURAISSIGIAM
Sotomayor, J., dissenting
3
D
espite exalting the value of pre-1789 precedent, the
Court's key rationale for why respondent does not seek “re-
lease” in the so-called traditional sense rests on an inap-
posite, contemporary case: Munaf v. Geren, 553 U. S. 674
(2008).
5
Ante, at 119. Munaf, the Court claims, shows that
habeas is not available to seek an order to be brought into
this country. Ante, at 119. But that case is in a category
of its own and has no bearing on respondent's claims here.
Munaf addressed a one-of-a-kind scenario involving the
transfer of individuals between different sovereigns. There,
two United States citizens in Iraq fled habeas petitions seek-
ing to block their transfer to Iraqi authorities after being
accused of committing crimes and detained by American-led
coalition forces pending investigation and prosecution in
Iraqi courts. 553 U. S., at 679–680, 692. The central ques-
tion, this Court repeatedly stated, was “whether United
States district courts may exercise their habeas jurisdiction
to enjoin our Armed Forces from transferring individuals
detained within another sovereign's territory to that sover-
eign's government for criminal prosecution.” Id., at 689; see
also id., at 704.
In concluding that habeas did not extend to the relief
sought by the citizens detained in Iraq, the Munaf Court
relied on cases involving habeas petitions fled to avoid ex-
tradition. Id., at 695–696 (citing Wilson v. Girard, 354 U. S.
524 (1957) (per curiam), and Neely v. Henkel, 180 U. S. 109
tive to cure defects in a detention” in habeas cases (quoting Boumediene
v. Bush, 553 U. S. 723, 779 (2008))). But as explained in Part I–A, supra,
that is exactly what respondent questions by arguing that his detention
violated governing asylum law.
5
Oddly, the Court embraces Munaf—a recent decision involving de-
tainees held outside the territorial limits of the United States who
were subject to prosecution by a foreign sovereign—to support its con-
clusion about the availability of habeas review. Yet at the same time,
it dismisses respondent's reliance on Bo umed i ene outr ight on the
grounds that the case is “ not about i mmigrati on at a l l. ” An te,
at 136.

Cite
as: 591 U. S. 103 (2020)
177
Sotomayor, J., dissenting
(1901)). These decisions, the Court concluded, established
that
American courts lack habeas jurisdiction to enjoin an
extradition or similar transfer to a foreign sovereign exercis-
ing a right to prosecution. 553 U. S., at 696–697. These
circumstances, which today's Court overlooks, mean that
Munaf is more like the extradition cases that the Court
deems not “pertinent.” Ante, at 125.
6
In any event, respondent is not similarly situated to the
petitioners in Munaf, who sought habeas to thwart removal
from the United States in the face of a competing sovereign's
6
Nor is the Court correct in dismissing common-law extradition prece-
dents as inapposite because they show “nothing more than the use of ha-
beas to secure release from custody.” Ante, at 125. Indeed, these extra-
dition cases demonstrate that the common-law writ encompassed exactly
the kind of permission to remain in a country that the Court claims falls
outside its scope. Ante, at 117, 119. In re Stupp, 23 F. Cas. 296 (No.
13,563) (CC SDNY 1875), which the Court cites in passing, emphatically
affrmed that habeas corpus was available to challenge detention pending
extradition: “[T]he great purposes of the writ of habeas corpus can be
maintained, as they must be. The court issuing the writ must inquire and
adjudge whether the commissioner acquired jurisdiction . . . and had be-
fore him legal and competent evidence of facts whereon to pass judgment
as to the fact of criminality, and did not arbitrarily commit the accused for
surrender.” Id., at 303. Although the Stupp court did not ultimately
issue the writ, other courts have. See, e. g., Ex parte Kaine, 14 F. Cas.
78, 82 (No. 7,597) (CC SDNY 1853) (granting the writ to a prisoner whose
detention was “in consequence of illegality in the proceedings under the
[extradition] treaty”); Pettit v. Walshe, 194 U. S. 205, 219–220 (1904) (af-
frming a grant of habeas where a prisoner's detention violated the terms
of an extradition treaty with Great Britain); In re Washburn, 4 Johns. Ch.
106, 114 (N. Y. 1819) (granting a habeas petition of a noncitizen after a
request for extradition); People v. Goodhue, 2 Johns. Ch. 198, 200 (N. Y.
1816) (releasing prisoner subject to possible interst ate extraditi on).
These extradition-related habeas cases show that the writ was undoubt-
edly used to grant release in the very direction—that is, away from a
foreign country and into the United States—that the Court today derides.
Indeed, the same scholar the Court cites makes the point that extradition
specifcally allowed courts to hear challenges to the Executive's ability
to “detain aliens for removal to another country at the request of [the]
government.” Neuman, Habeas Corpus, Executive Detention, and the
Removal of Aliens, 98 Colum. L. Rev. 961, 1003 (1998).

178 DEP
ARTMENT OF HOMELAND SECURITY v.
THURAISSIGIAM
Sotomayor, J., dissenting
interests. Mindful that the case implicated “sensitive for-
eig
n policy issues in the context of ongoing military opera-
tions,” the Munaf Court observed that granting habeas re-
lief would “interfere with Iraq's sovereign right to punish
offenses against its laws committed within its borders.” 553
U. S., at 692 (internal quotation marks omitted); see also id.,
at 689, 694, 700. For that reason, it proceeded “ `with the
circumspection appropriate when this Court is adjudicating
issues inevitably entangled in the conduct of . . . interna-
tional relations.' ” Id., at 689, 692. Here, of course, no for-
eign sovereign is exercising a similar claim to custody over
respondent during an ongoing confict that would trigger the
comity concerns that animated Munaf.
C
Next, the Court casually dismisses nearly 70 years of prec-
edent from the fnality era, the most relevant historic period
for examining judicial review of immigration decisions. It
concludes that, in case after case, this Court exercised ha-
beas review over legal questions arising in immigration cases
akin to those at issue here, not because the Constitution re-
quired it but only because a statute permitted it. Ante, at
128–129. That conclusion is both wrong in its own right and
repeats arguments this Court rejected a half century ago
when reviewing this same body of cases.
At the turn of the 20th century, immigration to the United
States was relatively unrestricted. Public sentiment, how-
ever, grew hostile toward many recent entrants, particularly
migrant laborers from China. In response, Congress en-
acted the so-called Chinese Exclusion Act of 1882, ch. 126, 22
Stat. 58, which prohibited the entry of Chinese laborers to
the United States. The Scott Act, ch. 1064, 25 Stat. 504,
enacted in 1888, forbade reentry of Chinese laborers who
had left after previously residing in this country. Although
immigration offcials routinely denied entry to arriving mi-
grants on the basis of these laws, many of these decisions

Cite
as: 591 U. S. 103 (2020)
179
Sotomayor, J., dissenting
were overturned by federal courts on habeas review. See,
e.
g., United States v. Jung Ah Lung, 124 U. S. 621 (1888).
This did not escape Congress' attention. See Select Com-
mittee on Immigration and Naturalization, H. R. Rep. No.
4048, 51st Cong., 2d Sess., 273–275 (1891) (documenting rate
of reversal of immigration exclusion orders by Federal
District Court in San Francisco). Congress responded by
enacting the Immigration Act of 1891, which stripped federal
courts of their power to review immigration denials: “All de-
cisions made by the inspection offcers or their assistants
touching the right of any alien to land, when adverse to such
right, shall be fnal unless appeal be taken to the superin-
tendent of immigration, whose action shall be subject to re-
view by the Secretary of the Treasury.” Act of Mar. 3, 1891,
§ 8, 26 Stat. 1085. By its terms, that restriction on federal
judicial power was not limited to review of some undefned
subset of issues, such as questions of law or fact; it made
executive immigration decisions fnal in all respects.
The Court, however, quickly construed the statute in Nish-
imura Ekiu v. United States, 142 U. S. 651 (1892) (Ekiu),
to preclude only review of executive factfnding. Having so
construed the statute, the Court in Ekiu, and in case after
case following Ekiu, recognized the availability of habeas
to review a range of legal and constitutional questions aris-
ing in immigration decisions. The crucial question here is
whether the fnality-era Courts adopted that construction of
jurisdiction-stripping statutes because it was simply the cor-
rect interpretation of the statute's terms and nothing more
or because that construction was constitutionally compelled
to ensure the availability of habeas review. The better view
is that Ekiu's construction of the 1891 statute was constitu-
tionally compelled.
In Ekiu, the Court recognized that a Japanese national
was entitled to seek a writ of habeas corpus to review an
exclusion decision issued almost immediately upon her ar-
rival to the United States. As the Court notes, ante, at 130,

180 DEP
ARTMENT OF HOMELAND SECURITY v.
THURAISSIGIAM
Sotomayor, J., dissenting
the relevant issue in that case was whether the 1891 Act, “if
constr
ued as vesting . . . exclusive authority” in the Execu-
tive to determine a noncitizen's right to enter the United
States, violated the petitioner's constitutional “right to the
writ of habeas corpus, which carried with it the right to a
determination by the court as to the legality of her deten-
tion,” 142 U. S., at 656 (statement of the case). That is, the
Ekiu Court confronted whether construing the 1891 Act as
precluding all judicial review of immigration decisions like
the exclusion order at issue would violate the constitutional
guarantee to habeas.
The Court answered that question by construing the 1891
Act as precluding judicial review only of questions of fact.
“An alien immigrant,” the Court frst held, who is “prevented
from landing [in the United States] by any [executive] offcer
. . . and thereby restrained of his liberty, is doubtless entitled
to a writ of habeas corpus to ascertain whether the restraint
is lawful.” Id., at 660. The Court then explained that it
had authority to hear the case (despite Congress' clear elimi-
nation of judicial review) because it interpreted the 1891 Act
as meaning only that an immigration offcial's determination
of “facts” was fnal and unreviewable. Ibid. (explaining that
Congress could entrust the fnal determination of facts to
executive offcers).
After so articulating the 1891 Act's limits on judicial re-
view, the Court analyzed two challenges to the integrity of
the proceedings, neither of which raised questions of histori-
cal fact. See id., at 662–663 (considering whether immigra-
tion offcer's appointment was unconstitutional such that his
actions were invalid); id., at 663 (determining whether pro-
ceedings were unlawful because the offcer failed to take
sworn testimony or make a record of the decision).
7
Al-
though the Court ultimately concluded that those legal and
7
These claims are uncannily reminiscent of the kinds of claims respond-
ent advances here. See Parts II–A and II–B, supra.

Cite
as: 591 U. S. 103 (2020)
181
Sotomayor, J., dissenting
constitutional challenges lacked merit, id., at 662–664, what
matters
is that the Court evaluated the arguments and rec-
ognized them as possible grounds for habeas relief.
What, then, can Ekiu tell us? Today's Court fnds sig-
nifcant that the brief opinion makes no explicit mention of
the Suspension Clause. Ante, at 132. This omission, it con-
cludes, can only mean that the Ekiu Court did not think that
(or had no occasion to consider whether) the Suspension
Clause “imposed any limitations on the authority of Con-
gress to restrict the issuance of writs of habeas corpus in
immigration matters.” Ante, at 131. According to this the-
ory, Ekiu concluded that the plain terms of the 1891 Act
prohibited judicial review of executive factfnding alone, and
nothing more can be said.
But this myopic interpretation ignores many salient facts.
To start, the 1891 Act was enacted for the purpose of limiting
all judicial review of immigration decisions, not just a subset
of factual issues that may arise in those decisions. Further,
the plain terms of the statute did not cabin the limitation on
judicial review to historical facts found by an immigration
offcer. Ekiu, moreover, evaluated the Act's constitutional-
ity in view of the petitioner's argument that the limitation
on judicial review violated the constitutional “right to the
writ of habeas corpus.” 142 U. S., at 656 (statement of the
case). These considerations all point in one direction: Even
if the Ekiu Court did not explicitly hold that the Suspension
Clause prohibits Congress from broadly limiting all judicial
review in immigration proceedings, it certainly decided the
case in a manner that avoided raising this constitutional
question. Indeed, faced with a jurisdiction-stripping stat-
ute, the only review left for the Ekiu Court was that re-
quired by the Constitution and, by extension, protected by
the guarantee of habeas corpus.
The Court also maintains that Ekiu concluded that “ `the
act of 1891 is constitutional' ” in full, not “only in part.”

182 DEP
ARTMENT OF HOMELAND SECURITY v.
THURAISSIGIAM
Sotomayor, J., dissenting
Ante, at 132 (quoting Ekiu, 142 U. S., at 664). Yet as the
Cour
t acknowledges, it was only “after interpreting the 1891
Act” as precluding judicial review of questions of fact alone
that the Ekiu Court deemed it constitutional. Ante, at 131;
see also Ekiu, 142 U. S., at 664 (concluding that “[t]he result”
of its construction is that the 1891 Act “is constitutional”).
That cannot mean that Ekiu found the 1891 Act constitu-
tional even to the extent that it prevented all judicial review
of immigration decisions, even those brought on habeas.
What it can only mean, instead, is that Ekiu's construction
of the 1891 Act was an answer to the constitutional question
posed by the case: whether and to what extent denying judi-
cial review under the 1891 Act would violate the constitu-
tional “right to the writ of habeas corpus.” Id., at 656
(statement of the case).
8
Bolstering this interpretation is that the Court has repeat-
edly reached the same result when interpreting subsequent
statutes purporting to strip federal courts of all jurisdiction
over immigration decisions. In Gegiow v. Uhl, 239 U. S. 3
(1915), for example, the Court observed that Ekiu decided
that “[t]he conclusiveness of the decisions of immigration of-
fcers under [the 1891 Act]” referred only to “conclusiveness
upon matters of fact.” 239 U. S., at 9. It relied heavily on
Ekiu to support its determination that the Immigration Act
of 1907, 34 Stat. 898, which also rendered decisions of immi-
gration offcers to be “fnal,” § 25, id., at 907, similarly only
barred judicial review of questions of fact, 239 U. S., at 9.
Indeed, time and again, against a backdrop of statutes pur-
porting to bar all judicial review of executive immigration
decisions, this Court has entertained habeas petitions raising
8
The Court also claims that because Ekiu stated that the 1891 Act was
constitutional, respondent must be wrong that Ekiu found the 1891 Act
“unconstitutional in most of its applications (i. e., to all questions other
than questions of fact).” Ante, at 132. But the point here is not that
Ekiu actually found the 1891 Act unconstitutional in part; it is that Ekiu
interpreted the 1891 Act to avoid rendering it unconstitutional in part.

Cite
as: 591 U. S. 103 (2020)
183
Sotomayor, J., dissenting
a host of issues other than historic facts found by immigra-
ti
on authorities.
9
To be sure, this entrenched line of cases does not directly
state that habeas review of immigration decisions is constitu-
tionally compelled. But an alternate understanding of those
cases rests on an assumption that is farfetched at best: that,
year after year, and in case after case, this Court simply
ignored the unambiguous texts of the serial Immigration
Acts limiting judicial review altogether. The Court's pat-
tern of hearing habeas cases despite those statutes' contrary
mandate refects that the Court understood habeas review in
those cases as not statutorily permitted but constitutionally
compelled.
In any event, we need not speculate now about whether
the Ekiu Court, or the Courts that followed, had the consti-
tutional right to habeas corpus in mind when they inter-
preted jurisdiction-stripping statutes only to preclude re-
view of historic facts. This Court has already identifed
9
See, e. g., The Japanese Immigrant Case, 189 U. S. 86 (1903) (habeas
petition fled by noncitizen alleged to have entered unlawfully and appre-
hended four days after being let on shore); Gonzales v. Williams, 192
U. S. 1 (1904) (habeas petition fled by resident of Puerto Rico detained at
the port, who claimed that Puerto Rican nationals are United States citi-
zens allowed to enter the mainland as a matter of course); United States
ex rel. Turner v. Williams, 194 U. S. 279 (1904) (habeas petition by nonciti-
zen found within the United States 10 days after entry alleging his arrest
was unconstitutional); Chin Yow v. United States, 208 U. S. 8 (1908) (ha-
beas petition fled by a Chinese individual with a claim of U. S. citizenship
who was detained on a steamship and prohibited from disembarking);
Yee Won v. White, 256 U. S. 399 (1921) (habeas petition fled on behalf of
noncitizen wife and child denied admission to the United States upon ar-
rival despite claiming legal right to join a family member residing in the
country); Tod v. Waldman, 266 U. S. 113 (1924) (habeas petition by family
feeing religious persecution in Russia denied entry on the grounds that
they were likely to become a public charge); United States ex rel. Poly-
meris v. Trudell, 284 U. S. 279 (1932) (habeas petition fled by residents of
Greek ancestry who left the United States and sought reentry after a
lengthy trip abroad).

184 DEP
ARTMENT OF HOMELAND SECURITY v.
THURAISSIGIAM
Sotomayor, J., dissenting
which view is correct. In Heikkila v. Barber, 345 U. S. 229
(1953),
the Court explained that Ekiu and its progeny had,
in fact, construed the fnality statutes to avoid serious consti-
tutional questions about Congress' ability to strip federal
courts of their habeas power. As Heikkila reiterated, the
key question in Ekiu (and in later cases analyzing fnality
statutes) was the extent to which the Constitution allowed
Congress to make administrative decisions unreviewable.
345 U. S., at 234. And it concluded that the jurisdiction-
stripping immigration statute in that case, a successor to the
1891 Act, “preclud[ed] judicial intervention in deportation
cases except insofar as it was required by the Constitution.”
Id., at 234–235.
Heikkila thus settles the matter; during the fnality era,
this Court either believed that the Constitution required ju-
dicial review on habeas of constitutional and legal questions
arising in immigration decisions or, at the very least, thought
that there was a serious question about whether the Consti-
tution so required. Although the Court tries to minimize
that conclusion as not dispositive of the question presented,
ante, at 133, such a conclusion undoubtedly weighs against
fnding § 1252(e)(2) constitutional in spite of its broad prohibi-
tion on reviewing constitutional and legal questions.
The Court dismisses Heikkila and its explanation of the
fnality-era cases outright. It fxates on the fact that Heik-
kila was not itself a habeas case and instead analyzed
whether judicial review of immigration orders was available
under the Administrative Procedure Act (APA). Ante, at
136. Heikkila's discussion of the APA does not detract from
its affrmation that when the language of a jurisdiction-strip-
ping statute precludes all judicial review, the only review
that is lef t is that required by the constituti ona l
guarantee of habeas corpus. 345 U. S., at 235.
10
Most im-
10
Indeed, the Government itself embraced that position in a brief to the
Court during that time. Brief for Respondent in Martinez v. Neelly,
O. T. 1952, No. 218, p. 19 (“The clear purpose of this [fnality] provision

Cite
as: 591 U. S. 103 (2020)
185
Sotomayor, J., dissenting
portantly, Heikkila concluded that APA review was not
equiva
lent to that judicial review. Second, the Court also
states that Heikkila never interpreted Ekiu as having found
the 1891 Act “partly unconstitutional.” Ante, at 136. But
there was no need for the Ekiu Court to fnd the 1891 Act
unconstitutional in part to construe it as prohibiting only re-
view of historic facts. Instead, as Heikkila explained, Ekiu
reached its decision by exercising constitutional avoidance.
By disregarding Heikkila, the Court ignores principles of
stare decisis to stir up a settled debate. Cf. Ramos v. Loui-
siana, 590 U. S. 83, 140, 150 (2020) (Alito, J., dissenting).
Perhaps its view is tinted by the fact that it doubts the Sus-
pension Clause could limit Congress' ability to eliminate ha-
beas jurisdiction at all. The Court scoffs at the notion that
a limitation on judicial review would have been understood
as an unconstitutional suspension of habeas, noting and dis-
tinguishing the limited number of occasions that this Court
has found a suspension of the writ of habeas corpus. See
ante, at 132–133; but see ante, at 147, n. 4 (Thomas, J., con-
curring) (noting that historically, suspensions of habeas did
not necessarily mention the availability of the writ). The
references to those major historic moments where this Court
has identifed a suspension only establish the outer bounds
of Congress' suspension powers; it says nothing about
whether, and to what extent, more limited restrictions on
judicial review might also be found unconstitutional.
Indeed, the Court acknowledges that some thought it an
open question during the fnality era whether the Suspension
was to preclude judicial review of the Attorney General's decisions in alien
deportation cases insofar as the Congress could do so under the Constitu-
tion”); id., at 33 (“[T]he courts have long recognized” the fnality provi-
sions “restric[t] review of deportation orders as far as the Constitution
permits”); see also id., at 18 (explaining that the fnality provisions “pre-
cluded judicial review of deportation orders except for the collateral
review in habeas corpus which the Constitution prescribes in cases of
personal detention”).

186 DEP
ARTMENT OF HOMELAND SECURITY v.
THURAISSIGIAM
Sotomayor, J., dissenting
Clause imposes limits on Congress' ability to limit judicial
re
view. See ante, at 135, n. 25 (quoting Justice Brewer's
concurring opinion in United States ex rel. Turner v. Wil-
liams, 194 U. S. 279, 295 (1904), raising the question). That
this question remained unsettled, see n. 1, supra, suffces to
support the Court's conclusion in Heikkila: The fnality-era
Courts endeavored to construe jurisdiction-stripping stat-
utes to avoid serious constitutional questions about the ex-
tent of congressional power to limit judicial review.
At bottom, the better view of the fnality-era cases is that
they understood the habeas right they sustained to be, or at
least likely to be, constitutionally compelled. Certainly the
cases do not establish the Court's simplistic view to the con-
trary: That the fnality-era Court entertained habeas peti-
tions only because no statute limited its ability to do so, and
no Constitutional provision required otherwise. That read-
ing of precedent disregards signifcant indications that this
Court persistently construed immigration statutes stripping
courts of judicial review to avoid depriving noncitizens of
constitutional habeas guarantees. Ignoring how past courts
wrestled with this issue may make it easier for the Court to
announce that there is no unconstitutional suspension today.
But by sweeping aside most of our immigration history in
service of its conclusion, the Court reopens a question that
this Court put to rest decades ago, and now decides it differ-
ently. The cost of doing so is enormous. The Court, on its
own volition, limits a constitutional protection so respected
by our Founding Fathers that they forbade its suspension
except in the direst of circumstances.
D
Not only does the Court cast to one side our fnality-era
jurisprudence, it skims over recent habeas precedent. Per-
haps that is because these cases undermine today's decision.
Indeed, both INS v. St. Cyr, 533 U. S. 289 (2001), and Boume-
diene v. Bush, 553 U. S. 723 (2008), instruct that eliminating

Cite
as: 591 U. S. 103 (2020)
187
Sotomayor, J., dissenting
judicial review of legal and constitutional questions associ-
ated
with executive detention, like the expedited removal
statute at issue here does, is unconstitutional.
The Court acknowledges St. Cyr's holding but does not
heed it. St. Cyr concluded that “ `[b]ecause of [the Suspen-
sion] Clause, some “judicial intervention in deportation
cases” is unquestionably “required by the Constitution.” ' ”
Ante, at 137 (quoting 533 U. S., at 300). This statement af-
frms what the fnality-era cases long suggested: that the
Suspension Clause limits Congress' power to restrict judicial
review in immigration cases. Nor did St. Cyr arrive at this
conclusion simply based on canons of statutory construction.
The Court spoke of deeper historical principles, affrming re-
peatedly that “[a]t its historical core, the writ of habeas cor-
pus has served as a means of reviewing the legality of Execu-
tive detention, and it is in that context that its protections
have been strongest.” Id., at 301; see also id., at 305 (“The
writ of habeas corpus has always been available to review
the legality of Executive detention”). The Court looked to
founding-era cases to establish that the scope of this guaran-
tee extended to both the “interpretation” and “application”
of governing law, including law that guided the exercise of
executive discretion. Id., at 302.
Based on that history, the Court also concluded that “a
serious Suspension Clause issue would be presented” by pre-
cluding habeas review in the removal context, id., at 305,
even where there was “no dispute” that the Government had
the legal authority to detain a noncitizen like St. Cyr, id., at
303. Thus based on the same principles that the Court pur-
ports to apply in this case, the St. Cyr Court reached the
opposite conclusion: The Suspension Clause likely prevents
Congress from eliminating judicial review of discretionary ex-
ecutive action in the deportation context, even when the writ
is used to challenge more than the fact of detention itself.
Boumediene reprised many of the rules articulated in
St. Cyr. It frst confrmed that the Suspension Clause ap-

188 DEP
ARTMENT OF HOMELAND SECURITY v.
THURAISSIGIAM
Sotomayor, J., dissenting
plied to detainees held at Guantanamo Bay, repeating the
“uncontroversia
l” proposition that “the privilege of habeas
corpus entitles” an executive detainee to a “meaningful op-
portunity to demonstrate that he is being held pursuant to
`the erroneous application or interpretation' of relevant law.”
553 U. S., at 779 (quoting St. Cyr, 533 U. S., at 302). Then
the Court detailed the writ's remedial scope. It affrmed
that one of the “easily identifed attributes of any constitu-
tionally adequate habeas corpus proceeding ” is that “the ha-
beas court must have the power to order the conditional re-
lease of an individual unlawfully detained.” 553 U. S., at
779. Notably, the Court explained that release “need not be
the exclusive remedy,” reasoning that “common-law habeas
corpus was, above all, an adaptable remedy” whose “precise
application and scope changed depending upon the circum-
stances. ” Ib id. (citing 3 W. Blackstone, Commentaries
*131). The Court noted that any habeas remedy might be
tempered based on the traditional test for procedural ade-
quacy in the due process context and thus could accommo-
date the “rigor of any earlier proceedings.” 553 U. S., at 781
(citing Mathews v. Eldridge, 424 U. S. 319, 335 (1976)).
The Court discounts these cases because it objects to
the perceived direction of respondent's requested release.
Ante, at 136–137 (explaining that Boumediene did not sug-
gest that the enemy combatant petitioners were entitled to
enter the United States upon release). It similarly contends
that respondent's attempted use of the writ is “very differ-
ent” from that at issue in St. Cyr. Ante, at 138.
Neither rejoinder is sound. St. Cyr and Boumediene con-
frm that at minimum, the historic scope of the habeas power
guaranteed judicial review of constitutional and legal chal-
lenges to executive action. They do not require release as
an exclusive remedy, let alone a particular direction of re-
lease. Rather, both cases built on the legacy of the fnality
era where the Court, concerned about the constitutionality of
limiting judicial review, unquestionably entertained habeas
petitions from arriving migrants who raised the same types

Cite
as: 591 U. S. 103 (2020)
189
Sotomayor, J., dissenting
of questions respondent poses here. See, e. g., St. Cyr, 533
U
. S., at 307 (citing United States ex rel. Accardi v. Shaugh-
nessy, 347 U. S. 260 (1954) (habeas case attacking the denial
of an application for suspension of deportation)); see also id.,
at 268 (“[W]e object to the Board's alleged failure to exercise
its own discretion, contrary to existing valid regulations”
(emphasis deleted)).
As discussed above, respondent requests review of immi-
gration offcials' allegedly unlawful interpretation of govern-
ing asylum law, and seeks to test the constitutional adequacy
of expedited removal procedures. As a remedy, he requests
procedures affording a conditional release, but certainly did
not so limit his prayer for relief. His constitutional and
legal challenges fall within the heartland of what St. Cyr said
the common-law writ encompassed, and Boumediene con-
frms he is entitled to additional procedures as a form of con-
ditional habeas relief. These precedents themselves resolve
this case.
* * *
The Court wrongly declares that § 1252(e)(2) can preclude
habeas review of respondent's constitutional and legal chal-
lenges to his asylum proceedings. So too the Court errs in
concluding that Congress need not provide a substitute
mechanism to supply that review. In so holding, the Court
manages to fout precedents governing habeas jurisprudence
from three separate eras. Each one shows that respondent
is entitled to judicial review of his constitutional and legal
claims. Because § 1252(e)(2) excludes his challenges from
habeas proceedings, and because the Immigration and Na-
tionality Act does not otherwise provide for meaningful judi-
cial review of the Executive's removal determination, re-
spondent has no effective means of vindicating his right to
habeas relief. Quite simply, the Constitution requires more.
III
Although the Court concludes that habeas relief is not
available because of the particular kind of release that it

190 DEP
ARTMENT OF HOMELAND SECURITY v.
THURAISSIGIAM
Sotomayor, J., dissenting
thinks respondent requests, it also suggests that respond-
ent'
s unlawful status independently prohibits him from
challenging the constitutionality of the expedited removal
proceedings. By determining that respondent, a recent
unlawful entrant who was apprehended close in time and
place to his unauthorized border crossing, has no procedural
due process rights to vindicate through his habeas challenge,
the Court unnecessarily addresses a constitutional question
in a manner contrary to the text of the Constitution and to
our precedents.
The Court stretches to reach the issue whether a nonciti-
zen like respondent is entitled to due process protections in
relation to removal proceedings, which the court below men-
tioned only in a footnote and as an aside. See ante, at 138
(quoting 917 F. 3d, at 1111, n. 15). In so doing, the Court
opines on a matter neither necessary to its holding nor seri-
ously in dispute below.
11
The Court is no more correct on the merits. To be sure,
our cases have long held that foreigners who had never come
into the United States—those “on the threshold of initial
entry”—are not entitled to any due process with respect
to their admission. Shaughnessy v. United States ex rel.
Mezei, 345 U. S. 206, 212 (1953) (citing Ekiu, 142 U. S., at
660); see also Landon v. Plasencia, 459 U. S. 21, 32 (1982).
That follows from this Courts' holdings that the political
branches of Government have “plenary” sovereign power
over regulating the admission of noncitizens to the United
States. Ante, at 139; see also Ekiu, 142 U. S., at 659.
11
While the Court contends that the writ of habeas corpus does not
allow an individual to “obtain administrative review” or additional proce-
dures, it arrives at this conclusion only in the context of discussing what
sorts of “relief ” properly qualifed as release from custody at common law.
Ante, at 107, 119–121 (contrasting request for additional remedies with a
“simple” release from custody). To the extent that this discussion neces-
sarily prohibits federal courts from entertaining habeas petitions alleging
due process violations in expedited removal proceedings, the Court's sepa-
rate discussion in Part IV is unnecessary.

Cite
as: 591 U. S. 103 (2020)
191
Sotomayor, J., dissenting
Noncitizens in this country, however, undeniably have due
process
rights. In Yick Wo v. Hopkins, 118 U. S. 356 (1886),
the Court explained that “[t]he Fourteenth Amendment to
the Constitution is not confned to the protection of citizens”
but rather applies “to all persons within the territorial juris-
diction, without regard to any differences of race, of color, or
of nationality.” Id., at 369; Zadvydas v. Davis, 533 U. S. 678,
693 (2001) (reiterating that “once an alien enters the coun-
try,” he is entitled to due process in his removal proceedings
because “the Due Process Clause applies to all `persons'
within the United States, including aliens, whether their
presence here is lawful, unlawful, temporary, or permanent”).
In its early cases, the Court speculated whether a nonciti-
zen could invoke due process protections when he entered
the country without permission or had resided here for too
brief a period to “have become, in any real sense, a part of
our population.” The Japanese Immigrant Case, 189 U. S.
86, 100 (1903); see also ante, at 138 (remarking that for those
not “ `admitted into the country pursuant to law,' ” the proce-
dures afforded by the political branches are all that are due
(quoting Ekiu, 142 U. S., at 660)). But the Court has since
determined that presence in the country is the touchstone
for at least some level of due process protections. See
Mezei, 345 U. S., at 212 (explaining that “aliens who have
once passed through our gates, even illegally,” possess con-
stitutional rights); Mathews v. Diaz, 426 U. S. 67, 77 (1976)
(“There are literally millions of aliens within the jurisdiction
of the United States. The Fifth Amendment . . . protects
every one of these persons . . . . Even one whose presence
in this country is unlawful, involuntary, or transitory is enti-
tled to that constitutional protection”). As a noncitizen
within the territory of the United States, respondent is enti-
tled to invoke the protections of the Due Process Clause.
In order to reach a contrary conclusion, the Court assumes
that those who do not enter the country legally have the
same due process rights as those who do not enter the coun-

192 DEP
ARTMENT OF HOMELAND SECURITY v.
THURAISSIGIAM
Sotomayor, J., dissenting
try at all. The Court deems that respondent possesses only
the
rights of noncitizens on the “threshold of initial entry,”
skirting binding precedent by assuming that individuals like
respondent have “ `assimilated to [the] status' ” of an arriv-
ing noncitizen for purposes of the constitutional analysis.
Mezei, 345 U. S., at 212, 214. But that relies on a legal fc-
tion. Respondent, of course, was actually within the terri-
torial limits of the United States.
More broadly, by drawing the line for due process at legal
admission rather than physical entry, the Court tethers con-
stitutional protections to a noncitizen's legal status as deter-
mined under contemporary asylum and immigration law.
But the Fifth Amendment, which of course long predated
any admissions program, does not contain limits based on
immigration status or duration in the country: It applies to
“persons” without qualifcation. Yick Wo, 118 U. S., at 369.
The Court has repeatedly affrmed as much long after Con-
gress began regulating entry to the country. Mathews, 426
U. S., at 77; Zadvydas, 533 U. S., at 693–694. The Court
lacks any textual basis to craft an exception to this rule,
let alone one hinging on dynamic immigration laws that may
be amended at any time, to redefne when an “entry” occurs.
Fundamentally, it is out of step with how this Court has con-
ceived the scope of the Due Process Clause for over a cen-
tury: Congressional policy in the immigration context does
not dictate the scope of the Constitution.
In addition to creating an atextual gap in the Constitu-
tion's coverage, the Court's rule lacks any limiting principle.
This is not because our case law does not supply one. After
all, this Court has long affrmed that noncitizens have due
process protections in proceedings to remove them from the
country once they have entered. See id., at 693–694; Mezei,
345 U. S., at 212.
Perhaps recognizing the tension between its opinion today
and those cases, the Court cabins its holding to individuals
who are “in respondent's position.” Ante, at 140. Presum-

Cite
as: 591 U. S. 103 (2020)
193
Sotomayor, J., dissenting
ably the rule applies to—and only to—individuals found
w
ithin 25 feet of the border who have entered within the
past 24 hours of their apprehension. Where its logic must
stop, however, is hard to say. Taken to its extreme, a rule
conditioning due process rights on lawful entry would permit
Congress to constitutionally eliminate all procedural protec-
tions for any noncitizen the Government deems unlawfully
admitted and summarily deport them no matter how many
decades they have lived here, how settled and integrated
they are in their communities, or how many members of their
family are U. S. citizens or residents.
This judicially fashioned line-drawing is not administrable,
threatens to create arbitrary divisions between noncitizens
in this country subject to removal proceedings, and, most
important, lacks any basis in the Constitution. Both the
Constitution and this Court's cases plainly guarantee due
process protections to all “persons” regardless of their immi-
gration status, a guarantee independent of the whims of the
political branches. This contrary proclamation by the Court
unnecessarily decides a constitutional question in a manner
contrary to governing law.
12
IV
The Cour t reaches its decisi on only by downplay i ng
the nature of respondent's claims, ignoring a plethora of
common-law immigration cases from a time of relatively open
borders, and mischaracterizing the most relevant precedents
from this Court. Perhaps to shore up this unstable founda-
12
The Court notes that noncitizens like respondent seeking legal admis-
sion lack due process rights “ `regarding [their] application.' ” Ante, at
139 (quoting Landon v. Plasencia, 459 U. S. 21, 32 (1982)). It does not,
however, explain what kinds of challenges are related to one's application
and what kinds are not. Presumably a challenge to the length or condi-
tions of confnement pending a hearing before an immigration judge falls
outside that class of cases. Because respondent only sought promised
asylum procedures, however, today's decision can extend no further than
these claims for relief.

194 DEP
ARTMENT OF HOMELAND SECURITY v.
THURAISSIGIAM
Sotomayor, J., dissenting
tion, the Court justifes its decision by pointing to perceived
vu
lnerabilities and abuses in the asylum system. I address
the Court's policy concerns briefy.
In some ways, this country's asylum laws have represented
the best of our Nati on. Unrestr icted migrati on at the
founding and later, formal asylum statutes, have served as a
beacon to the world, broadcasting the vitality of our institu-
tions and our collective potential. For many who come here
feeing religious, political, or ideological persecution, and for
many more who have preceded them, asylum has provided
both a form of shelter and a start to a better life. That is
not to say that this country's asylum policy has always, or
ever, had overwhelming support. Indeed, many times in
our past, particularly when the Nation's future has appeared
uncertain or bleak, members of this country have sought
to close our borders rather than open them. See S. Legom-
sky & C. Rodriguez, Immigration and Refugee Law and
Policy 875–876 (5th ed. 2009) (explaining that restrictionist
sentiments in the 1930s were fueled in part by the Great
Depression). Yet this country has time and again reaf-
frmed its commitment to providing sanctuary to those es-
caping oppression and persecution. Congress and the Exec-
utive have repeatedly affrmed that choice in response to
serial waves of migration from other countries by enacting
and amending asylum laws and regulations. In fact, a cen-
terpiece of respondent's claim is that offcials were not fol-
lowing these statutorily enacted procedures.
The volume of asylum claims submitted, pending, and
granted has varied over the years, due to factors like chang-
ing international migration patterns, the level of resources
devoted to processing and adjudicating asylum applications,
and amendments to governing immigration laws. See Con-
gressional Research Service, Immigration: U. S. Asylum Pol-
icy 25 (Feb. 19, 2019); see also Dept. of Homeland Security,
Offce of Immigration Statistics, 2018 Yearbook of Immigra-
tion Statistics 43 (2019) (Table 16) (“Individuals Granted

Cite
as: 591 U. S. 103 (2020)
195
Sotomayor, J., dissenting
Asylum Affrmatively or Defensively: Fiscal Years 1990 to
2018”
(quotation modifed)). For the past few years, both
new asylum applications and pending applications have
steadily increased. Immigration: U. S. Asylum Policy, at 25.
It is universally acknowledged that the asylum regime is
under strain. It is also clear that, while the reasons for the
large pending caseload are complicated,
13
delays in adjudica-
tions are undesirable for a number of reasons. At bottom,
when asylum claims are not resolved in a timely fashion, the
protracted decisionmaking harms those eligible for protec-
tion and undermines the integrity of the regime as a whole.
D. Meissner, F. Hipsman, & T. Aleinikoff, Migration Policy
Institute, The U. S. Asylum System in Crisis: Charting a
Way Forward 4 (Sept. 2018).
But the political branches have numerous tools at their
disposal to reform the asylum system, and debates over the
best methods of doing so are legion in the Government, in
the academy, and in the public sphere.
14
Congress and the
13
In 2018 Senate Judiciary Committee hearings, the Director of the Ex-
ecutive Offce of Immigration Review identifed factors contributing to the
backlog of cases, including lengthy hiring times for new immigration
judges and the continued use of paper fles. See Testimony of James
McHenry, Strengthening and Reforming America's Immigration Court
System, Hearings before the Subcommittee on Border Security and Immi-
gration of the Senate Committee on the Judiciary, 115th Cong., 2d Sess., 2
(2018). The Court, meanwhile, insinuates that much of the burden on the
asylum system can be attributed to frivolous or fraudulent asylum claims.
See, e. g., ante, at 106, 112–113, nn. 9 and 10. But the magnitude of asylum
fraud has long been debated. See S. Legomsky & C. Rodriguez, Immigra-
tion and Refugee Law and Policy 1034 (5th ed. 2009); Immigration: U. S.
Asylum Policy, at 28.
14
See, e. g., GAO, Immigration Courts: Actions Needed To Reduce Case
Backlog and Address Long-Standing Management and Operational Chal-
lenges (GAO–17–438, June 2017); Uchimiya, A Blackstone's Ratio for Asy-
lum: Fighting Fraud While Preserving Procedural Due Process for Asy-
lum Seekers, 26 Pa. St. Int'l L. Rev. 383 (2007); Martin, Reforming Asylum
Adjudication: On Navigating the Coast of Bohemia, 138 U. Pa. L. Rev.
1247 (1990).

196 DEP
ARTMENT OF HOMELAND SECURITY v.
THURAISSIGIAM
Sotomayor, J., dissenting
Executive are thus well equipped to enact a range of meas-
ures
to reform asylum in a number of ways and routinely
do so.
15
Indeed, as the Court notes, the expedited removal
process at issue here was created by law as one such measure
to ease pressures on the immigration system. Ante, at
108–109.
In the face of these policy choices, the role of the Judiciary
is minimal, yet crucial: to ensure that laws passed by Con-
gress are consistent with the limits of the Constitution. The
Court today ignores its obligation, going out of its way to
restrict the scope of the Great Writ and the reach of the
Due Process Clause. This may accommodate congressional
policy concerns by easing the burdens under which the immi-
gration system currently labors. But it is nothing short of
a self-imposed injury to the Judiciary, to the separation of
powers, and to the values embodied in the promise of the
Great Writ.
Because I disagree with the Court's interpretation of the
reach of our Constitution's protections, I respectfully dissent.
15
P. Alvarez & G. Sands, Trump Administration Proposes Sweeping
Changes to U. S. Asylum System in New Rule, CNN, June 10, 2020 (online
source archived at www.supremecourt.gov).

OCTOBER
TERM, 2019
197
Syllabus
SEILA LAW LLC v. CONSUMER FINANCIAL
PROTECTION
BUREAU
certiorari to the united states court of appeals for
the ninth circuit
No. 19–7. Argued March 3, 2020—Decided June 29, 2020
In the wake of the 2008 fnancial crisis, Congress established the Con-
sumer Financial Protection Bureau (CFPB), an independent regulatory
agency tasked with ensuring that consumer debt products are safe and
transparent. See Dodd-Frank Wall Street Reform and Consumer Pro-
tection Act (Dodd-Frank), 124 Stat. 1376. Congress transferred the ad-
ministration of 18 existing federal statutes to the CFPB, including the
Fair Credit Reporting Act, the Fair Debt Collection Practices Act,
and the Truth in Lending Act; and Congress enacted a new prohibition
on unfair and deceptive practices in the consumer-fnance sector. 12
U. S. C. § 5536(a)(1)(B). In doing so, Congress gave the CFPB exten-
sive rulemaking, enforcement, and adjudicatory powers, including the
authority to conduct investigations, issue subpoenas and civil investiga-
tive demands, initiate administrative adjudications, prosecute civil ac-
tions in federal court, and issue binding decisions in administrative pro-
ceedings. The CFPB may seek restitution, disgorgement, injunctive
relief, and signifcant civil penalties for violations of the 19 federal stat-
utes under its purview. So far, the agency has obtained over $11 billion
in relief for more than 25 million consumers.
Unlike traditional independent agencies headed by multimember
boards or commissi ons, the CFPB is led by a si ng le D irec tor,
§ 5491(b)(1), who is appointed by the President with the advice and con-
sent of the Senate, § 5491(b)(2), for a fve-year term, during which the
President may remove the Director only for “ineffciency, neglect of
duty, or malfeasance in offce,” §§ 5491(c)(1), (3). The CFPB receives
its funding outside the annual appropriations process from the Federal
Reserve, which is itself funded outside the appropriations process
through bank assessments.
In 2017, the CFPB issued a civil investigative demand to Seila Law
LLC, a California-based law frm that provides debt-related legal serv-
ices to clients. The civil investigative demand (essentially a subpoena)
sought information and documents related to the frm's business prac-
tices. Seila Law asked the CFPB to set aside the demand on the
ground that the agency's leadership by a single Director removable only
for cause violated the separation of powers. When the CFPB declined,

198 SEILA
LAW LLC v. CONSUMER FINANCIAL
PROTECTION BUREAU
Syllabus
Seila Law refused to comply with the demand, and the CFPB fled a
petiti
on to enforce the demand in District Court. Seila Law renewed
its claim that the CFPB's structure violated the separation of powers,
but the District Court disagreed and ordered Seila Law to comply with
the demand. The Ninth Circuit affrmed, concluding that Seila Law's
challenge was foreclosed by Humphrey's Executor v. United States, 295
U. S. 602, and Morrison v. Olson, 487 U. S. 654.
Held: The judgment is vacated and remanded.
923 F. 3d 680, vacated and remanded.
The Chief Justice delivered the opinion of the Court with respect
to Parts I, II, and III, concluding:
1. Appointed amicus raises three threshold arguments for why this
Court may not or should not reach the merits of petitioner's constitu-
tional challenge, but they are unavailing. Pp. 209–213.
2. The CFPB's leadership by a single individual removable only for
ineffciency, neglect, or malfeasance violates the separation of powers.
Pp. 213–232.
(a) Article II vests the entire “executive Power” in the President
alone, but the Constitution presumes that lesser executive offcers will
assist the President in discharging his duties. The President's execu-
tive power generally includes the power to supervise—and, if necessary,
remove—those who exercise the President's authority on his behalf.
The President's removal power has long been confrmed by history and
precedent. It was recognized by the First Congress in 1789, confrmed
by this Court in Myers v. United States, 272 U. S. 52, and reiterated in
Free Enterprise Fund v. Public Company Accounting Oversight Bd.,
561 U. S. 477. In Free Enterprise Fund, the Court recognized that it
had previously upheld certain congressional limits on the President's
removal power. But the Court declined to extend those limits to “a
new situation not yet encountered by the Court.” 561 U. S., at 483.
Free Enterprise Fund left in place only two exceptions to the Presi-
dent's unrestricted removal power. First, Humphrey's Executor per-
mitted Congress to give for-cause removal protection to a multimember
body of experts who were balanced along partisan lines, appointed to
staggered terms, performed only “quasi-legislative” and “quasi-judicial
functions,” and were said not to exercise any executive power. Second,
Morrison approved for-cause removal protection for an in ferior off-
cer—the independent counsel—who had limited duties and no policy-
making or administrative authority. Pp. 213–218.
(b) Neither Humphrey's Executor nor Morrison resolves whether
the CFPB Director's insulation from removal is constitutional. The
New Deal-era FTC upheld in Humphrey's Executor bears little resem-

Cite
as: 591 U. S. 197 (2020)
199
Syllabus
blance to the CFPB. Unlike the multiple Commissioners of the FTC,
who
were balanced along partisan lines and served staggered terms to
ensure the accumulation of institutional knowledge, the CFPB Director
serves a fve-year term that guarantees abrupt shifts in leadership and
the loss of agency expertise. In addition, the Director cannot be dis-
missed as a mere legislative or judicial aid. Rather, the Director pos-
sesses signifcant administrative and enforcement authority, including
the power to seek daunting monetary penalties against private parties
in federal court—a quintessentially executive power not considered in
Humphrey's Executor.
The logic of Morrison also does not apply. The independent counsel
approved in Morrison was an inferior offcer who lacked policymaking
or administrative authority and exercised narrow authority to initiate
criminal investigations and prosecutions of governmental actors identi-
fed by others. By contrast, the CFPB Director is a principal offcer
whose duties are far from limited. The Director promulgates binding
rules feshing out 19 consumer-protection statutes that cover everything
from credit cards and car payments to mortgages and student loans.
And the Director brings the coercive power of the state to bear on
millions of private citizens and businesses, imposing potentially billion-
dollar penalties through administrative adjudications and civil actions.
The question here is therefore whether to extend the Humphrey's
Executor and Morrison exceptions to a “new situation.” Free Enter-
prise Fund, 561 U. S., at 433. Pp. 218–220.
(c) The Court declines to extend these precedents to an independ-
ent agency led by a single Director and vested with signifcant executive
power. Pp. 220–232.
(1) The CFPB's structure has no foothold in history or tradition.
Congress has provided removal protection to principal offcers who
alone wield power in only four isolated instances: the Comptroller of the
Currency (for a one-year period during the Civil War); the Offce of
Special Counsel; the Administrator of the Social Security Administra-
tion; and the Director of the Federal Housing Finance Agency. Aside
from the one-year blip for the Comptroller of the Currency, these exam-
ples are modern and contested; and they do not involve regulatory
or enforcement authority comparable to that exercised by the CFPB.
Pp. 220–222.
(2) The CFPB's single-Director confguration is also incompatible
with the structure of the Constitution, which—with the sole exception
of the Presidency—scrupulously avoids concentrating power in the
hands of any single individual. The Framers' constitutional strategy is
straightforward: divide power everywhere except for the Presidency,
and render the President directly accountable to the people through

200 SEILA
LAW LLC v. CONSUMER FINANCIAL
PROTECTION BUREAU
Syllabus
regular elections. In that scheme, individual executive offcials may
w
ield signifcant authority, but that authority remains subject to the
ongoing supervision and control of the elected President. The CFPB's
single-Director structure contravenes this carefully calibrated system
by vesting signifcant governmental power in the hands of a single indi-
vidual who is neither elected by the people nor meaningfully controlled
(through the threat of removal) by someone who is. The Director may
unilaterally, without meaningful supervision, issue fnal regulations,
oversee adjudications, set enforcement priorities, initiate prosecutions,
and determine what penalties to impose on private parties. And the
Director may do so without even having to rely on Congress for appro-
priations. While the CFPB's independent, single-Director structure is
suffcient to render the agency unconstitutional, the Director's fve-year
term and receipt of funds outside the appropriations process heighten
the concern that the agency will “slip from the Executive's control, and
thus from that of the people.” Free Enterprise Fund, 561 U. S., at 499.
Pp. 222–226.
(3) Amicus raises three principal arguments in the agency's de-
fense. First, amicus challenges the textual basis for the President's
removal power and highlights statements from individual Framers ex-
pressing divergent views on the subject. This Court's precedents, how-
ever, make clear that the President's removal power derives from the
“executive Power” vested exclusively in the President by Article II.
And this Court has already discounted the founding-era statements
cited by amicus in light of their context. Second, amicus claims that
Humphrey's Executor and Morrison establish a general rule that Con-
gress may freely constrain the President's removal power, with only two
limited exceptions not applicable here. But text, frst principles, the
First Congress's decision in 1789, Myers, and Free Enterprise Fund all
establish that the President's removal power is the rule, not the excep-
tion. Finally, amicus submits that this Court can cure any constitu-
tional defect in the CFPB's structure by interpreting the language
“ineffciency, neglect of duty, or malfeasance in offce,” 12 U. S. C.
§ 5491(c)(3), to reserve substantial discretion to the President. But
Humphrey's Executor implicitly rejected this position, and the CFPB's
defenders have not advanced any workable standard derived from the
statutory text. Nor have they explained how a lenient removal stand-
ard can be squared with the Dodd-Frank Act as a whole, which makes
plain that the CFPB is an “independent bureau.” § 5491(a).
The dissent advances several additional arguments in the agency's
defense, but they have already been expressly considered and rejected
by the Court in Free Enterprise Fund. Pp. 226–232.

Cite
as: 591 U. S. 197 (2020)
201
Syllabus
The Chief Justice, joined by Justice Alito and Justice Kav-
ana
ugh, concluded in Part IV that the Director's removal protection is
severable from the other provisions of the Dodd-Frank Act that estab-
lish the CFPB and defne its authority. Pp. 232–238.
Roberts, C. J., delivered the opinion of the Court with respect to Parts
I, II, and III, in which Thomas, Alito, Gorsuch, and Kavanaugh, JJ.,
joined, and an opinion with respect to Part IV, in which Alito and Kav-
anaugh, JJ., joined. Thomas, J., fled an opinion concurring in part and
dissenting in part, in which Gorsuch, J., joined, post, p. 238. Kagan, J.,
fled an opinion concurring in the judgment with respect to severability
and dissenting in part, in which Ginsburg, Breyer, and Sotomayor, JJ.,
joined, post, p. 261.
Kannon K. Shanmugam argued the cause for petitioner.
With him on the briefs were Masha G. Hansford, William
T. Marks, Joel S. Johnson, and Anthony Bisconti.
Solicitor General Francisco argued the cause for respond-
ent urging vacatur. With him on the briefs were Assistant
Attorney General Hunt, Deputy Solicitor General Wall, Dep-
uty Assistant Attorney General Mooppan, Jonathan Y. Ellis,
Mark B. Stern, Daniel Aguilar, and Steven Y. Bressler.
Paul D. Clement, by invitation of the Court, 589 U. S. 1041,
argued the cause as amicus curiae in support of the judg-
ment below. With him on the brief were Erin E. Murphy,
Matthew D. Rowen, and Andrew C. Lawrence.
Douglas N. Letter argued the cause for the United States
House of Representatives as amicus curiae urging affrm-
ance. With him on the brief were Megan Barbero, Adam A.
Grogg, Brian H. Fletcher, and Pamela S. Karlan.*
*Briefs of amici curiae urging reversal were fled for the State of Texas
et al. by Ken Paxton, Attorney General of Texas, Kyle D. Hawkins, Solici-
tor General, Jeffrey C. Mateer, First Assistant Attorney General, and La-
nora C. Pettit, Assistant Solicitor General, and by the Attorneys General
for their respective States as follows: Steve Marshall of Alabama, Leslie
Rutledge of Arkansas, Christopher M. Carr of Georgia, Curtis T. Hill,
Jr., of Indiana, Derek Schmidt of Kansas, Jeff Landry of Louisiana, Doug
Peterson of Nebraska, Mike Hunter of Oklahoma, Alan Wilson of South

202 SEILA
LAW LLC v. CONSUMER FINANCIAL
PROTECTION BUREAU
Opinion of Roberts, C. J.
Chief Justice Roberts delivered the opinion of the
Cour
t with respect to Parts I, II, and III.
In the wake of the 2008 fnancial crisis, Congress estab-
lished the Consumer Financial Protection Bureau (CFPB),
an independent regulatory agency tasked with ensuring that
Carolina, Jason R. Ravnsborg of South Dakota, Sean Reyes of Utah, and
Patrick Morrisey of West Virginia; for the Buckeye Institute by William
S. Consovoy, Thomas R. McCarthy, and Robert Alt; for the Cato Institute
et al. by Ilya Shapiro and Michael E. Rosman; for the Center for Consti-
tutional Jurisprudence by John C. Eastman and Anthony T. Caso; for the
Center for the Rule of Law by Theodore B. Olson, Helgi C. Walker, Loch-
lan F. Shel fer, and Jeremy M. Christiansen; for the Chamber of Com-
merce of the United States of America by Andrew J. Pincus and Stephen
C. N. Lilley; for the Credit Union National Association, Inc., by Julian R.
Ellis, Jr.; for Harpeth Financial Services, LLC, by Andrew M. Grossman;
for the Landmark Legal Foundation by Matthew C. Forys, Michael J.
O'Neill, and Richard P. Hutchison; for Nationwide Biweekly Administra-
tion, Inc., et al. by Amanda R. Parker; for the New Civil Liberties Alli-
ance by Jonathan F. Mitchell and Harriet M. Hageman; for the Pacifc
Legal Foundation by Oliver J. Dun ford, Glenn E. Roper, and Steve Simp-
son; for RD Legal Funding Partners, LP, et al. by Albert Giang, David
K. Willingham, and Michael D. Roth; for Separation of Powers Scholars
by Ilan Wurman; for the Southeastern Legal Foundation et al. by Scott
A. Keller, Kimberly S. Hermann, Karen R. Harned, and Luke A. Wake;
for the State National Bank of Big Spring et al. by Gregory Jacob, C.
Boyden Gray, Adam R. F. Gustafson, and Sam Kazman; for Twenty-
seven Members of the U. S. House of Representatives by Michael A. Carvin,
Paul Lettow, and Anthony J. Dick; for the Washington Legal Foundation by
Corbin K. Barthold and Cory L. Andrews; for Patrick J. Collins et al. by
Charles J. Cooper, David H. Thompson, and Peter A. Patterson; and for Sen.
Mike Lee et al. by Gene C. Schaerr, Erik S. Jaffe, and Kathryn E. Tarbert.
Briefs of amici curiae urging affrmance were fled for the State of New
York et al. by Letitia James, Attorney General of New York, Barbara D.
Underwood, Solicitor General, Steven C. Wu, Deputy Solicitor General,
and Caroline A. Olsen, Assistant Solicitor General, and by the Attorneys
General for their respective jurisdictions as follows: Xavier Becerra of
California, Phil Weiser of Colorado, William Tong of Connecticut, Kath-
leen Jennings of Delaware, Karl A. Racine of the District of Columbia,
Clare E. Connors of Hawaii, Kwame Raoul of Illinois, 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

Cite
as: 591 U. S. 197 (2020)
203
Opinion of Roberts, C. J.
consumer debt products are safe and transparent. In organ-
i
zing the CFPB, Congress deviated from the structure of
nearly every other independent administrative agency in our
history. Instead of placing the agency under the leadership
of a board with multiple members, Congress provided that
the CFPB would be led by a single Director, who serves for
a longer term than the President and cannot be removed by
the President except for ineffciency, neglect, or malfeasance.
The CFPB Director has no boss, peers, or voters to report
to. Yet the Director wields vast rulemaking, enforcement,
and adjudicatory authority over a signifcant portion of the
U. S. economy. The question before us is whether this ar-
rangement violates the Constitution's separation of powers.
Under our Constitution, the “executive Power”—all of it—
is “vested in a President,” who must “take Care that the
Laws be faithfully executed.” Art. II, § 1, cl. 1; id., § 3. Be-
Nevada, Gurbir S. Grewal of New Jersey, Hector H. Balderas of New
Mexico, Josh Stein of North Carolina, Ellen F. Rosenblum of Oregon, Josh
Shapiro of Pennsylvania, Peter F. Neronha of Rhode Island, Thomas J.
Donovan, Jr., of Vermont, Mark R. Herring of Virginia, Robert Ferguson
of Washington, and Josh Kaul of Wisconsin; for Current and Former Mem-
bers of Congress by Elizabeth B. Wydra, Brianne J. Gorod, and Brian R.
Frazelle; for Financial Regulation Scholars by Deepak Gupta and Adam
J. Levitin, pro se; for the Main Street Alliance by Steven E. Fineman,
Jason L. Lichtman, and Andrew R. Kaufman; for the National Consumer
Law Center et al. by Stuart T. Rossman, J. L. Pottenger, Jr., Jeffrey Gen-
tes, Seth E. Mermin, Jonathan R. Marshall, and Patricia M. Kipnis; for
the Project on Government Oversight et al. by J. Carl Cecere; for Public
Citizen et al. by Scott L. Nelson and Allison M. Zieve; for Self-Help Credit
Union et al. by Daniel S. Sommers; for Rachel E. Barkow et al. by Rich-
ard L. Revesz; for Harold H. Bruff et al. by Latif M. Nurani, Jeffrey M.
Bayne, Gillian E. Metzger, and Peter M. Shane; for John Harrison by Mr.
Harrison, pro se; for Martin S. Lederman et al. by Mr. Lederman and
David C. Vladeck, both pro se; and for Sen. Sheldon Whitehouse et al. by
Stephen D. Susman and Amanda Bonn.
Briefs of amici curiae were fled for the Consumer Bankers Association
by Jonathan S. Franklin and Peter B. Siegal; for the Mortgage Bankers
Association et al. by Benjamin B. Klubes, Michelle L. Rogers, and Eliza-
beth R. Bailey; and for Alan B. Morrison by Mr. Morrison, pro se.

204 SEILA
LAW LLC v. CONSUMER FINANCIAL
PROTECTION BUREAU
Opinion of Roberts, C. J.
cause no single person could fulfll that responsibility alone,
the
Framers expected that the President would rely on sub-
ordinate offcers for assistance. Ten years ago, in Free En-
terprise Fund v. Public Company Accounting Oversight
Bd., 561 U. S. 477 (2010), we reiterated that, “as a general
matter,” the Constitution gives the President “the authority
to remove those who assist him in carrying out his duties,”
id., at 513–514. “Without such power, the President could
not be held fully accountable for discharging his own respon-
sibilities; the buck would stop somewhere else.” Id., at 514.
The President's power to remove—and thus supervise—
those who wield executive power on his behalf follows from
the text of Article II, was settled by the First Congress,
and was confrmed in the landmark decision Myers v. United
States, 272 U. S. 52 (1926). Our precedents have recognized
only two exceptions to the President's unrestricted removal
power. In Humphrey's Executor v. United States, 295 U. S.
602 (1935), we held that Congress could create expert agen-
cies led by a group of principal offcers removable by the
President only for good cause. And in United States v. Per-
kins, 116 U. S. 483 (1886), and Morrison v. Olson, 487 U. S.
654 (1988), we held that Congress could provide tenure pro-
tections to certain inferior offcers with narrowly defned
duties.
We are now asked to extend these precedents to a new
confguration: an independent agency that wields signifcant
executive power and is run by a single individual who cannot
be removed by the President unless certain statutory crite-
ria are met. We decline to take that step. While we need
not and do not revisit our prior decisions allowing certain
limitations on the President's removal power, there are com-
pelling reasons not to extend those precedents to the novel
context of an independent agency led by a single Director.
Such an agency lacks a foundation in historical practice and
clashes with constitutional structure by concentrating power
in a unilateral actor insulated from Presidential control.

Cite
as: 591 U. S. 197 (2020)
205
Opinion of the Court
We therefore hold that the structure of the CFPB violates
the
separation of powers. We go on to hold that the CFPB
Director's removal protection is severable from the other
statutory provisions bearing on the CFPB's authority. The
agency may therefore continue to operate, but its Director,
in light of our decision, must be removable by the President
at will.
I
A
In the summer of 2007, then-Professor Elizabeth Warren
called for the creation of a new, independent federal agency
focused on regulating consumer fnancial products. Warren,
Unsafe at Any Rate, Democracy (Summer 2007). Professor
Warren believed the fnancial products marketed to ordinary
American households—credit cards, student loans, mort-
gages, and the like—had grown increasingly unsafe due to a
“regulatory jumble” that paid too much attention to banks
and too little to consumers. Ibid. To remedy the lack of
“coherent, consumer-oriented” fnancial regulation, she pro-
posed “concentrat[ing] the review of fnancial products in a
single location”—an independent agency modeled after the
multimember Consumer Product Safety Commission. Ibid.
That proposal soon met its moment. Within months of
Professor Warren's writing, the subprime mortgage market
collapsed, precipitating a fnancial crisis that wiped out over
$10 trillion in American household wealth and cost millions
of Americans their jobs, their retirements, and their homes.
In the aftermath, the Obama administration embraced Pro-
fessor Warren's recommendation. Through the Treasury
Department, the administration encouraged Congress to es-
tablish an agency with a mandate to ensure that “consumer
protection regulations” in the fnancial sector “are written
fairly and enforced vigorously.” Dept. of Treasury, Finan-
cial Regulatory Reform: A New Foundation 55 (2009). Like
Professor Warren, the administration envisioned a tradi-

206 SEILA
LAW LLC v. CONSUMER FINANCIAL
PROTECTION BUREAU
Opinion of the Court
tional independent agency, run by a multimember board with
a
“diverse set of viewpoints and experiences.” Id., at 58.
In 2010, Congress acted on these proposals and created
the Consumer Financial Protection Bureau (CFPB) as an in-
dependent fnancial regulator within the Federal Reserve
System. Dodd-Frank Wall Street Reform and Consumer
Protection Act (Dodd-Frank), 124 Stat. 1376. Congress
tasked the CFPB with “implement[ing]” and “enforc[ing]” a
large body of fnancial consumer protection laws to “ensur[e]
that all consumers have access to markets for consumer f-
nancial products and services and that markets for consumer
fnancial products and services are fair, transparent, and
competitive.” 12 U. S. C. § 5511(a). Congress transferred
the administration of 18 existing federal statutes to the
CFPB, including the Fair Credit Reporting Act, the Fair
Debt Collection Practices Act, and the Truth in Lending Act.
See §§ 5512(a), 5481(12), (14). In addition, Congress enacted
a new prohibition on “any unfair, deceptive, or abusive act
or practice” by certain participants in the consumer-fnance
sector. § 5536(a)(1)(B). Congress authorized the CFPB to
implement that broad standard (and the 18 pre-existing stat-
utes placed under the agency's purview) through binding
regulations. §§ 5531(a)–(b), 5581(a)(1)(A), (b).
Congress also vested the CFPB with potent enforcement
powers. The agency has the authority to conduct investiga-
tions, issue subpoenas and civil investigative demands, initi-
ate administrative adjudications, and prosecute civil actions
in federal court. §§ 5562, 5564(a), (f ). To remedy violations
of federal consumer fnancial law, the CFPB may seek resti-
tution, disgorgement, and injunctive relief, as well as civil
penalties of up to $1 million (infation adjusted) for each day
that a violation occurs. §§ 5565(a), (c)(2); 12 CFR § 1083.1(a),
Table (2019). Since its inception, the CFPB has obtained
over $11 billion in relief for over 25 million consumers, in-
cluding a $1 billion penalty against a single bank in 2018.
See CFPB, Financial Report of the Consumer Financial Pro-

Cite
as: 591 U. S. 197 (2020)
207
Opinion of the Court
tection Bureau, Fiscal Year 2015, p. 3; CFPB, Bureau of
Consumer
Financial Protection Announces Settlement With
Wells Fargo for Auto-Loan Administration and Mortgage
Practices (Apr. 20, 2018).
The CFPB's rulemaking and enforcement powers are cou-
pled with extensive adjudicatory authority. The agency
may conduct administrative proceedings to “ensure or en-
force compliance with” the statutes and regulations it admin-
isters. 12 U. S. C. § 5563(a). When the CFPB acts as an
adjudicator, it has “jurisdiction to grant any appropriate
legal or equitable relief.” § 5565(a)(1). The “hearing off-
cer” who presides over the proceedings may issue subpoenas,
order depositions, and resolve any motions fled by the par-
ties. 12 CFR § 1081.104(b). At the close of the proceed-
ings, the hearing offcer issues a “recommended decision,”
and the CFPB Director considers that recommendati on
and “issue[s] a fnal decision and order.” §§ 1081.400(d),
1081.402(b); see also § 1081.405.
Congress's design for the CFPB differed from the propos-
als of Professor Warren and the Obama administration in one
critical respect. Rather than create a traditional independ-
ent agency headed by a multimember board or commission,
Congress elected to place the CFPB under the leadership of
a single Director. 12 U. S. C. § 5491(b)(1). The CFPB Di-
rector is appointed by the President with the advice and con-
sent of the Senate. § 5491(b)(2). The Director serves for a
term of fve years, during which the President may remove
the Director from offce only for “ineffciency, neglect of duty,
or malfeasance in offce.” §§ 5491(c)(1), (3).
Unlike most other agencies, the CFPB does not rely on
the annual appropriations process for funding. Instead, the
CFPB receives funding directly from the Federal Reserve,
which is itself funded outside the appropriations process
through bank assessments. Each year, the CFPB requests
an amount that the Director deems “reasonably necessary
to carry out” the agency's duties, and the Federal Reserve

208 SEILA
LAW LLC v. CONSUMER FINANCIAL
PROTECTION BUREAU
Opinion of the Court
grants that request so long as it does not exceed 12% of the
tot
al operating expenses of the Federal Reserve (infation
adjusted). §§ 5497(a)(1), (2)(A)(iii), (2)(B). In recent years,
the CFPB's annual budget has exceeded half a billion dollars.
See CFPB, Fiscal Year 2019: Ann. Performance Plan and
Rep., p. 7.
B
Seila Law LLC is a California-based law frm that pro-
vides debt-related legal services to clients. In 2017, the
CFPB issued a civil investigative demand to Seila Law to
determine whether the frm had “engag[ed] in unlawful acts
or practices in the advertising, marketing, or sale of debt
relief services.” 2017 WL 6536586, *1 (CD Cal., Aug. 25,
2017). See also 12 U. S. C. § 5562(c)(1) (author izing the
agency to issue such demands to persons who “may have
any information[ ] relevant to a violation” of one of the laws
enforced by the CFPB). The demand (essentially a sub-
poena) directed Seila Law to produce information and docu-
ments related to its business practices.
Seila Law asked the CFPB to set aside the demand,
objecting that the agency's leadership by a single Director
removable only for cause violated the separation of powers.
The CFPB declined to address that claim and directed Seila
Law to comply with the demand.
When Seila Law refused, the CFPB fled a petition to en-
force the demand in the District Court. See § 5562(e)(1)
(creating cause of action for that purpose). In response,
Seila Law renewed its defense that the demand was invalid
and must be set aside because the CFPB's structure violated
the Constitution. The District Court disagreed and ordered
Seila Law to comply with the demand (with one modifcation
not relevant here).
The Court of Appeals affrmed. 923 F. 3d 680 (CA9 2019).
The Court observed that the “arguments for and against” the
constitutionality of the CFPB's structure had already been
“thoroughly canvassed” in majority, concurring, and dissent-
ing opinions by the en banc Court of Appeals for the District

Cite
as: 591 U. S. 197 (2020)
209
Opinion of the Court
of Columbia Circuit in PHH Corp. v. CFPB, 881 F. 3d 75
(2018),
which had rejected a challenge similar to the one pre-
sented here. 923 F. 3d, at 682. The Court saw “no need to
re-plow the same ground.” Ibid. Instead, it provided a
brief explanation for why it agreed with the PHH Court's
core holding. The Court took as its starting point Hum-
phrey's Executor, which had approved for-cause removal
protection for the Commissioners of the Federal Trade Com-
mission (FTC). In applying that precedent, the Court rec-
ognized that the CFPB wields “substantially more executive
power than the FTC did back in 1935” and that the CFPB's
leadership by a single Director (as opposed to a multimem-
ber commission) presented a “structural difference” that
some jurists had found “dispositive.” 923 F. 3d, at 683–684.
But the Court felt bound to disregard those differences in
light of our decision in Morrison, which permitted a single
individual (an independent counsel) to exercise a core execu-
tive power (prosecuting criminal offenses) despite being in-
sulated from removal except for cause. Because the Court
found Humphrey's Executor and Morrison “controlling,” it
affrmed the District Court's order requiring compliance
with the demand. 923 F. 3d, at 684.
We granted certiorari to address the constitutionality of
the CFPB's structure. 589 U. S. 1031 (2019). We also re-
quested argument on an additional question: whether, if the
CFPB's structure violates the separation of powers, the
CFPB Director's removal protection can be severed from the
rest of the Dodd-Frank Act.
Because the Government agrees with petitioner on the
merits of the constitutional question, we appointed Paul
Clement to defend the judgment below as amicus curiae.
He has ably discharged his responsibilities.
II
We frst consider three threshold arguments raised by the
appointed amicus for why we may not or should not reach
the merits. Each is unavailing.

210 SEILA
LAW LLC v. CONSUMER FINANCIAL
PROTECTION BUREAU
Opinion of the Court
First, amicus argues that the demand issued to petitioner
is
not “traceable” to the alleged constitutional defect because
two of the three Directors who have in turn played a role in
enforcing the demand were (or now consider themselves to
be) removable by the President at will. Brief for Court-
Appointed Amicus Curiae 21–24. Amicus highlights the
Government's argument below that the demand, originally
issued by former Director Richard Cordray, had been ratifed
by an acting CFPB Director who, according to the Offce of
Legal Counsel (OLC), was removable by the President at
will. See Brief for Appellee in No. 17–56324 (CA9), pp. 1, 10,
13–19 (citing Designating an Acting Director of the Bureau
of Consumer Financial Protection, 41 Op. OLC 99, 109
(2017)). Amicus further observes that current CFPB Di-
rector Kathleen Kraninger, now responsible for enforcing the
demand, agrees with the Solicitor General's position in this
case that her for-cause removal protection is unconstitu-
tional. See Brief for Respondent on Pet. for Cert. 20; Letter
from K. Kraninger, CFPB Director, to M. McConnell, Major-
ity Leader, U. S. Senate, p. 2 (Sept. 17, 2019); Letter from K.
Kraninger, CFPB Director, to N. Pelosi, Speaker, U. S.
House of Representatives, p. 2 (Sept. 17, 2019).
1
In amicus'
view, these developments reveal that the demand would have
been issued—and would continue to be enforced—even in the
absence of the CFPB Director's removal protection, making
the asserted separation of powers dispute “artifcial.” Brief
for Court-Appointed Amicus Curiae 22.
Even if that were true, it would not deprive us of jurisdic-
tion. Amicus' traceability argument appears to challenge
petitioner's Article III standing. See Lujan v. Defenders of
Wildlife, 504 U. S. 555, 560 (1992) (explaining that the plain-
tiff 's injury must be “fairly traceable to the challenged action
of the defendant” (internal quotation marks and alterations
1
Director Kraninger did not indicate whether she would disregard her
statutory removal protection if the President attempted to remove her
without cause.

Cite
as: 591 U. S. 197 (2020)
211
Opinion of the Court
omitted)). But amicus' argument does not cast any doubt
on
the jurisdiction of the District Court because petitioner
is the defendant and did not invoke the Court's jurisdiction.
See Bond v. United States, 564 U. S. 211, 217 (2011) (When
the plaintiff has standing, “Article III does not restrict the
opposing party's ability to object to relief being sought at
its expense.”).
It is true that “standing must be met by persons seeking
appellate review, just as it must be met by persons appearing
in courts of frst instance.” Hollingsworth v. Perry, 570
U. S. 693, 705 (2013) (internal quotation marks omitted).
But petitioner's appellate standing is beyond dispute. Peti-
tioner is compelled to comply with the civil investigative de-
mand and to provide documents it would prefer to withhold,
a concrete injury. That injury is traceable to the decision
below and would be fully redressed if we were to reverse
the judgment of the Court of Appeals and remand with in-
structions to deny the Government's petition to enforce the
demand.
Without engaging with these principles, amicus contends
that a litigant wishing to challenge an executive act on the
basis of the President's removal power must show that the
challenged act would not have been taken if the responsible
offcial had been subject to the President's control. See
Brief for Court-Appointed Amicus Curiae 21–24. Our prec-
edents say otherwise. We have held that a litigant chal-
lenging governmental action as void on the basis of the
separation of powers is not required to prove that the
Government's course of conduct would have been different
in a “counterfactual world” in which the Government had
acted with constitutional authority. Free Enterprise Fund,
561 U. S., at 512, n. 12. In the specifc context of the Presi-
dent's removal power, we have found it suffcient that the
challenger “sustain[s] injury” from an executive act that al-
legedly exceeds the offcial's authority. Bowsher v. Synar,
478 U. S. 714, 721 (1986).

212 SEILA
LAW LLC v. CONSUMER FINANCIAL
PROTECTION BUREAU
Opinion of the Court
Second, amicus contends that the proper context for as-
sessi
ng the constitutionality of an offcer's removal restric-
tion is a contested removal. See Brief for Court-Appointed
Amicus Curiae 24–27. While that is certainly one way to
review a removal restriction, it is not the only way. Our
precedents have long permitted private parties aggrieved by
an offcial's exercise of executive power to challenge the off-
cial's authority to wield that power while insulated from re-
moval by the President. See Bowsher, 478 U. S., at 721
(lawsuit fled by aggrieved third party in the absence of con-
tested removal); Free Enterprise Fund, 561 U. S., at 487
(same); Morrison, 487 U. S., at 668–669 (defense to subpoena
asserted by third party in the absence of contested removal).
Indeed, we have expressly “reject[ed]” the “argument that
consideration of the effect of a removal provision is not `ripe'
until that provision is actually used,” because when such a
provision violates the separation of powers it inficts a “here-
and-now” injury on affected third parties that can be reme-
died by a court. Bowsher, 478 U. S., at 727, n. 5 (internal
quotation marks omitted). The Court of Appeals therefore
correctly entertained petitioner's constitutional defense on
the merits.
Lastly, amicus contends that we should dismiss the case
because the parties agree on the merits of the constitutional
question and the case therefore lacks “adverseness.” Tr. of
Oral Arg. 42–43, 45–46. That contention, however, is fore-
closed by United States v. Windsor, 570 U. S. 744 (2013).
There, we explained that a lower court order that presents
real-world consequences for the Government and its adver-
sary suffces to support Article III jurisdiction—even if “the
Executive may welcome” an adverse order that “is accom-
panied by the constitutional ruling it wants.” Id., at 758.
Here, petiti oner and the Gover nment disagree about
whether petitioner must comply with the civil investigative
demand. The lower courts sided with the Government, and
the Government has not volunteered to relinquish that vic-

Cite
as: 591 U. S. 197 (2020)
213
Opinion of the Court
tory and withdraw the demand. To the contrary, while the
Gover
nment agrees that the agency is unconstitutionally
structured, it believes it may nevertheless enforce the de-
mand on remand. See infra, at 232. Accordingly, our “de-
cision will have real meaning ” for the parties. INS v.
Chadha, 462 U. S. 919, 939 (1983). And, as in Windsor, any
prudential concerns with deciding an important legal ques-
tion in this posture can be addressed by “the practice of en-
tertaining arguments made by an amicus when the Solicitor
General confesses error with respect to a judgment below,”
which we have done. 570 U. S., at 760.
We therefore turn to the merits of petitioner's constitu-
tional challenge.
III
We hold that the CFPB's leadership by a single individual
removable only for ineffciency, neglect, or malfeasance vio-
lates the separation of powers.
A
Article II provides that “[t]he executive Power shall be
vested in a President,” who must “take Care that the Laws
be faithfully executed.” Art. II, § 1, cl. 1; id., § 3. The en-
tire “executive Power” belongs to the President alone. But
because it would be “impossib[le]” for “one man” to “perform
all the great business of the State,” the Constitution assumes
that lesser executive offcers will “assist the supreme Magis-
trate in discharging the duties of his trust.” 30 Writings of
George Washington 334 (J. Fitzpatrick ed. 1939).
These lesser offcers must remain accountable to the Presi-
dent, whose authority they wield. As Madison explained,
“[I]f any power whatsoever is in its nature Executive, it is
the power of appointing, overseeing, and controlling those
who execute the laws.” 1 Annals of Cong. 463 (1789). That
power, in turn, generally includes the ability to remove exec-
utive offcials, for it is “only the authority that can remove”
such offcials that they “must fear and, in the performance of

214 SEILA
LAW LLC v. CONSUMER FINANCIAL
PROTECTION BUREAU
Opinion of the Court
[their] functions, obey.” Bowsher, 478 U. S., at 726 (internal
quot
ation marks omitted).
The President's removal power has long been confrmed
by history and precedent. It “was discussed extensively in
Congress when the frst executive departments were cre-
ated” in 1789. Free Enterprise Fund, 561 U. S., at 492.
“The view that `prevailed, as most consonant to the text of
the Constitution' and `to the requisite responsibility and har-
mony in the Executive Department,' was that the executive
power included a power to oversee executive offcers through
removal.” Ibid. (quoting Letter from James Madison to
Thomas Jefferson (June 30, 1789), 16 Documentary History
of the First Federal Congress 893 (2004)). The First Con-
gress's recognition of the President's removal power in 1789
“provides contemporaneous and weighty evidence of the
Constitution's meaning,” Bowsher, 478 U. S., at 723 (internal
quotation marks omitted), and has long been the “settled and
well understood construction of the Constitution,” Ex parte
Hennen, 13 Pet. 230, 259 (1839).
The Court recognized the President's prerogative to re-
move executive offcials in Myers v. United States, 272 U. S.
52. Chief Justice Taft, writing for the Court, conducted an
exhaustive examination of the First Congress's determina-
tion in 1789, the views of the Framers and their contempo-
raries, historical practice, and our precedents up until that
point. He concluded that Article II “grants to the Presi-
dent” the “general administrative control of those executing
the laws, including the power of appointment and removal
of executive offcers.” Id., at 163–164 (emphasis added).
Just as the President's “selection of administrative offcers is
essential to the execution of the laws by him, so must be his
power of removing those for whom he can not continue to be
responsible.” Id., at 117. “[T]o hold otherwise,” the Court
reasoned, “would make it impossible for the President . . . to
take care that the laws be faithfully executed.” Id., at 164.

Cite
as: 591 U. S. 197 (2020)
215
Opinion of the Court
We recently reiterated the President's general removal
power
in Free Enterprise Fund. “Since 1789,” we re-
capped, “the Constitution has been understood to empower
the President to keep these offcers accountable—by remov-
ing them from offce, if necessary.” 561 U. S., at 483. Al-
though we had previously sustained congressional limits on
that power in certain circumstances, we declined to extend
those limits to “a new situation not yet encountered by the
Court”—an offcial insulated by two layers of for-cause re-
moval protection. Id., at 483, 514. In the face of that novel
impediment to the President's oversight of the Executive
Branch, we adhered to the general rule that the President
possesses “the authority to remove those who assist him in
carrying out his duties.” Id., at 513–514.
Free Enterprise Fund left in place two exceptions to the
President's unrestricted removal power. First, in Hum-
phrey's Executor, decided less than a decade after Myers,
the Court upheld a statute that protected the Commissioners
of the FTC from removal except for “ineffciency, neglect
of duty, or malfeasance in offce.” 295 U. S., at 620 (quoting
15 U. S. C. § 41). In reaching that conclusion, the Court
stressed that Congress's ability to impose such removal re-
strictions “will depend upon the character of the offce.”
295 U. S., at 631.
Because the Court limited its holding “to offcers of the
kind here under consideration,” id., at 632, the contours of
the Humphrey's Executor exception depend upon the char-
acteristics of the agency before the Court. Rightly or
wrongly, the Court viewed the FTC (as it existed in 1935)
as exercising “no part of the executive power.” Id., at 628.
Instead, it was “an administrative body” that performed
“specifed duties as a legislative or as a judicial aid.” Ibid.
It acted “as a legislative agency” in “making investigations
and reports” to Congress and “as an agency of the judiciary”
in making recommendations to courts as a master in chan-

216 SEILA
LAW LLC v. CONSUMER FINANCIAL
PROTECTION BUREAU
Opinion of the Court
cery. Ibid. “To the extent that [the FTC] exercise[d] any
executive
function[,] as distinguished from executive power
in the constitutional sense,” it did so only in the discharge of
its “quasi-legislative or quasi-judicial powers.” Ibid. (em-
phasis added).
2
The Court identifed several organizational features that
helped explain its characterization of the FTC as non-
executive. Composed of fve members—no more than three
from the same political party—the Commission was designed
to be “non-partisan” and to “act with entire impartiality.”
Id., at 624; see id., at 619–620. The FTC's duties were “nei-
ther political nor executive,” but instead called for “the
trained judgment of a body of experts” “informed by experi-
ence.” Id., at 624 (internal quotation marks omitted). And
the Commissioners' staggered, seven-year terms enabled the
agency to accumulate technical expertise and avoid a “com-
plete change” in leadership “at any one time.” Ibid.
In short, Humphrey's Executor permitted Congress to
give for-cause removal protections to a multimember body
of experts, balanced along partisan lines, that performed leg-
islative and judicial functions and was said not to exercise
any executive power. Consistent with that understanding,
the Court later applied “[t]he philosophy of Humphrey's
Executor” to uphold for-cause removal protections for the
members of the War Claims Commission—a three-member
“adjudicatory body” tasked with resolving claims for com-
pensation arising from World War II. Wiener v. United
States, 357 U. S. 349, 356 (1958).
2
The Court's conclusion that the FTC did not exercise executive power
has not withstood the test of time. As we observed in Morrison v. Olson,
487 U. S. 654 (1988), “[I]t is hard to dispute that the powers of the FTC at
the time of Humphrey's Executor would at the present time be considered
`executive,' at least to some degree.” Id., at 690, n. 28. See also Arling-
ton v. FCC, 569 U. S. 290, 305, n. 4 (2013) (even though the activities of
administrative agencies “take `legislative' and `judicial' forms,” “they are
exercises of—indeed, under our constitutional structure they must be ex-
ercises of—the `executive Power' ” (quoting Art. II, § 1, cl. 1)).

Cite
as: 591 U. S. 197 (2020)
217
Opinion of the Court
While recognizing an exception for multimember bodies
w
ith “quasi-judicial” or “quasi-legislative” functions, Hum-
phrey's Executor reaffrmed the core holding of Myers that
the President has “unrestrictable power . . . to remove purely
executive offcers.” 295 U. S., at 632. The Court acknowl-
edged that between purely executive offcers on the one
hand, and offcers that closely resembled the FTC Commis-
sioners on the other, there existed “a feld of doubt” that the
Court left “for future consideration.” Ibid.
We have recognized a second exception for inferior off-
cers in two cases, United States v. Perkins and Morrison v.
Olson.
3
In Perkins, we upheld tenure protections for a
naval cadet-engineer. 116 U. S., at 485. And, in Morrison,
we upheld a provision granting good-cause tenure protection
to an independent counsel appointed to investigate and pros-
ecute particular alleged crimes by high-ranking Government
offcials. 487 U. S., at 662–663, 696–697. Backing away
from the reliance in Humphrey's Executor on the concepts
of “quasi-legislative” and “quasi-judicial” power, we viewed
the ultimate question as whether a removal restriction is of
“such a nature that [it] impede[s] the President's ability to
perform his constitutional duty.” 487 U. S., at 691. Al-
though the independent counsel was a single person and per-
formed “law enforcement functions that typically have been
undertaken by offcials within the Executive Branch,” we
concluded that the removal protections did not unduly inter-
fere with the functioning of the Executive Branch because
3
Article II distinguishes between two kinds of offcers—principal off-
cers (who must be appointed by the President with the advice and consent
of the Senate) and inferior offcers (whose appointment Congress may vest
in the President, courts, or heads of Departments). § 2, cl. 2. While
“[o]ur cases have not set forth an exclusive criterion for distinguishing
between principal and inferior offcers,” we have in the past examined
factors such as the nature, scope, and duration of an offcer's duties. Ed-
mond v. United States, 520 U. S. 651, 661 (1997). More recently, we have
focused on whether the offcer's work is “directed and supervised” by a
principal offcer. Id., at 663.

218 SEILA
LAW LLC v. CONSUMER FINANCIAL
PROTECTION BUREAU
Opinion of the Court
“the independent counsel [was] an inferior offcer under the
Appoi
ntments Clause, with limited jurisdiction and tenure
and lacking policymaking or signifcant administrative au-
thority.” Ibid.
These two exceptions—one for multimember expert agen-
cies that do not wield substantial executive power, and one
for inferior offcers with limited duties and no policymaking
or administrative authority—“represent what up to now
have been the outermost constitutional limits of permissi-
ble congressional restrictions on the President's removal
power.” PHH, 881 F. 3d, at 196 (Kavanaugh, J., dissenting)
(internal quotation marks omitted).
B
Neither Humphrey's Executor nor Mor r ison resolves
whether the CFPB Director's insulation from removal is con-
stitutional. Start with Humphrey's Executor. Unlike the
New Deal-era FTC upheld there, the CFPB is led by a single
Director who cannot be described as a “body of experts” and
cannot be considered “non-partisan” in the same sense as a
group of offcials drawn from both sides of the aisle. 295
U. S., at 624. Moreover, while the staggered terms of the
FTC Commissi oners prevented complete tur novers i n
agency leadership and guaranteed that there would always
be some Commissioners who had accrued signifcant exper-
tise, the CFPB's single-Director structure and fve-year
term guarantee abrupt shifts in agency leadership and with
it the loss of accumulated expertise.
In addition, the CFPB Director is hardly a mere legislative
or judicial aid. Instead of making reports and recommenda-
tions to Congress, as the 1935 FTC did, the Director pos-
sesses the authority to promulgate binding rules feshing out
19 federal statutes, including a broad prohibition on unfair
and deceptive practices in a major segment of the U. S. econ-
omy. And instead of submitting recommended dispositions

Cite
as: 591 U. S. 197 (2020)
219
Opinion of the Court
to an Article III court, the Director may unilaterally issue
f
nal decisions awarding legal and equitable relief in adminis-
trative adjudications. Finally, the Director's enforcement
authority includes the power to seek daunting monetary pen-
alties against private parties on behalf of the United States
in federal court—a quintessentially executive power not con-
sidered in Humphrey's Executor.
4
The logic of Morrison also does not apply. Everyone
agrees the CFPB Director is not an inferior offcer, and her
duties are far from limited. Unlike the independent counsel,
who lacked policymaking or administrative authority, the Di-
rector has the sole responsibility to administer 19 separate
consumer-protection statutes that cover everything from
credit cards and car payments to mortgages and student
loans. It is true that the independent counsel in Morrison
was empowered to initiate criminal investigations and prose-
cutions, and in that respect wielded core executive power.
But that power, while signifcant, was trained inward to
high-ranking governmental actors identifed by others, and
was confned to a specifed matter in which the Department
of Justice had a potential confict of interest. By contrast,
the CFPB Director has the authority to bring the coercive
power of the state to bear on millions of private citizens and
4
The dissent would have us ignore the reasoning of Humphrey's Exe-
cu t o r and i nstead apply the decisi on only as par t of a rei mag i ned
Humphrey's-through-Morrison framework. See post, at 278, n. 7, 279–
282 (Kagan, J., concurring in judgment with respect to severability and
dissenting in part) (hereinafter dissent). But we take the decision on its
own terms, not through gloss added by a later Court in dicta. The dissent
also criticizes us for suggesting that the 1935 FTC may have had lesser
responsibilities than the present FTC. See post, at 286–287, n. 10. Per-
haps the FTC possessed broader rulemaking, enforcement, and adjudica-
tory powers than the Humphrey's Court appreciated. Perhaps not.
Either way, what matters is the set of powers the Court considered as the
basis for its decision, not any latent powers that the agency may have had
not alluded to by the Court.

220 SEILA
LAW LLC v. CONSUMER FINANCIAL
PROTECTION BUREAU
Opinion of the Court
businesses, imposing even billion-dollar penalties through
admi
nistrative adjudications and civil actions.
In light of these differences, the constitutionality of the
CFPB Director's insulation from removal cannot be settled
by Humphrey's Executor or Morrison alone.
C
The question instead is whether to extend those prece-
dents to the “new situation” before us, namely an independ-
ent agency led by a single Director and vested with signif-
cant executive power. Free Enterprise Fund, 561 U. S., at
483. We decline to do so. Such an agency has no basis in
history and no place in our constitutional structure.
1
“Perhaps the most telling indication of [a] severe constitu-
tional problem” with an executive entity “is [a] lack of histor-
ical precedent” to support it. Id., at 505 (internal quotation
marks omitted). An agency with a structure like that of the
CFPB is almost wholly unprecedented.
After years of litigating the agency's constitutionality, the
Courts of Appeals, parties, and amici have identifed “only a
handful of isolated” incidents in which Congress has provided
good-cause tenure to principal offcers who wield power
alone rather than as members of a board or commission.
Ibid. “[T]hese few scattered examples”—four to be exact—
shed little light. NLRB v. Noel Canning, 573 U. S. 513,
538 (2014).
First, the CFPB's defenders point to the Comptroller of
the Currency, who enjoyed removal protection for one year
during the Civil War. That example has rightly been dis-
missed as an aberration. It was “adopted without discus-
sion” during the heat of the Civil War and abandoned be-
fore it could be “tested by executive or judicial inquiry.”
Myers, 272 U. S., at 165. (At the time, the Comptroller may
also have been an inferior offcer, given that he labored

Cite
as: 591 U. S. 197 (2020)
221
Opinion of the Court
“under the general direction of the Secretary of the Treas-
ury
.” Ch. 58, 12 Stat. 665.)
5
Second, the supporters of the CFPB point to the Offce of
the Special Counsel (OSC), which has been headed by a sin-
gle offcer since 1978.
6
But this frst enduring single-leader
offce, created nearly 200 years after the Constitution was
ratifed, drew a contemporaneous constitutional objection
from the Offce of Legal Counsel under President Carter and
a subsequent veto on constitutional grounds by President
Reagan. See Memorandum Opinion for the General Coun-
sel, Civil Service Commission, 2 Op. OLC 120, 122 (1978);
Public Papers of the Presidents, Ronald Reagan, Vol. II,
Oct. 26, 1988, pp. 1391–1392 (1991).
7
In any event, the OSC
exercises only limited jurisdiction to enforce certain rules
governing Federal Government employers and employees.
See 5 U. S. C. § 1212. It does not bind private parties at all
or wield regulatory authority comparable to the CFPB.
Third, the CFPB's defenders note that the Social Security
Administration (SSA) has been run by a single Administra-
tor since 1994. That example, too, is comparatively recent
and controversial. President Clinton questioned the consti-
tutionality of the SSA's new single-Director structure upon
5
The dissent suggests that the Comptroller still enjoyed some degree of
insulation after his removal protection was repealed because the President
faced a new requirement to “communicate[ ]” his “reasons” for terminating
the Comptroller to the Senate. Post, at 274 (quoting Act of June 3, 1864,
ch. 106, § 1, 13 Stat. 100). But the President could still remove the Comp-
troller for any reason so long as the President was, in the dissent's phrase,
“in a fring mood.” Post, at 275.
6
The OSC should not be confused with the independent counsel in Mor-
rison or the special counsel recently appointed to investigate allegations
related to the 2016 Presidential election. Despite sharing similar titles,
those individuals have no relationship to the OSC.
7
An Act similar to the one vetoed by President Reagan was eventually
signed by President George H. W. Bush after extensive negotiations and
compromises with Congress. See Public Papers of the Presidents, George
H. W. Bush, Vol. I, Apr. 10, 1989, p. 391 (1990).

222 SEILA
LAW LLC v. CONSUMER FINANCIAL
PROTECTION BUREAU
Opinion of the Court
signing it into law. See Public Papers of the Presidents,
W
illiam J. Clinton, Vol. II, Aug. 15, 1994, pp. 1471–1472 (1995)
(inviting a “corrective amendment” from Congress). In ad-
dition, unlike the CFPB, the SSA lacks the authority to bring
enforcement actions against private parties. Its role is
largely limited to adjudicating claims for Social Security
benefts.
The only remaining example is the Federal Housing Fi-
nance Agency (FHFA), created in 2008 to assume responsi-
bility for Fannie Mae and Freddie Mac. That agency is es-
sentially a companion of the CFPB, established in response
to the same fnancial crisis. See Housing and Economic Re-
covery Act of 2008, 122 Stat. 2654. It regulates primarily
Gover nment-sponsored enterpr ises, not purely pr ivate
actors. And its single-Director structure is a source of on-
going controversy. Indeed, it was recently held unconstitu-
tional by the Fifth Circuit, sitting en banc. See Collins v.
Mnuchin, 938 F. 3d 553, 587–588 (2019).
With the exception of the one-year blip for the Comptrol-
ler of the Currency, these isolated examples are modern and
contested. And they do not involve regulatory or enforce-
ment authority remotely comparable to that exercised by the
CFPB. The CFPB's single-Director structure is an innova-
tion with no foothold in history or tradition.
8
2
In addition to being a historical anomaly, the CFPB's
single-Director confguration is incompatible with our consti-
tutional structure. Aside from the sole exception of the
8
The dissent categorizes the CFPB as one of many “fnancial regulators”
that have historically enjoyed some insulation from the President. See
post, at 271–276. But even assuming fnancial institutions like the Second
Bank and the Federal Reserve can claim a special historical status, the
CFPB is in an entirely different league. It acts as a mini legislature,
prosecutor, and court, responsible for creating substantive rules for a wide
swath of industries, prosecuting violations, and levying knee-buckling pen-
alties against private citizens. See supra, at 206–207. And, of course, it
is the only agency of its kind run by a single Director.

Cite
as: 591 U. S. 197 (2020)
223
Opinion of the Court
Presidency, that structure scrupulously avoids concentrating
power
in the hands of any single individual.
“The Framers recognized that, in the long term, structural
protections against abuse of power were critical to preserv-
ing liberty.” Bowsher, 478 U. S., at 730. Their solution to
governmental power and its perils was simple: divide it. To
prevent the “gradual concentration” of power in the same
hands, they enabled “[a]mbition . . . to counteract ambition”
at every turn. The Federalist No. 51, p. 349 (J. Cooke ed.
1961) (J. Madison). At the highest level, they “split the atom
of sovereignty” itself into one Federal Government and the
States. Gamble v. United States, 587 U. S. 678, 688 (2019)
(internal quotation marks omitted). They then divided the
“powers of the new Federal Government into three defned
categories, Legislative, Executive, and Judicial.” Chadha,
462 U. S., at 951.
They did not stop there. Most prominently, the Framers
bifurcated the federal legislative power into two Chambers:
the House of Representatives and the Senate, each composed
of multiple Members and Senators. Art. I, §§ 2, 3.
The Executive Branch is a stark departure from all this
division. The Framers viewed the legislative power as a
special threat to individual liberty, so they divided that
power to ensure that “differences of opinion” and the “jar-
rings of parties” would “promote deliberation and circum-
spection” and “check excesses in the majority.” See The
Federalist No. 70, at 475 (A. Hamilton); see also id., No. 51,
at 350. By contrast, the Framers thought it necessary to
secure the authority of the Executive so that he could carry
out his unique responsibilities. See id., No. 70, at 475–478.
As Madison put it, while “the weight of the legislative au-
thority requires that it should be . . . divided, the weakness
of the executive may require, on the other hand, that it
should be fortifed.” Id., No. 51, at 350.
The Framers deemed an energetic executive essential to
“the protection of the community against foreign attacks,”
“the steady administration of the laws,” “the protection of

224 SEILA
LAW LLC v. CONSUMER FINANCIAL
PROTECTION BUREAU
Opinion of the Court
property,” and “the security of liberty.” Id., No. 70, at 471.
A
ccordingly, they chose not to bog the Executive down with
the “habitual feebleness and dilatoriness” that comes with a
“diversity of views and opinions.” Id., at 476. Instead,
they gave the Executive the “[d]ecision, activity, secrecy, and
dispatch” that “characterise the proceedings of one man.”
Id., at 472.
To justify and check that authority—unique in our consti-
tutional structure—the Framers made the President the
most democratic and politically accountable offcial in Gov-
ernment. Only the President (along with the Vice Presi-
dent) is elected by the entire Nation. And the President's
political accountability is enhanced by the solitary nature of
the Executive Branch, which provides “a single object for
the jealousy and watchfulness of the people.” Id., at 479.
The President “cannot delegate ultimate responsibility or the
active obligation to supervise that goes with it,” because Ar-
ticle II “makes a single President responsible for the actions
of the Executive Branch.” Free Enterprise Fund, 561 U. S.,
at 496–497 (quoting Clinton v. Jones, 520 U. S. 681, 712–713
(1997) (Breyer, J., concurring in judgment)).
The resulting constitutional strategy is straightforward:
divide power everywhere except for the Presidency, and ren-
der the President directly accountable to the people through
regular elections. In that scheme, individual executive of-
fcials will still wield signifcant authority, but that authority
remains subject to the ongoing supervision and control of the
elected President. Through the President's oversight, “the
chain of dependence [is] preserved,” so that “the lowest off-
cers, the middle grade, and the highest” all “depend, as they
ought, on the President, and the President on the commu-
nity.” 1 Annals of Cong. 499 (J. Madison).
The CFPB's single-Director structure contravenes this
carefully calibrated system by vesting signifcant govern-
mental power in the hands of a single individual accountable
to no one. The Director is neither elected by the people nor

Cite
as: 591 U. S. 197 (2020)
225
Opinion of the Court
meaningfully controlled (through the threat of removal) by
someone
who is. The Director does not even depend on
Congress for annual appropriations. See The Federalist
No. 58, at 394 (J. Madison) (describing the “power over the
purse” as the “most compleat and effectual weapon” in repre-
senting the interests of the people). Yet the Director may
unilaterally, without meaningful supervision, issue fnal reg-
ulations, oversee adjudications, set enforcement priorities,
initiate prosecutions, and determine what penalties to im-
pose on private parties. With no colleagues to persuade,
and no boss or electorate looking over her shoulder, the Di-
rector may dictate and enforce policy for a vital segment of
the economy affecting millions of Americans.
The CFPB Director's insulation from removal by an ac-
countable President is enough to render the agency's struc-
ture unconstitutional. But several other features of the
CFPB combine to make the Director's removal protection
even more problematic. In addition to lacking the most di-
rect method of Presidential control—removal at will—the
agency's unique structure also forecloses certain indirect
methods of Presidential control.
Because the CFPB is headed by a single Director with a
fve-year term, some Presidents may not have any opportu-
nity to shape its leadership and thereby infuence its activi-
ties. A President elected in 2020 would likely not appoint a
CFPB Director until 2023, and a President elected in 2028
may never appoint one. That means an unlucky President
might get elected on a consumer-protection platform and
enter offce only to fnd herself saddled with a holdover Di-
rector from a competing political party who is dead set
against that agenda. To make matters worse, the agency's
single-Director structure means the President will not have
the opportunity to appoint any other leaders—such as a chair
or fellow members of a Commission or Board—who can serve
as a check on the Director's authority and help bring the
agency in line with the President's preferred policies.

226 SEILA
LAW LLC v. CONSUMER FINANCIAL
PROTECTION BUREAU
Opinion of the Court
The CFPB's receipt of funds outside the appropriations
process
further aggravates the agency's threat to Presiden-
tial control. The President normally has the opportunity to
recommend or veto spending bills that affect the operation
of administrative agencies. See Art. I, § 7, cl. 2; Art. II, § 3.
And, for the past century, the President has annually sub-
mitted a proposed budget to Congress for approval. See
Budget and Accounting Act, 1921, ch. 18, § 201, 42 Stat. 20.
Presidents frequently use these budgetary tools “to infuence
the policies of independent agencies.” PHH, 881 F. 3d, at
147 (Henderson, J., dissenting) (citing Pasachoff, The Presi-
dent's Budget as a Source of Agency Policy Control, 125 Yale
L. J. 2182, 2191, 2203–2204 (2016)). But no similar opportu-
nity exists for the President to infuence the CFPB Director.
Instead, the Director receives over $500 million per year to
fund the agency's chosen priorities. And the Director re-
ceives that money from the Federal Reserve, which is itself
funded outside of the annual appropriations process. This
fnancial freedom makes it even more likely that the agency
will “slip from the Executive's control, and thus from that of
the people.” Free Enterprise Fund, 561 U. S., at 499.
9
3
Amicus raises three principal arguments in the agency's
defense. At the outset, amicus questions the textual basis
9
Amicus and the dissent try to diminish the CFPB's insulation from
Presidential control by observing that the CFPB's fnal rules can be set
aside by a super majority of the Financial Stability and Oversight Council
(FSOC). See Brief for Court-Appointed Amicus Curiae 40; post, at 292,
n. 13, 295. But the FSOC's veto power is statutorily reserved for extreme
situations, when two-thirds of the Council concludes that a CFPB regula-
tion would “put the safety and soundness of the United States banking
system or the stability of the fnancial system of the United States at
risk.” 12 U. S. C. §§ 5513(a), (c)(3). That narrow escape hatch has no
impact on the CFPB's enforcement or adjudicatory authority and has
never been used in the ten years since the agency's creation. It certainly
does not render the CFPB's independent, si ng le-D irec tor str uc ture
constitutional.

Cite
as: 591 U. S. 197 (2020)
227
Opinion of the Court
for the removal power and highlights statements from Madi-
son,
Hamilton, and Chief Justice Marshall expressing “het-
erodox” views on the subject. Brief for Court-Appointed
Amicus Curiae 4–5, 28–29. But those concerns are mis-
placed. It is true that “there is no `removal clause' in the
Constitution,” id., at 1, but neither is there a “separation of
powers clause” or a “federalism clause.” These foundational
doctrines are instead evident from the Constitution's vesting
of certain powers in certain bodies. As we have explained
many times before, the President's removal power stems
from Article II's vesting of the “executive Power” in the
President. Free Enterprise Fund, 561 U. S., at 483 (quoting
Art. II, § 1, cl. 1). As for the opinions of Madison, Hamilton,
and Chief Justice Marshall, we have already considered the
statements cited by amicus and discounted them in light of
their context (Madison), the fact they refect initial impres-
sions later abandoned by the speaker (Hamilton), or their
subsequent rejection as ill-considered dicta (Chief Justice
Marshall). See Free Enterprise Fund, 561 U. S., at 500, n. 6
(Madison); Myers, 272 U. S., at 136–139, 142–144 (Hamilton
and Chief Justice Marshall).
10
10
The dissent likewise points to Madison's statement in The Federalist
No. 39 that the “tenure” of “ministerial offces generally will be a subject
of legal regulation.” Post, at 270 (quoting The Federalist No. 39, p. 253
(J. Cooke ed. 1961)). But whatever Madison may have meant by that
statement, he later led the charge in contending, on the foor of the First
Congress, that “inasmuch as the power of removal is of an Executive na-
ture . . . it is beyond the reach of the Legislative body.” 1 Annals of Cong.
464 (1789); see also id., at 462–464, 495–496. Like the dissent in Free
Enterprise Fund, the dissent goes on to “attribute[ ] to Madison a belief
that . . . the Comptroller[ ] could be made independent of the President.
But Madison's actual proposal, consistent with his view of the Constitu-
tion, was that the Comptroller hold offce for a term of `years, unless
sooner removed by the President'; he would thus be `dependent upon
the President, because he can be removed by him,' and also `dependent
upon the Senate, because they must consent to his [reappointment] for
every term of years.' ” Free Enterprise Fund v. Public Company Ac-
counting Oversight Bd., 561 U. S. 477, 499, 500, n. 6 (2010) (quoting 1

228 SEILA
LAW LLC v. CONSUMER FINANCIAL
PROTECTION BUREAU
Opinion of the Court
Next, amicus offers a grand theory of our removal prece-
dents
that, if accepted, could leave room for an agency like
the CFPB—and many other innovative intrusions on Arti-
cle II. According to amicus, Humphrey's Executor and
Morrison establish a general rule that Congress may impose
“modest” restrictions on the President's removal power, with
only two limited exceptions. Brief for Court-Appointed
Amicus Curiae 33–37. Congress may not reserve a role for
itself in individual removal decisions (as it attempted to do
in Myers and Bowsher). And it may not eliminate the Pres-
ident's removal power altogether (as it effectively did in Free
Enterprise Fund). Outside those two situations, amicus
argues, Congress is generally free to constrain the Presi-
dent's removal power. See also post, at 276–282 (Kagan,
J., concurring in judgment with respect to severability and
dissenting in part) (hereinafter dissent) (expressing similar
view).
But text, frst principles, the First Congress's decision in
1789, Myers, and Free Enterprise Fund all establish that
the President's removal power is the rule, not the exception.
While we do not revisit Humphrey's Executor or any other
precedent today, we decline to elevate it into a freestanding
invitation for Congress to impose additional restrictions on
the President's removal authority.
11
Annals of Cong. 612; citation omitted). See post, at 270, n. 4. The dissent
further notes that, at the time of the founding, some States placed limita-
tions on their Governors' removal power. See post, at 267. But the
Framers hardly viewed State Governors as a reliable guide in fashioning
the Federal Executive. Indeed, they expressly rejected the “executive
council” structure favored by most States, fearing that subjecting the
President to oversight, as the States had, would “distract and . . . enervate
the whole system of administration” and inject it with “habitual feebleness
and dilatoriness.” The Federalist No. 70, at 473, 476 (A. Hamilton).
11
Building on amicus' proposal, the dissent would endorse whatever
“the times demand, so long as the President retains the ability to carry
out his constitutional duties.” Post, at 264. But that amorphous test

Cite
as: 591 U. S. 197 (2020)
229
Opinion of the Court
Finally, amicus contends that if we identify a constitu-
ti
onal problem with the CFPB's structure, we should avoid
it by broadly construing the statutory grounds for removing
the CFPB D irec tor from office. See Br ief for Cour t-
Appointed Amicus Curiae 50–53; Tr. of Oral Arg. 57–62.
The Dodd-Frank Act provides that the Director may be re-
moved for “ineffciency, neglect of duty, or malfeasance in
offce.” 12 U. S. C. § 5491(c)(3). In amicus' view, that lan-
guage could be interpreted to reserve substantial discretion
to the President. Brief for Court-Appointed Amicus Cu-
riae 51.
We are not persuaded. For one, Humphrey's Executor
implicitly rejected an interpretation that would leave the
President free to remove an offcer based on disagreements
about agency policy. See 295 U. S., at 619, 625–626. In ad-
dition, while both amicus and the House of Representatives
invite us to adopt whatever construction would cure the con-
provides no real limiting principle. The “clearest” (and only) “example”
the dissent can muster for what may be prohibited is a for-cause removal
restriction placed on the President's “close military or diplomatic advis-
ers.” Post, at 276. But that carveout makes no logical or constitutional
sense. In the dissent's view, for-cause removal restrictions are permissi-
ble because they guarantee the President “meaningful control” over his
subordinates. Post, at 288 (internal quotation marks and alterations
omitted); see also post, at 268, 279–280, 285–286, 295. If that is the theory,
then what is the harm in giving the President the same “meaningful con-
trol” over his close advisers? The dissent claims to see a constitutional
distinction between the President's “own constitutional duties in foreign
relations and war” and his duty to execute laws passed by Congress.
Post, at 273. But the same Article that establishes the President's foreign
relations and war duties expressly entrusts him to take care that the laws
be faithfully executed. And, from the perspective of the governed, it is
far from clear that the President's core and traditional powers present
greater cause for concern than peripheral and modern ones. If anything,
“[t]he growth of the Executive Branch, which now wields vast power and
touches almost every aspect of daily life, heightens the concern that it
may slip from the Executive's control, and thus from that of the people.”
Free Enterprise Fund, 561 U. S., at 499 (emphasis added).

230 SEILA
LAW LLC v. CONSUMER FINANCIAL
PROTECTION BUREAU
Opinion of the Court
stitutional problem, they have not advanced any workable
st
andard derived from the statutory language. Amicus
suggests that the proper standard might permit removals
based on general policy disagreements, but not specifc ones;
the House suggests that the permissible bases for removal
might vary depending on the context and the Presidential
power involved. See Tr. of Oral Arg. 58–60, 76–77. They
do not attempt to root either of those standards in the statu-
tory text. Further, although nearly identical language
governs the removal of some two-dozen multimember in-
dependent agencies, amicus suggests that the standard
should vary from agency to agency, morphing as necessary
to avoid constitutional doubt. Id., at 55–56. We decline
to embrace such an uncertain and elastic approach to the
text.
Amicus and the House also fail to engage with the Dodd-
Frank Act as a whole, which makes plain that the CFPB is
an “independent bureau.” 12 U. S. C. § 5491(a); see also 44
U. S. C. § 3502(5) (listing the CFPB as an “independent regu-
latory agency”). Neither amicus nor the House explains
how the CFPB would be “independent” if its head were re-
quired to implement the President's policies upon pain of
removal. See Black's Law Dictionary 838 (9th ed. 2009)
(defning “independent” as “[n]ot subject to the control or
infuence of another”). The Constitution might of course
compel the agency to be dependent on the President notwith-
standing Congress's contrary intent, but that result cannot
fairly be inferred from the statute Congress enacted.
Constitutional avoidance is not a license to rewrite Con-
gress's work to say whatever the Constitution needs it to say
in a given situation. Without a proffered interpretation
that is rooted in the statutory text and structure, and would
avoid the constitutional violation we have identifed, we take
Congress at its word that it meant to impose a meaningful
restriction on the President's removal authority.

Cite
as: 591 U. S. 197 (2020)
231
Opinion of the Court
The dissent, for its part, largely reprises points that the
Cour
t has already considered and rejected: It notes the lack
of an express removal provision, invokes Congress's general
power to create and defne executive offces, highlights iso-
lated statements from individual Framers, downplays the de-
cision of 1789, minimizes Myers, brainstorms methods of
Presidential control short of removal, touts the need for cre-
ative congressional responses to technological and economic
change, and celebrates a pragmatic, fexible approach to Amer-
ican governance. See post, at 261–284, 292–293, 297–298.
If these arguments sound familiar, it's because they are.
They were raised by the dissent in Free Enterprise Fund.
Compare post, at 261–284, 292–293, 297–298, with Free En-
terprise Fund, 561 U. S., at 515–524, 530 (Breyer, J., dis-
senting). The answers to these repeated concerns (beyond
those we have already covered) are the same today as they
were ten years ago. Today, as then, Congress's “plenary
control over the salary, duties, and even existence of execu-
tive offces” makes “Presidential oversight” more critical—
not less—as the “[o]nly” tool to “counter [Congress's] infu-
ence.” Id., at 500 (opinion of the Court). Today, as then,
the various “bureaucratic minutiae” a President might use
to corral agency personnel is no substitute for at will re-
moval. Ibid. And today, as always, the urge to meet new
technological and societal problems with novel governmental
structures must be tempered by constitutional restraints
that are not known—and were not chosen—for their eff-
ciency or fexibility. Id., at 499.
As we explained in Free Enterprise Fund, “One can have
a government that functions without being ruled by func-
tionaries, and a government that benefts from expertise
without being ruled by experts.” Ibid. While “[n]o one
doubts Congress's power to create a vast and varied federal
bureaucracy,” the expansion of that bureaucracy into new
territories the Framers could scarcely have imagined only

232 SEILA
LAW LLC v. CONSUMER FINANCIAL
PROTECTION BUREAU
Opinion of Roberts, C. J.
sharpens our duty to ensure that the Executive Branch is
overseen
by a President accountable to the people. Ibid.
IV
Having concluded that the CFPB's leadership by a single
independent Director violates the separation of powers, we
now turn to the appropriate remedy. We directed the par-
ties to brief and argue whether the Director's removal
protection was severable from the other provisions of the
Dodd-Frank Act that establish the CFPB. If so, then the
CFPB may continue to exist and operate notwithstanding
Congress's unconstitutional attempt to insulate the agency's
Director from removal by the President. There is a live
controversy between the par ties on that questi on, and
resolving it is a necessary step in determining petitioner's
entitlement to its requested relief.
As the defendant in this action, petitioner seeks a straight-
forward remedy. It asks us to deny the Government's peti-
tion to enforce the civil investigative demand and dismiss the
case. The Government counters that the demand, though
initially issued by a Director unconstitutionally insulated
from removal, can still be enforced on remand because it has
since been ratifed by an Acting Director accountable to the
President. The parties dispute whether this alleged ratif-
cation in fact occurred and whether, if so, it is legally suff-
cient to cure the constitutional defect in the original demand.
That debate turns on case-specifc factual and legal questions
not addressed below and not briefed here. A remand for
the lower courts to consider those questions in the frst in-
stance is therefore the appropriate course—unless such a
remand would be futile.
In petitioner's view, it would be. Before the Court of Ap-
peals, petitioner contended that, regardless of any ratifca-
tion, the demand is unenforceable because the statutory pro-
vision insulating the CFPB Director from removal cannot be
severed from the other statutory provisions that defne the

Cite
as: 591 U. S. 197 (2020)
233
Opinion of Roberts, C. J.
CFPB's authority. See Brief for Appellant in No. 17–56324
(
CA9), pp. 27–28, 30–32. If petitioner is correct, and the of-
fending removal provision means the entire agency is uncon-
stitutional and powerless to act, then a remand would be
pointless. With no agency left with statutory authority to
maintain this suit or otherwise enforce the demand, the ap-
propriate disposition would be to reverse with instructions
to deny the Government's petition to enforce the agency's
demand for documents and dismiss the case, as petitioner
requests.
Accordingly, there is a live controversy over the question
of severability. And that controversy is essential to our
ability to provide petitioner the relief it seeks: If the removal
restriction is not severable, then we must grant the relief
requested, promptly rejecting the demand outright. If, on
the other hand, the removal restriction is severable, we must
instead remand for the Government to press its ratifcation
arguments in further proceedings. Unlike the lingering rat-
ifcation issue, severability presents a pure question of law
that has been fully briefed and argued by the parties. We
therefore proceed to address it.
12
It has long been settled that “one section of a statute may
be repugnant to the Constitution without rendering the
whole act void.” Loeb v. Columbia Township Trustees, 179
U. S. 472, 490 (1900) (quoting Treasurer of Fayette Cty. v.
People's & Drovers' Bank, 47 Ohio St. 503, 523, 25 N. E. 697,
12
Justice Thomas believes that any ratifcation is irrelevant. In his
view, even if the issuance of the demand and initiation of this suit have
been validly ratifed, Director Kraninger's activities in litigating the
case—after inheriting it from an Acting Director, but before becoming
removable at will herself in light of our decision—present a distinct consti-
tutional injury requiring immediate dismissal. See post, at 254–256 (opin-
ion concurring in part and dissenting in part). But whether and when
the temporary involvement of an unconstitutionally insulated offcer in an
otherwise valid prosecution requires dismissal falls outside the questions
presented, has not been fully briefed, and is best resolved by the lower
courts in the frst instance.

234 SEILA
LAW LLC v. CONSUMER FINANCIAL
PROTECTION BUREAU
Opinion of Roberts, C. J.
702 (1890)). Because a “statute bad in part is not necessar-
i
ly void in its entirety,” “[p]rovisions within the legislative
power may stand if separable from the bad.” Dorchy v.
Kansas, 264 U. S. 286, 289–290 (1924).
“Generally speaking, when confronting a constitutional
faw in a statute, we try to limit the solution to the problem,
severing any problematic portions while leaving the remain-
der intact.” Free Enterprise Fund, 561 U. S., at 508 (inter-
nal quotation marks omitted). Even in the absence of a
severability clause, the “traditional” rule is that “the uncon-
stitutional provision must be severed unless the statute cre-
ated in its absence is legislation that Congress would not
have enacted.” Alaska Airlines, Inc. v. Brock, 480 U. S.
678, 685 (1987). When Congress has expressly provided a
severability clause, our task is simplifed. We will presume
“that Congress did not intend the validity of the statute in
question to depend on the validity of the constitutionally of-
fensive provision . . . unless there is strong evidence that
Congress intended otherwise.” Id., at 686.
The only constitutional defect we have identifed in the
CFPB's structure is the Director's insulation from removal.
If the Director were removable at will by the President, the
constitutional violation would disappear. We must there-
fore decide whether the removal provision can be severed
from the other statutory provisions relating to the CFPB's
powers and responsibilities.
In Free Enterprise Fund, we found a set of unconstitu-
tional removal provisions severable even in the absence of an
express severability clause because the surviving provisions
were capable of “functioning independently” and “nothing in
the statute's text or historical context [made] it evident that
Congress, faced with the limitations imposed by the Consti-
tution, would have preferred no Board at all to a Board
whose members are removable at will.” 561 U. S., at 509
(internal quotation marks omitted).

Cite
as: 591 U. S. 197 (2020)
235
Opinion of Roberts, C. J.
So too here. The provisions of the Dodd-Frank Act bear-
i
ng on the CFPB's structure and duties remain fully opera-
tive without the offending tenure restriction. Those provi-
sions are capable of functioning independently, and there is
nothing in the text or history of the Dodd-Frank Act that
demonstrates Congress would have preferred no CFPB to
a CFPB supervised by the President. Quite the opposite.
Unlike the Sarbanes-Oxley Act at issue in Free Enterprise
Fund, the Dodd-Frank Act contains an express severability
clause. There is no need to wonder what Congress would
have wanted if “any provision of this Act” is “held to be
unconstitutional” because it has told us: “the remainder of
this Act” should “not be affected.” 12 U. S. C. § 5302.
Petitioner urges us to disregard this plain language for
three reasons. None is persuasive. First, petitioner dis-
misses the clause as non-probative “boilerplate” because it
applies “to the entire, 848-page Dodd-Frank Act” and “ap-
pears almost 600 pages before the removal provision at
issue.” Brief for Petitioner 45. In petitioner's view, that
means we cannot be certain that Congress really meant to
apply the clause to each of the Act's provisions. But boiler-
plate is boilerplate for a reason—because it offers tried-and-
true language to ensure a precise and predictable result.
That is the case here. The language unmistakably refer-
ences “any provision of this Act.” 12 U. S. C. § 5302 (empha-
sis added). And it appears in a logical and prominent place,
immediately following the Act's title and defnitions sections,
reinforcing the conclusion that it applies to the entirety of
the Act. Congress was not required to laboriously insert
duplicative severability clauses, provision by provision, to ac-
complish its stated objective.
Second, petitioner points to an additional severability
clause in the Act that applies only to one of the Act's sub-
titles. See 15 U. S. C. § 8232. In petitioner's view, that
clause would be superfuous if Congress meant the general

236 SEILA
LAW LLC v. CONSUMER FINANCIAL
PROTECTION BUREAU
Opinion of Roberts, C. J.
severability clause to apply across the Act. But “our prefer-
ence
for avoiding surplusage constructions is not absolute.”
Lamie v. United States Trustee, 540 U. S. 526, 536 (2004).
In this instance, the redundant language appears to refect
the fact that the subtitle to which it refers originated as a
standalone bill that was later incorporated into Dodd-Frank.
Compare 15 U. S. C. § 8232 with H. R. 2571, 111th Cong., 1st
Sess., § 302 (2009). And petitioner does not offer any con-
struction that would give effect to both provisions, making
the redundancy both inescapable and unilluminating. See
Microsoft Corp. v. i4i L. P., 564 U. S. 91, 106 (2011) (“The
canon against superfuity assists only where a competing in-
terpretation gives effect to every clause and word of a stat-
ute.” (internal quotation marks omitted)).
Finally, petitioner argues more broadly that Congress
would not have wanted to give the President unbridled con-
trol over the CFPB's vast authority. Petitioner highlights
the references to the CFPB's independence in the statutory
text and legislative history, as well as in Professor Warren's
and the Obama administration's original proposals. See
Brief for Petitioner 43–44 (collecting examples). And peti-
tioner submits that Congress might not have exempted the
CFPB from congressional oversight via the appropriations
process if it had known that the CFPB would come under
executive control.
These observations certainly confrm that Congress pre-
ferred an independent CFPB to a dependent one; but they
shed little light on the critical question whether Congress
would have preferred a dependent CFPB to no agency at
all. That is the only question we have the authority to de-
cide, and the answer seems clear. Petitioner assumes that,
if we eliminate the CFPB, regulatory and enforcement au-
thority over the statutes it administers would simply revert
back to the handful of independent agencies previously re-
sponsible for them. See id., at 46. But, as the Solicitor
General and House of Representatives explain, that shift

Cite
as: 591 U. S. 197 (2020)
237
Opinion of Roberts, C. J.
would trigger a major regulatory disruption and would leave
appreciable
damage to Congress's work in the consumer-
fnance arena. See Reply Brief for Respondent 21–22; Tr.
of Oral Arg. 67–68. One of the agencies whose regulatory
authority was transferred to the CFPB no longer exists.
See 12 U. S. C. §§ 5412–5413 (Offce of Thrift Supervision).
The others do not have the staff or appropriations to absorb
the CFPB's 1,500-employee, 500-million-dollar operations.
And none has the authority to administer the Dodd-Frank
Act's new prohibition on unfair and deceptive practices in
the consumer-fnance sector. Given these consequences, it
is far from evident that Congress would have preferred no
CFPB to a CFPB led by a Director removable at will by
the President.
Justice Thomas would have us junk our settled severabil-
ity doctrine and start afresh, even though no party has asked
us to do so. See post, at 252–253, 258–261 (opinion concur-
ring in part and dissenting in part). Among other things,
he objects that it is sheer “speculation” that Congress would
prefer that its consumer protection laws be enforced by a
Director accountable to the President rather than not at all.
Post, at 261. We think it clear that Congress would prefer
that we use a scalpel rather than a bulldozer in curing the con-
stitutional defect we identify today. And such an approach
by this Court can come as no surprise to Congress, which
was on notice of constitutional objections to single-Director
agencies by multiple past Presidents from both political par-
ties, supra, at 221–222, and enacted Dodd-Frank against the
background of our established severability doctrine.
As in every severability case, there may be means of reme-
dying the defect in the CFPB's structure that the Court
lacks the authority to provide. Our severability analysis
does not foreclose Congress from pursuing alternative re-
sponses to the problem—for example, converting the CFPB
into a multimember agency. The Court's only instrument,
however, is a blunt one. We have “the negative power to

238 SEILA
LAW LLC v. CONSUMER FINANCIAL
PROTECTION BUREAU
Opinion of Thomas, J.
disregard an unconstitutional enactment,” Massachusetts v.
Mell
on, 262 U. S. 447, 488 (1923); see Marbury v. Madison,
1 Cranch 137, 178 (1803), but we cannot rewrite Congress's
work by creating offces, terms, and the like. “[S]uch edito-
rial freedom . . . belongs to the Legislature, not the Judi-
ciary.” Free Enterprise Fund, 561 U. S., at 510.
Because we fnd the Director's removal protection sever-
able from the other provisions of Dodd-Frank that establish
the CFPB, we remand for the Court of Appeals to consider
whether the civil investigative demand was validly ratifed.
***
A decade ago, we declined to extend Congress's authority
to limit the President's removal power to a new situation,
never before confronted by the Court. We do the same
today. In our constitutional system, the executive power
belongs to the President, and that power generally includes
the ability to supervise and remove the agents who wield
executive power in his stead. While we have previously up-
held limits on the President's removal authority in certain
contexts, we decline to do so when it comes to principal off-
cers who, acting alone, wield signifcant executive power.
The Constitution requires that such offcials remain depend-
ent on the President, who in turn is accountable to the
people.
The judgment of the United States Court of Appeals for
the Ninth Circuit is vacated, and the case is remanded for
further proceedings consistent with this opinion.
It is so ordered.
Justice Thomas, with whom Justice Gorsuch joins,
concurring in part and dissenting in part.
The Court's decision today takes a restrained approach on
the merits by limiting Humphrey's Executor v. United
States, 295 U. S. 602 (1935), rather than overruling it. At

Cite
as: 591 U. S. 197 (2020)
239
Opinion of Thomas, J.
the same time, the Court takes an aggressive approach on
se
verability by severing a provision when it is not necessary
to do so. I would do the opposite.
Because the Court takes a step in the right direction by
limiting Humphrey's Executor to “multimember expert
agencies that do not wield substantial executive power,”
ante, at 218 (emphasis added), I join Parts I, II, and III of its
opinion. I respectfully dissent from the Court's severability
analysis, however, because I do not believe that we should
address severability in this case.
I
The decision in Humphrey's Executor poses a direct
threat to our constitutional structure and, as a result, the
liberty of the American people. The Court concludes that it
is not strictly necessary for us to overrule that decision.
See ante, at 204, 215–219. But with today's decision, the
Court has repudiated almost every aspect of Humphrey's Ex-
ecutor. In a future case, I would repudiate what is left of
this erroneous precedent.
A
“The Constitution does not vest the Federal Government
with an undifferentiated `governmental power.' ” Depart-
ment of Transportation v. Association of American Rail-
roads, 575 U. S. 43, 67 (2015) (Thomas, J., concurring in judg-
ment). It sets out three branches and vests a different form
of power in each—legislative, executive, and judicial. See
Art. I, § 1; Art. II, § 1, cl. 1; Art. III, § 1.
Article II of the Constitution vests “[t]he executive
Power” in the “President of the United States of America,”
§ 1, cl. 1, and directs that he shall “take Care that the Laws
be faithfully executed,” § 3. Of course, the President cannot
fulfll his role of executing the laws without assistance. See
Myers v. United States, 272 U. S. 52, 117 (1926). He there-
fore must “select those who [are] to act for him under his
direction in the execution of the laws.” Ibid. While these

240 SEILA
LAW LLC v. CONSUMER FINANCIAL
PROTECTION BUREAU
Opinion of Thomas, J.
offcers assist the President in carrying out his constitution-
a
lly assigned duties, “[t]he buck stops with the President.”
Free Enterprise Fund v. Public Company Accounting Over-
sight Bd., 561 U. S. 477, 493 (2010). “Since 1789, the Consti-
tution has been understood to empower the President to
keep [his] offcers accountable—by removing them from of-
fce, if necessary.” Id., at 483. The Framers “insist[ed]”
upon “unity in the Federal Executive” to “ensure both vigor
and accountability” to the people. Printz v. United States,
521 U. S. 898, 922 (1997); see also ante, at 224.
Despite the defned structural limitations of the Constitu-
tion and the clear vesting of executive power in the Presi-
dent, Congress has increasingly shifted executive power to
a de facto fourth branch of Government—independent agen-
cies. These agencies wield considerable executive power
without Presidential oversight. They are led by offcers
who are insulated from the President by removal restric-
tions, “reduc[ing] the Chief Magistrate to [the role of]
cajoler-in-chief.” Free Enterprise Fund, 561 U. S., at 502.
But “[t]he people do not vote for the Offcers of the United
States. They instead look to the President to guide the as-
sistants or deputies subject to his superintendence.” Id., at
497–498 (alterations, internal quotation marks, and citation
omitted). Because independent agencies wield substantial
power with no accountability to either the President or the
people, they “pose a signifcant threat to individual liberty
and to the constitutional system of separation of powers and
checks and balances.” PHH Corp. v. CFPB, 881 F. 3d 75,
165 (CADC 2018) (Kavanaugh, J., dissenting).
Unfortunately, this Court “ha[s] not always been vigilant
about protecting the structure of our Constitution,” at times
endorsing a “more pragmatic, fexible approach” to our Gov-
ernment's design. Perez v. Mortgage Bankers Assn., 575
U. S. 92, 115–116 (2015) (Thomas, J., concurring in judgment)
(internal quotation marks omitted). Our tolerance of inde-
pendent agencies in Humphrey's Executor is an unfortunate

Cite
as: 591 U. S. 197 (2020)
241
Opinion of Thomas, J.
example of the Court's failure to apply the Constitution as
wr
itten. That decision has paved the way for an ever-
expanding encroachment on the power of the Executive, con-
trary to our constitutional design.
B
1
The lead up to Humphrey's Executor begins with this
Court's decision in Myers, 272 U. S. 52. Myers involved a
federal statute that prohibited the President from removing
certain postmasters except “by and with the advice and con-
sent of the Senate.” Id., at 107 (internal quotation marks
omitted). The question presented was “whether under the
Constitution the President has the exclusive power of remov-
ing executive offcers of the United States whom he has ap-
pointed by and with the advice and consent of the Senate.”
Id., at 106. In a 70-page opinion by Chief Justice Taft, the
Court held that the Constitution did vest such power in the
President.
The Court anchored its analysis in evidence from the
founding era. It acknowledged that the “subject [of re-
moval] was not discussed in the Constitutional Convention,”
id., at 109–110, but it reviewed in detail the First Congress'
vigorous debate about the removal of executive offcers in
what is known as the Decision of 1789, id., at 111–135.
1
In
the course of analyzing the Decision of 1789, the Court ex-
plained that Article II vests “the executive power of the
Government . . . in one person”—the President—and that the
executive power includes the authority to “select those who
[are] to act for him under his direction in the execution of the
laws.” Id., at 116–117. Reiterating the position of James
Madison and other Members of the First Congress, the Court
noted that allowing limits on the President's removal author-
1
For a comprehensive review of the Decision of 1789, see Prakash, New
Light on the Decision of 1789, 91 Cornell L. Rev. 1021 (2006).

242 SEILA
LAW LLC v. CONSUMER FINANCIAL
PROTECTION BUREAU
Opinion of Thomas, J.
ity would grant Congress “the means of thwarting the Exec-
utive
in the exercise of his great powers and in the bearing
of his great responsibility, by fastening upon him, as subordi-
nate executive offcers, men who by their ineffcient service
under him, by their lack of loyalty to the service, or by their
different views of policy, might make his taking care that the
laws be faithfully executed most diffcult or impossible.”
Id., at 131. After “devot[ing] much space to [the] discussion
and decision of the question of the Presidential power of re-
moval in the First Congress” as well as its understanding of
the executive power, id., at 136, the Court concluded that
“the power to remove offcers appointed by the President
and the Senate vested in the President alone,” id., at 114. It
repeatedly described this removal power as “unrestricted.”
Id., at 115, 134, 150, 172, 176.
The Court noted that the First Congress' understanding
of the removal question was quickly “accepted as a fnal deci-
sion of the question by all branches of the Government.”
Id., at 136. The decision was “affrmed by this Court in un-
mistakable terms.” Id., at 148, 152–153 (discussing Ex parte
Hennen, 13 Pet. 230, 259 (1839); Parsons v. United States,
167 U. S. 324, 330 (1897)). Presidents had “uniform[ly]”
adopted the First Congress' view “whenever an issue ha[d]
clearly been raised.” Myers, 272 U. S., at 169. And “Con-
gress, in a number of acts, followed and enforced the legisla-
tive decision of 1789 for seventy-four years.” Id., at 145.
While disputes with President Andrew Johnson over Recon-
struction led Congress to “enact legislation to curtail the
then acknowledged powers of the President,” id., at 165, the
Myers Court declined to give these politically charged acts
any weight, id., at 175–176.
After exhaustively analyzing the historical evidence, the
Court had “no hesitation in holding that [the First Congress']
conclusion [was] correct.” Id., at 176. Accordingly, the
Court held that “the provision of the law [at issue], by which
the unrestricted power of removal of frst class postmasters

Cite
as: 591 U. S. 197 (2020)
243
Opinion of Thomas, J.
is denied to the President, [was] in violation of the Constitu-
ti
on, and invalid.” Ibid.
2
Nine years after Myers, the Court decided Humphrey's
Executor. That case arose from the attempted removal of
Commissioner William Humphrey from the Federal Trade
Commission (FTC). In 1931, President Herbert Hoover ap-
pointed Humphrey to serve a 7-year term as one of the
FTC's five Commissioners. By all accounts, Humphrey
proved to be a controversial fgure. See Crane, Debunking
Humphrey's Executor, 83 Geo. Wash. L. Rev. 1835, 1841
(2015); Winerman, The FTC at Ninety: History Through
Headlines, 72 Antitrust L. J. 871, 878–879 (2005); Yoo, Cala-
bresi, & Nee, The Unitary Executive During the Third Half-
Century, 1889–1945, 80 Notre Dame L. Rev. 1, 64 (2004). He
reportedly “vowed not to approve any Commission action
that did not have as its goal to help business help itself,”
“threaten[ed] criminal prosecution against other commis-
sioners who publicly dissented,” and “called his fellow com-
missioners men drunk with their own greatness” when they
voted to initiate an investigation. Crane, supra, at 1841 (in-
ternal quotation marks omitted).
Less than two years into Humphrey's term, newly inaugu-
rated President Franklin D. Roosevelt wrote Humphrey a
letter, asking for his resignation. The President explained
that, in his view, “the aims and purposes of the Administra-
tion with respect to the work of the Commission [could] be
carried out most effectively with personnel of [his] own selec-
tion.” Humphrey's Executor, 295 U. S., at 618 (internal
quotation marks omitted). A little over a month after his
frst letter, President Roosevelt wrote Humphrey again to
ask for his resignation. The letter stated: “You will, I know,
realize that I do not feel that your mind and my mind go
along together on either the policies or the administering of
the [FTC], and, frankly, I think it is best for the people of
this country that I should have a full confdence.” Id., at

244 SEILA
LAW LLC v. CONSUMER FINANCIAL
PROTECTION BUREAU
Opinion of Thomas, J.
619 (internal quotation marks omitted). Humphrey declined
to
resign. In October 1933, President Roosevelt informed
Humphrey that he was removed from his position. Hum-
phrey did not comply, continuing “to insist that he was still
a member of the commission, entitled to perform its duties
and receive the compensation provided by law.” Ibid.
Four months later, Humphrey died. The executor of his
estate brought suit in the Court of Claims, seeking to re-
cover Humphrey's salary from the date of his removal until
the date of his death. The Court of Claims certifed two
questions to this Court: (1) whether § 1 of the Federal Trade
Commission Act of 1914, ch. 311, 38 Stat. 717, prohibited the
President from removing FTC Commissioners except for
“ineffciency, neglect of duty, or malfeasance in offce,” and
(2) if so, whether that restriction was constitutional. 295
U. S., at 619 (internal quotation marks omitted).
The Court answered both of these questions in favor of
Humphrey's estate. It frst held that the FTC Act “limit[ed]
the executive power of removal to the causes enumerated”
therein—ineffciency, neglect of duty, or malfeasance in of-
fce. Id., at 626. In the Court's view, this construction of
the Act was clear from “the face of the statute” and “the
character of the commission,” id., at 624, which the Court
described as a “body of experts” that operates “independent
of executive authority . . . and free to exercise its judgment
without the leave or hindrance of any other offcial,” id.,
at 625–626.
Then, notwithstanding the text of Article II of the Consti-
tution and the decision in Myers, the Court held that the
Act's restriction on the President's authority to remove Com-
missioners was constitutional. The Court acknowledged
that the “recently decided” Myers decision had “fully re-
view[ed] the general subject of the power of executive re-
moval” and “examine[d] at length the historical, legislative
and judicial data bearing upon the question.” Humphrey's
Executor, 295 U. S., at 626. And it conceded that executive

Cite
as: 591 U. S. 197 (2020)
245
Opinion of Thomas, J.
offcers are “subject to the exclusive and illimitable power of
remova
l by the Chief Executive.” Id., at 627; see also id.,
at 631 (recognizing “the President's illimitable power of
removal” over executive offcers).
2
The Court, however,
claimed that “[t]he offce of a postmaster is so essentially
unlike the offce [of an FTC Commissioner] that the decision
in the Myers case [could not] be accepted as controlling.”
Id., at 627. In the Court's view, unlike the postmaster in
Myers, FTC Commissioners did not qualify as “purely execu-
tive offcers.” 295 U. S., at 632.
The Court grounded its analysis in its assertion that the
FTC “occupies no place in the executive department and . . .
exercises no part of the executive power vested by the Con-
stitution in the President.” Id., at 628. Rather, in the
Court's view, by “flling in and administering the details
embodied by [the FTC Act's] general standard[,] the commis-
sion act[ed] in part quasi-legislatively and in part quasi-
judicially.” Ibid. The Court stated that the FTC acted “as
a legislative agency” by “making investigations and reports
thereon for the information of Congress” and acted “as an
agency of the judiciary” when performing its role “as a mas-
ter in chancery under rules prescribed by the court.” Ibid.
“Such a body,” the Court explained, “cannot in any proper
sense be characterized as an arm or an eye of the execu-
tive.” Ibid.
After distinguishing “purely executive offcers” from off-
cers exercising “quasi-legislative or quasi-judicial powers,”
2
The explicit and repeated recognition of the President's “illimitable
power” in Humphrey's Executor highlights the dissent's error in claiming
that Humphrey's Executor “abandoned [the] view” set out in Myers v.
United States, 272 U. S. 52 (1926). Post, at 277 (Kagan, J., concurring in
judgment with respect to severability and dissenting in part) (herein-
after dissent). Humphrey's Executor did not abandon Myers; it distin-
guished Myers based on the fawed premise that the FTC exercised
“quasi-legislative” and “quasi-judicial” power that is not part of “the exec-
utive power vested by the Constitution in the President.” Humphrey's
Executor, 295 U. S., at 628; see also in fra, at 246–248.

246 SEILA
LAW LLC v. CONSUMER FINANCIAL
PROTECTION BUREAU
Opinion of Thomas, J.
ibid., the Court held that “[w]hether the power of the Presi-
dent
to remove an offcer shall prevail over the authority of
Congress to condition the power by . . . precluding a removal
except for cause, will depend upon the character of the of-
fce,” id., at 631. “[P]urely executive offcers” are subject to
the President's “unrestrictable power . . . to remove.” Id.,
at 632. But with regard to “quasi-legislative” and “quasi-
judicial” offcers, the Court concluded that “no removal
[could] be made . . . except for one or more of the causes
named.” Ibid.
3
Humphrey's Executor laid the foundation for a fundamen-
tal departure from our constitutional structure with nothing
more than handwaving and obfuscating phrases such as
“quasi-legislative” and “quasi-judicial.” Unlike the thor-
ough analysis in Myers, the Court's thinly reasoned decision
is completely “devoid of textual or historical precedent for
the novel principle it set forth.” Morrison v. Olson, 487
U. S. 654, 726 (1988) (Scalia, J., dissenting). The exceptional
weakness of the reasoning could be a product of the circum-
stances under which the case was decided—in the midst of a
bitter standoff between the Court and President Roose-
velt
3
—or it could be just another example of this Court de-
3
A number of historical sources indicate that President Roosevelt saw
Humphrey's Executor v. United States, 295 U. S. 602 (1935), as an attack
on his administration. Given the Court's recent decision in Myers, the
Roosevelt administration was reportedly “stunned” by the Court's decision
in Humphrey's Executor, and the President was particularly annoyed that
the decision “ma[de] it appear that he had been willfully violating the
Constitution. ” See W. Leuchtenburg, The Supreme Court Reborn 78
(1995). Justice Jackson, who was serving in the Roosevelt administration
at the time, stated in an interview that “ `the decision that made Roosevelt
madder at the Court than any other decision was that . . . little case of
Humphrey's Executor v. United States. The President thought they
went out of their way to spite him personally.' ” E. Gerhart, America's
Advocate: Robert H. Jackson 99 (1958) (quoting 1949 interview with Jus-
tice Jackson).

Cite
as: 591 U. S. 197 (2020)
247
Opinion of Thomas, J.
parting from the strictures of the Constitution for a “more
prag
matic, fexible approach” to our government's design.
Perez, 575 U. S., at 116 (opinion of Thomas, J.) (internal
quotation marks omitted). But whatever the motivation,
Humphrey's Execu t o r does not compor t w ith the
Constitution.
Humphrey's Executor relies on one key premise: the no-
tion that there is a category of “quasi-legislative” and “quasi-
judicial” power that is not exercised by Congress or the Judi-
ciary, but that is also not part of “the executive power vested
by the Constitution in the President.” Humphrey's Execu-
tor, supra, at 628. Working from that premise, the Court
distinguished the “illimitable” power of removal recognized
in Myers, Humphrey's Executor, 295 U. S., at 627–628, and
upheld the FTC Act's removal restriction, while simultane-
ously acknowledging that the Constitution vests the Presi-
dent with the entirety of the executive power, id., at 628.
The problem is that the Court's premise was entirely
wrong. The Constitution does not permit the creation of of-
fcers exercising “quasi-legislative” and “quasi-judicial pow-
ers” in “quasi-legislative” and “quasi-judicial agencies.” Id.,
at 628–629. No such powers or agencies exist. Congress
lacks the authority to delegate its legislative power, Whit-
man v. American Trucking Assns., Inc., 531 U. S. 457, 472
(2001), and it cannot authorize the use of judicial power by
offcers acting outside of the bounds of Article III, Stern v.
Marshall, 564 U. S. 462, 484 (2011). Nor can Congress cre-
ate agencies that straddle multiple branches of Government.
The Constitution sets out three branches of Government and
provides each with a different form of power—legislative,
executive, and judicial. See Art. I, § 1; Art. II, § 1, cl. 1;
Art. III, § 1. Free-foating agencies simply do not comport
with this constitutional structure. “[A]gencies have been
called quasi-legislative, quasi-executive or quasi-judicial, as
the occasion required, in order to validate their functions
within the separation-of-powers scheme of the Constitution.”

248 SEILA
LAW LLC v. CONSUMER FINANCIAL
PROTECTION BUREAU
Opinion of Thomas, J.
FTC v. Ruberoid Co., 343 U. S. 470, 487 (1952) (Jackson, J.,
dissenti
ng). But “[t]he mere retreat to the qualifying `quasi'
is implicit with confession that all recognized classifcations
have broken down, and `quasi' is a smooth cover which we
draw over our confusion as we might use a counterpane to
conceal a disordered bed.” Id., at 487–488.
That is exactly what happened in Humphrey's Executor.
The Court upheld the FTC Act's removal restriction by
using the “quasi” label to support its claim that the FTC
“exercise[d] no part of the executive power vested by the
Constitution in the President. ” Humphrey's Executor,
supra, at 628. But “it is hard to dispute that the powers of
the FTC at the time of Humphrey's Executor would at the
present time be considered `executive,' at least to some de-
gree.” Morrison, supra, at 690, n. 28; see ante, at 216, n. 2;
see post, at 278, n. 7 (Kagan, J., concurring in judgment with
respect to severability and dissenting in part).
C
Today's decision constitutes the latest in a series of cases
that have signifcantly undermined Humphrey's Executor.
First, in Morrison, the Court repudiated the reasoning of
the decision. 487 U. S., at 689. Then, in Free Enterprise
Fund, we returned to the principles set out in the “landmark
case of Myers.” 561 U. S., at 492. And today, the Court
rightfully limits Humphrey's Executor to “multimember ex-
pert agencies that do not wield substantial executive power.”
Ante, at 218. After these decisions, the foundation for
Humphrey's Executor is not just shaky. It is nonexistent.
This Court's repudiation of Humphrey's Executor began
with its decision in Morrison. There, the Court upheld a
statute insulating an independent counsel from removal by
the Attorney General absent a showing of “good cause.”
Morrison, supra, at 659–660. In doing so, the Court set
aside the reasoning of Humphrey's Executor. It recognized
that Humphrey's Executor “rel[ied] on the terms `quasi-

Cite
as: 591 U. S. 197 (2020)
249
Opinion of Thomas, J.
legislative' and `quasi-judicial' to distinguish the offcials in-
volved
in Humphrey's Executor . . . from those in Myers.”
487 U. S., at 689. But it then immediately stated that
its “present considered view is that the determination of
whether the Constitution allows Congress to impose a `good
cause'-type restriction on the President's power to remove
an offcial cannot be made to turn on whether or not that
offcial is classifed as `purely executive.' ” Ibid. The Court
also rejected Humphrey's Executor's conclusion that the
FTC did not exercise executive power, stating that “the
powers of the FTC at the time of Humphrey's Executor
would at the present time be considered `executive.' ” Mor-
rison, supra, at 690, n. 28. The lone dissenter, Justice
Scalia, disagreed with much of the Court's analysis but noted
that the Court had rightfully “swept” Humphrey's Executor
“into the dustbin of repudiated constitutional principles.”
487 U. S., at 725. Thus, all Members of the Court who
heard Morrison rejected the core rationale of Humphrey's
Executor.
The reasoning of the Court's decision in Free Enterprise
Fund created further tension (if not outright confict) with
Humphrey's Execu t o r. In Free En te r p r ise Fund, the
Court concluded that a dual layer of for-cause removal re-
strictions for members of the Public Company Accounting
Oversight Board violated the Constitution. In its analysis,
the Court recognized that allowing offcers to “execute the
laws” beyond the President's control “is contrary to Article
II's vesting of the executive power in the President.” 561
U. S., at 496 (emphasis added). The Court acknowledged
that “the executive power include[s] a power to oversee exec-
utive offcers through removal.” Id., at 492. And it ex-
plained that, without the power of removal, the President
cannot “be held fully accountable” for the exercise of the
executive power, “ `greatly diminish[ing] the intended and
necessary responsibility of the chief magistrate himself.' ”
Id., at 514 (quoting The Federalist No. 70, p. 478 (J. Cooke ed.

250 SEILA
LAW LLC v. CONSUMER FINANCIAL
PROTECTION BUREAU
Opinion of Thomas, J.
1961) (A. Hamilton)). Accountability, the Court repeatedly
emphasi
zed, plays a central role in our constitutional struc-
ture. See, e. g., Free Enterprise Fund, 561 U. S., at 498
(“[E]xecutive power without the Executive's oversight . . .
subverts the President's ability to ensure that the laws are
faithfully executed—as well as the public's ability to pass
judgment on his efforts”); id., at 513 (“The Constitution that
makes the President accountable to the people for executing
the laws also gives him the power to do so”). Humphrey's
Executor is at odds with every single one of these principles:
It ignores Article II's Vesting Clause, sidesteps the Presi-
dent's removal power, and encourages the exercise of execu-
tive power by unaccountable offcers. The reasoning of the
two decisions simply cannot be reconciled.
Finally, today's decision builds upon Morrison and Free
Enterprise Fund, further eroding the foundation of Hum-
phrey's Executor. The Court correctly notes that “[t]he
entire `executive Power' belongs to the President alone.”
Ante, at 213. The President therefore must have “power
to remove—and thus supervise—those who wield executive
power on his behalf.” Ante, at 204. As a result, the Court
concludes that Humphrey's Executor must be limited to
“multimember expert agencies that do not wield substantial
executive power.” Ante, at 218 (emphasis added). And, at
the same time, it recognizes (as the Court did in Morrison)
that “[t]he Court's conclusion that the FTC did not exercise
executive power has not withstood the test of time.” Ante,
at 216, n. 2. In other words, Humphrey's Executor does not
even satisfy its own exception.
In light of these decisions, it is not clear what is left of
Humphrey's Executor's rationale.
4
But if any remnant of
4
The dissent, while vigorously defending the holding of Humphrey's Ex-
ecutor, can muster no defense for the reasoning of the decision. The dis-
sent does not defend the notion of “quasi” powers or “quasi” agencies,
recognizing that the power exercised by the FTC was executive power.
See post, at 278, n. 7. And, in 38 pages, it cannot explain how any aspect

Cite
as: 591 U. S. 197 (2020)
251
Opinion of Thomas, J.
that decision is still standing, it certainly is not enough to
justi
fy the numerous, unaccountable independent agencies
that currently exercise vast executive power outside the
bounds of our constitutional structure.
***
Continued reliance on Humphrey's Executor to justify the
existence of independent agencies creates a serious, ongoing
threat to our Government's design. Leaving these unconsti-
tutional agencies in place does not enhance this Court's legit-
imacy; it subverts political accountability and threatens indi-
vidual liberty. We have a “responsibility to `examin[e]
without fear, and revis[e] without reluctance,' any `hasty and
crude decisions' rather than leaving `the character of [the]
law impaired, and the beauty and harmony of the [Ameri-
can constitutional] system destroyed by the perpetuity of
error.' ” Gamble v. United States, 587 U. S. 678, 716 (2019)
(Thomas, J., concurring) (quoting 1 J. Kent, Commentaries
on American Law 444 (1826); some alterations in original).
We simply cannot compromise when it comes to our Govern-
ment's structure. Today, the Court does enough to resolve
this case, but in the future, we should reconsider Hum-
phrey's Executor in toto. And I hope that we will have the
will to do so.
II
While I think that the Court correctly resolves the merits
of the constitutional question, I do not agree with its decision
of Humphrey's Executor (other than its holding) survived Morrison v.
Olson, 487 U. S. 654 (1988), and Free Enterprise Fund v. Public Company
Accounting Oversight Bd., 561 U. S. 477 (2010). Instead, the dissent sim-
ply claims that Humphrey's Executor was “extended” and “clarifed” in
Morrison, post, at 279, attempting to breathe validity into Humphrey's
Executor through the Court's Morrison decision. But the dissent's read-
ing of Morrison as “extend[ing] Humphrey's domain” is baffing. Post,
at 279. Morrison expressly repudiated the substantive reasoning of
Humphrey's Executor. See supra, at 248–249.

252 SEILA
LAW LLC v. CONSUMER FINANCIAL
PROTECTION BUREAU
Opinion of Thomas, J.
to sever the removal restriction in 12 U. S. C. § 5491(c)(3).
See
ante, at 232–238 (plurality opinion); post, at 296–297. To
resolve this case, I would simply deny the Consumer Finan-
cial Protection Bureau (CFPB) petition to enforce the civil
investigative demand.
A
Article III of the Constitution vests “[t]he judicial Power
of the United States” in the “supreme Court” and the lower
federal courts established by Congress. § 1. “[T]he judi-
cial power is, fundamentally, the power to render judgments
in individual cases” or controversies that are properly before
the court. Murphy v. National Collegiate Athletic Assn.,
584 U. S. 453, 488 (2018) (Thomas, J., concurring); see also
Plaut v. Spendthrift Farm, Inc., 514 U. S. 211, 219 (1995)
(“ `[A] “judicial Power” is one to render dispositive judg-
ments' ”); Baude, The Judgment Power, 96 Geo. L. J. 1807,
1815–1816 (2008). “[T]he power exercised is that of ascer-
taining and declaring the law applicable to the controversy.”
Massachusetts v. Mellon, 262 U. S. 447, 488 (1923). In the
context of a constitutional challenge, “[i]t amounts to little
more than the negative power to disregard an unconstitu-
tional enactment.” Ibid.; see also Mitchell, The Writ-of-
Erasure Fallacy, 104 Va. L. Rev. 933, 936 (2018). Thus, if a
party argues that a statute and the Constitution confict,
“then courts must resolve that dispute and . . . follow the
higher law of the Constitution.” Murphy, 584 U. S., at 488
(Thomas, J., concurring).
Consistent with this understanding, “[e]arly American
courts did not have a severability doctrine.” Ibid. (citing
Walsh, Partial Unconstitutionality, 85 N. Y. U. L. Rev. 738,
769 (2010)). If a statute was unconstitutional, the court
would just decline to enforce the statute in the case before
it. 584 U. S., at 488 (Thomas, J., concurring). That was the
end of the matter. “[T]here was no `next step' in which [a]
cour[t]” severed portions of a statute. Walsh, supra, at 777.

Cite
as: 591 U. S. 197 (2020)
253
Opinion of Thomas, J.
Our modern severability precedents create tension with
th
is historic practice. Instead of declining to enforce an un-
constitutional statute in an individual case, this Court has
stated that courts must “seve[r] and excis[e]” portions of
a statute to “remedy” the constitutional problem. United
States v. Booker, 543 U. S. 220, 245 (2005); Alaska Airlines,
Inc. v. Brock, 480 U. S. 678, 686 (1987). The Court's rhetoric
when discussing severance implies that a court's decision to
sever a provision “formally suspend[s] or erase[s it], when
[the provision] actually remains on the books as a law.”
Mitchell, supra, at 1017. The Federal Judiciary does not
have the power to excise, erase, alter, or otherwise strike
down a statute. Murphy, supra, at 489 (Thomas, J., concur-
ring); Mitchell, supra, at 936. And the Court's reference to
severability as a “remedy” is inaccurate. Traditional reme-
dies—like injunctions, declarations, or damages—“ `operate
with respect to specifc parties,' not `on legal rules in the
abstract.' ” Murphy, supra, at 489 (Thomas, J., concurring)
(quoting Harrison, Severability, Remedies, and Constitu-
tional Adjudication, 83 Geo. Wash. L. Rev. 56, 85 (2014)).
Because the power of judicial review does not allow courts
to revise statutes, Mitchell, supra, at 983, the Court's sever-
ability doctrine must be rooted in statutory interpretation.
But, even viewing severability as an interpretive question,
I remain skeptical of our doctrine. As I have previously
explained, “the severability doctrine often requires courts to
weigh in on statutory provisions that no party has standing
to challenge, bringing courts dangerously close to issuing ad-
visory opinions.” Murphy, 584 U. S., at 490 (concurring
opinion). And the application of the doctrine “does not follow
basic principles of statutory interpretation.” Id., at 489.
Instead of determining the meaning of a statute's text, sever-
ability involves “nebulous inquir[ies] into hypothetical con-
gressional intent.” Booker, supra, at 320, n. 7 (Thomas, J.,
dissenting in part).

254 SEILA
LAW LLC v. CONSUMER FINANCIAL
PROTECTION BUREAU
Opinion of Thomas, J.
B
Consistent
with the traditional understanding of the ju-
dicial power, I would deny CFPB's petition to enforce the
civil investigative demand that it issued to Seila. See
§ 5562(e)(1). Seila “challenge[d] the validity of both the civil
investigative demand and the ensuing enforcement action.”
Reply Brief for Petitioner 5. Seila has not countersued or
sought affrmative relief preventing the CFPB from acting in
the future; it simply asks us to “reverse the court of appeals'
judgment.” Brief for Petitioner 35. I would do just that.
As the Court recognizes, the enforcement of a civil investiga-
tive demand by an offcial with unconstitutional removal pro-
tection injures Seila. See ante, at 211. Presented with an
enforcement request from an unconstitutionally insulated Di-
rector, I would simply deny the CFPB's petition for an order
of enforcement. This approach would resolve the dispute
before us without addressing the issue of severability.
The Court, however, does more. In the plurality's view,
5
because the CFPB raised a ratifcation argument before the
Court of Appeals, we can (and should) reach the question of
severability. See ante, at 232–233. But as explained more
fully below, resolving this question is wholly unnecessary.
Regardless of whether the CFPB's ratifcation theory is
valid, the Court of Appeals on remand must reach the same
outcome: The CFPB's civil investigative demand cannot be
enforced against Seila.
The ratifcation argument presented by the CFPB is quite
simple. Since its creation in 2010, the CFPB has had three
Directors—frst Director Richard Cordray, then Acting Di-
rector Mick Mulvaney, and now Director Kathleen Kran-
inger. The CFPB's frst Director, Director Cordray, issued
a civil investigative demand to Seila and initiated the en-
5
The dissent provides no analysis of severability, simply stating “if the
agency's removal provision is unconstitutional, it should be severed.”
Post, at 297.

Cite
as: 591 U. S. 197 (2020)
255
Opinion of Thomas, J.
forcement action. The CFPB has conceded that these ac-
ti
ons were unconstitutional. But, in the Ninth Circuit, the
CFPB argued that the investigative demand was ratifed by
Acting Director Mulvaney, who it claimed was not insulated
by the removal provision. Brief for Appellee in No. 17–
56324, pp. 13–19. In the CFPB's view, the President could
remove Acting Director Mulvaney at will because the “re-
moval provision by its terms applies only to `the Director,'
not to an Acting Director,” and the Federal Vacancy Reform
Act “does not limit the President's ability to designate a dif-
ferent person as Acting Director.” Id., at 14. Based on
this ratifcation theory, the CFPB asked the Ninth Circuit to
affrm the District Court's order granting the CFPB's peti-
tion to enforce its investigative demand.
The CFPB does not ask this Court to address ratifcation
on the merits, but it does rely on its unresolved ratifcation
theory to assert that the Court should reach severability.
In doing so, the CFPB relies on the same theory that it pre-
sented to the Ninth Circuit. Thus, the only live ratifcation
claim is the theory that Acting Director Mulvaney ratifed
the civil investigative demand. See ante, at 232–233.
6
The resolution of the CFPB's Acting-Director ratifcation
theory, however, has no bearing on the outcome of the dis-
pute before us and therefore provides no basis for addressing
severability. If the Acting Director did not ratify the inves-
tigative demand, then there is obviously no need to address
severability. And even if he did, the Court still does not
need to address severability because the alleged ratifcation
does not cure the constitutional injury—enforcement of an
6
The Court-appointed amicus suggests that the CFPB's current Direc-
tor, Director Kraninger, ratifed the enforcement proceeding by maintain-
ing the suit after she stated her belief that the removal provision is uncon-
stitutional. But the CFPB expressly disclaimed the notion that Director
Kraninger had the power to ratify the civil investigative demand, stating
that she “remains statutorily insulated from removal, regardless whether
she believes the law is invalid.” Reply Brief for Respondent 7.

256 SEILA
LAW LLC v. CONSUMER FINANCIAL
PROTECTION BUREAU
Opinion of Thomas, J.
investigative demand by an unconstitutionally insulated Di-
rec
tor. Seila “challenge[d] the validity of both the civil in-
vestigative demand and the ensuing enforcement action.”
Reply Brief for Petitioner 5 (emphasis added). Acting Di-
rector Mulvaney may (or may not) have properly ratifed the
issuance of the investigative demand and the initiation of the
enforcement proceedings. But he certainly could not ratify
the continuance of the enforcement action by his successor,
Director Kraninger. Id., at 7. Thus, even if the CFPB's
ratifcation theory is valid, Seila still has an injury: It has
been (and continues to be) subjected to enforcement of an
investigative demand by Director Kraninger, who “remains
statutorily insulated from removal.” Reply Brief for Re-
spondent 7; see also Free Enterprise Fund, 561 U. S., at 513;
ante, at 211–212. Thus, we should decline to enforce the
civil investigative demand against Seila. See supra, at 252.
Ultimately, I cannot see how the resolution of the sever-
ability question affects the dispute before us. And even if
severability could affect this case in some hypothetical sce-
nario, I would not reach out to resolve the issue given
my grow i ng discomfor t w ith our current severabi l ity
precedents.
C
Confdent that it can address the question of severability,
the plurality moves on to conduct its analysis. It starts by
pointing to the severability clause in the Dodd-Frank Act.
See ante, at 235–236. That clause states: “If any provision
of this Act, an amendment made by this Act, or the applica-
tion of such provision or amendment to any person or circum-
stance is held to be unconstitutional, the remainder of this
Act, the amendments made by this Act, and the application
of the provisions of such to any person or circumstance shall
not be affected thereby.” § 5302. The plurality states that
“[i]f the Director were removable at will by the President,
the constitutional violation would disappear.” Ante, at 234.
Then, relying on language in the severability clause, it con-

Cite
as: 591 U. S. 197 (2020)
257
Opinion of Thomas, J.
cludes that the removal provision, § 5491(c)(3), should be
se
vered.
The plurality suggests that its analysis is a matter of sim-
ply enforcing the “plain language” of the severability clause.
See ante, at 235. But I am not sure it is that simple. For
one, the plurality does not actually analyze the statutory lan-
guage.
7
Second, the analysis the plurality does provide
looks nothing like traditional statutory interpretation. Gen-
erally, when we interpret a statute, we do not hold that the
text sets out a “presum[ption]” that can be rebutted by look-
ing to atextual evidence of legislative intent. Ante, at 234.
A text-based interpretation does not allow a free-ranging
inquiry into what “ `Congress, faced with the limitations im-
posed by the Constitution, would have preferred' ” had it
known of a constitutional issue. Ibid. (quoting Free Enter-
prise Fund, supra, at 509). Nor does it consider whether
Congress would have wanted to avoid “a major regulatory
disruption.” Ante, at 237. Statutory interpretation fo-
cuses on the text.
7
The severability clause refers to three alternative scenarios: (1) a “pro-
vision of [the] Act . . . is held to be unconstitutional”; (2) “an amendment
made by [the] Act . . . is held to be unconstitutional”; and (3) “the applica-
tion of [a] provision or amendment [of the Act] to any person or circum-
stance is held to be unconstitutional.” 12 U. S. C. § 5302. The plurality
assumes, with no analysis, that this case falls in the frst scenario, calling
for a provision to be severed from the Dodd-Frank Act. See ante, at 235.
But, as discussed below, there is no single “provision” of the Act that has
led to the constitutional injury in this case. See in fra, at 258. It is the
attempted enforcement of a civil investigative demand under § 5562(e)(1)
by an unconstitutionally insulated Director that causes the constitutional
injury in this case. There is at least a nonfrivolous argument that this
case i mplicates the th ird scenari o contemplated by the severabi lity
clause—i. e., “the application of [a] provision” in a certain “circumstance.”
§ 5302. If that were so, the text of the severability clause would not re-
quire any “provision” to be severed; the unconstitutional application of
§ 5562(e)(1) simply would not affect other provisions of the Dodd-Frank
Act. Such a reading would be consistent with the traditional limits on
the judicial power. See supra, at 252–253.

258 SEILA
LAW LLC v. CONSUMER FINANCIAL
PROTECTION BUREAU
Opinion of Thomas, J.
Even treating the question as a matter of pure statutory
i
nterpretation and assuming that the plurality points to the
correct language, the text of the severability clause cannot,
in isolation, justify severance of the removal provision. In
some instances, a constitutional injury arises as a result of
two or more statutory provisions operating together. See,
e. g., Free Enterprise Fund, supra, at 509 (stating that the
convergence of “a number of statutory provisions” produce a
constitutional violation); Booker, 543 U. S., at 316–317 (opin-
ion of Thomas, J.) (explaining that “the concerted action of
[18 U. S. C.] § 3553(b)(1) and the operative Guidelines and the
relevant Rule of Criminal Procedure resulted in unconstitu-
tional judicial factfnding ”); Lea, Situation Severability, 103
Va. L. Rev. 735, 778–780 (2017) (discussing statutory conver-
gences). That is precisely the situation we have in this case.
As in Free Enterprise Fund, the provision requiring “good-
cause removal is only one of [the] statutory provisions that,
working together, produce a constitutional violation.” 561
U. S., at 509. The constitutional violation results from, at
a minimum, the combination of the removal provision, 12
U. S. C. § 5491(c)(3), and the provision allowing the CFPB to
seek enforcement of a civil investigative demand, § 5562(e)(1).
When confronted with two provisions that operate together
to violate the Constitution, the text of the severability clause
provides no guidance as to which provision should be sev-
ered. Thus, we must choose, based on something other than
the severability clause, which provision to sever.
Without text to guide us, the severability inquiry moves
away from statutory interpretation and falls back on this
Court's questionable precedents. See Murphy, 584 U. S., at
489 – 491 (Thomas, J., concurr i ng). An ana lysis of the
Court's decisions in Booker and Free Enterprise Fund illus-
trates the Court's approach to determining which provision
to sever when confronting an injury caused by an unconstitu-
tional convergence of multiple statutory provisions.

Cite
as: 591 U. S. 197 (2020)
259
Opinion of Thomas, J.
In Booker, a Rule of Criminal Procedure, a subset of provi-
si
ons in the Sentencing Guidelines, and a statutory provision
operated together to require unconstitutional judicial fact-
findi ng. To deter mi ne wh ich aspec t of the sentenci ng
scheme to sever, the Court sought to divine “what Congress
would have intended in light of the Court's constitutional
holding.” Booker, 543 U. S., at 246 (internal quotation
marks omitted). The Court “recognize[d] that sometimes
severability questions . . . can arise [in the context of] a legis-
latively unforeseen constitutional problem.” Id., at 247.
But it nonetheless felt qualifed to craft a remedy that would
“move sentencing in Congress' preferred direction.” Id., at
264. Surprisingly, that “move” did not involve enforcing the
constitutional aspects of Congress' sentencing scheme. The
Court stated that “we cannot assume that Congress, if faced
with the statute's invalidity in key applications, would have
preferred to apply the statute in as many other instances as
possible.” Id., at 248.
8
Despite the fact that there were a
plethora of cases in which mandatory Sentencing Guidelines
would have posed no constitutional problem, the Court de-
cided to “sever and excise . . . the provision that requires
sentencing courts to impose a sentence within the applicable
Guidelines range,” along with another provision which was not
even at issue in the case. Id., at 259. In essence, the Court
crafted a new sentencing scheme, transforming the Sentenc-
ing Guidelines into an entirely discretionary system based on
its estimation that Congress would have wanted that result.
The Court in Free Enterprise Fund declined to explicitly
engage in Booker's free-wheeling inquiry into Congress' hy-
8
This statement in Booker is irreconcilable with the plurality's assertion
here that “Congress would prefer that we use a scalpel rather than a
bulldozer in curing the constitutional defect.” Ante, at 237. Thus, it ap-
pears that the plurality either sub silentio “junk[s] our settled severability
doctrine,” ibid., or invokes, without explanation, different assumptions for
different cases.

260 SEILA
LAW LLC v. CONSUMER FINANCIAL
PROTECTION BUREAU
Opinion of Thomas, J.
pothetical preferences, but it did not replace that inquiry
w
ith a clear standard. In that case, the Court held that a
“number of statutory provisions . . . , working together,
produce[d] a constitutional violation” similar to the violation
at issue here. Free Enterprise Fund, 561 U. S., at 509.
The Court decided to sever the Board's removal restriction.
It explicitly recognized that there were multiple ways to ad-
dress the constitutional injury, stating that the Court could,
for example, “blue-pencil a suffcient number of the Board's
responsibilities,” or “restrict the Board's enforcement pow-
ers.” Ibid. But it described these alternative options as
involving “editorial freedom—far more extensive than [the]
holding today—[that] belongs to the Legislature, not the Ju-
diciary.” Id., at 510. The Court did not explain, however,
why the option that it chose was not also “editorial freedom”
that belongs to the Legislature or why the alternatives in-
volved “more extensive” “editorial freedom” than its pre-
ferred option. Ibid. The most that the Court provided was
a suggestion that fewer provisions would have to be severed
under its approach. Id., at 509–510.
Today's plurality opinion provides no further guidance.
In fact, the plurality does not even recognize that it has made
a choice between the provisions that cause the constitutional
injury. It merely states that “[i]f the Director were remov-
able at will by the President, the constitutional violation
would disappear.” Ante, at 234. Fair enough. But if the
Director lacked executive authority under the statute to
seek enforcement of a civil investigative demand, § 5562(e)(1),
the constitutional violation in this case would also disappear.
The plurality thus chooses which of the provisions to sever.
In short, when multiple provisions of law combine to cause
a constitutional injury, the Court's current approach allows
the Court to decide which provision to sever. The text of
a severability clause does not guide that choice. Nor does
the practice of early American courts. See supra, at 252.

Cite
as: 591 U. S. 197 (2020)
261
Opinion of Kagan, J.
The Court is thus left to choose based on nothing more than
specu
lation as to what the Legislature would have preferred.
And the result of its choice can have a dramatic effect on
the governing statutory scheme. See Booker, supra, at 259
(converting the entirety of the Sentencing Guidelines from a
mandatory to a discretionary system). This is not a simple
matter of following the “plain language” of a statute. Ante,
at 235. It is incumbent on us to take a close look at our
precedents to make sure that we are not exceeding the scope
of the judicial power.
***
Given my concerns about our modern severability doctrine
and the fact that severability makes no difference to the
dispute before us, I would resolve this case by simply deny-
ing the CFPB's petition to enforce the civil investigative
demand.
Justice Kagan, with whom Justice Ginsburg, Justice
Breyer, and Justice Sotomayor join, concurring in the
judgment with respect to severability and dissenting in part.
Throughout the Nation's history, this Court has left most
decisions about how to structure the Executive Branch to
Congress and the President, acting through legislation they
both agree to. In particular, the Court has commonly al-
lowed those two branches to create zones of administrative
independence by limiting the President's power to remove
agency heads. The Federal Reserve Board. The Federal
Trade Commission (FTC). The National Labor Relations
Board. Statute after statute establishing such entities in-
structs the President that he may not discharge their direc-
tors except for cause—most often phrased as ineffciency,
neglect of duty, or malfeasance in offce. Those statutes,
whose language the Court has repeatedly approved, provide
the model for the removal restriction before us today. If
precedent were any guide, that provision would have sur-

262 SEILA
LAW LLC v. CONSUMER FINANCIAL
PROTECTION BUREAU
Opinion of Kagan, J.
vived its encounter with this Court—and so would the in-
tended
independence of the Consumer Financial Protection
Bureau (CFPB).
Our Constitution and history demand that result. The
text of the Constitution allows these common for-cause re-
moval limits. Nothing in it speaks of removal. And it
grants Congress authority to organize all the institutions of
American governance, provided only that those arrange-
ments allow the President to perform his own constitution-
ally assigned duties. Still more, the Framers' choice to give
the political branches wide discretion over administrative of-
fces has played out through American history in ways that
have settled the constitutional meaning. From the frst,
Congress debated and enacted measures to create spheres
of administration—especially of fnancial affairs—detached
from direct presidential control. As the years passed, and
governance became ever more complicated, Congress contin-
ued to adopt and adapt such measures—confdent it had lati-
tude to do so under a Constitution meant to “endure for ages
to come.” McCulloch v. Maryland, 4 Wheat. 316, 415 (1819)
(approving the Second Bank of the United States). Not
every innovation in governance—not every experiment in
administrative independence—has proved successful. And
debates about the prudence of limiting the President's con-
trol over regulatory agencies, including through his removal
power, have never abated.
1
But the Constitution—both as
originally drafted and as practiced—mostly leaves disagree-
ments about administrative structure to Congress and the
President, who have the knowledge and experience needed
to address them. Within broad bounds, it keeps the
courts—who do not—out of the picture.
1
In the academic literature, compare, e. g., Kagan, Presidential Adminis-
tration, 114 Harv. L. Rev. 2245, 2331–2346 (2001) (generally favoring presi-
dential control over agencies), with, e. g., Strauss, Overseer, or “The De-
cider”? The President in Administrative Law, 75 Geo. Wash. L. Rev. 696,
704, 713–715 (2007) (generally favoring administrative independence).

Cite
as: 591 U. S. 197 (2020)
263
Opinion of Kagan, J.
The Court today fails to respect its proper role. It recog-
ni
zes that this Court has approved limits on the President's
removal power over heads of agencies much like the CFPB.
Agencies possessing similar powers, agencies charged with
similar missions, agencies created for similar reasons. The
majority's explanation is that the heads of those agencies fall
within an “exception”—one for multimember bodies and an-
other for inferior offcers—to a “general rule” of unrestricted
presidential removal power. Ante, at 215. And the major-
ity says the CFPB Director does not. That account, though,
is wrong in every respect. The majority's general rule does
not exist. Its exceptions, likewise, are made up for the occa-
sion—gerrymandered so the CFPB falls outside them. And
the distinction doing most of the majority's work—between
multimember bodies and single directors—does not respond
to the constitutional values at stake. If a removal provision
violates the separation of powers, it is because the measure
so deprives the President of control over an offcial as to
impede his own constitutional functions. But with or with-
out a for-cause removal provision, the President has at least
as much control over an individual as over a commission—
and possibly more. That means the constitutional concern
is, if anything, ameliorated when the agency has a single
head. Unwittingly, the majority shows why courts should
stay their hand in these matters. “Compared to Congress
and the President, the Judiciary possesses an inferior under-
standing of the realities of administration” and the way “po-
litical power[ ] operates.” Free Enterprise Fund v. Public
Company Accounting Oversight Bd., 561 U. S. 477, 523
(2010) (Breyer, J., dissenting).
In second-guessing the political branches, the majority
second-guesses as well the wisdom of the Framers and the
judgment of history. It writes in rules to the Constitution
that the drafters knew well enough not to put there. It re-
pudiates the lessons of American experience, from the 18th
century to the present day. And it commits the Nation to

264 SEILA
LAW LLC v. CONSUMER FINANCIAL
PROTECTION BUREAU
Opinion of Kagan, J.
a static version of governance, incapable of responding to
new
conditions and challenges. Congress and the President
established the CFPB to address fnancial practices that
had brought on a devastating recession, and could do so
again. Today's decision wipes out a feature of that agency
its creators thought fundamental to its mission—a measure
of independence from political pressure. I respectfully
dissent.
I
The text of the Constitution, the history of the country,
the precedents of this Court, and the need for sound and
adaptable governance—all stand against the majority's
opinion. They point not to the majority's “general rule” of
“unrestricted removal power” with two grudgingly applied
“exceptions.” Ante, at 215, 218. Rather, they bestow dis-
cretion on the legislature to structure administrative insti-
tutions as the times demand, so long as the President
retains the ability to carry out his constitutional duties.
And most relevant here, they give Congress wide leeway to
limit the President's removal power in the interest of enhan-
cing independence from politics in regulatory bodies like
the CFPB.
A
What does the Constitution say about the separation of
powers—and particularly about the President's removal au-
thority? (Spoiler alert: about the latter, nothing at all.)
The majority offers the civics class version of separation
of powers—call it the Schoolhouse Rock defnition of the
phrase. See Schoolhouse Rock! Three Ring Government
(Mar. 13, 1979), http://www.youtube.com/watch?v=pKSGyiT-
o3o (“Ring one, Executive. Two is Legislative, that's Con-
gress. Ring three, Judiciary”). The Constitution's first
three articles, the majority recounts, “split the atom of sov-
ereignty” among Congress, the President, and the courts.
Ante, at 223 (internal quotation marks omitted). And by that

Cite
as: 591 U. S. 197 (2020)
265
Opinion of Kagan, J.
mechanism, the Framers provided a “simple” fx “to govern-
ment
al power and its perils.” Ibid.
There is nothing wrong with that as a beginning (except
the adjective “simple”). It is of course true that the Fram-
ers lodged three different kinds of power in three different
entities. And that they did so for a crucial purpose—
because, as James Madison wrote, “there can be no liberty
where the legislative and executive powers are united in the
same person[ ] or body” or where “the power of judging [is]
not separated from the legislative and executive powers.”
The Federalist No. 47, p. 325 (J. Cooke ed. 1961) (quoting
Baron de Montesquieu).
The problem lies in treating the beginning as an ending
too—in failing to recognize that the separation of powers is,
by design, neither rigid nor complete. Blackstone, whose
work infuenced the Framers on this subject as on others,
observed that “every branch” of government “supports and
is supported, regulates and is regulated, by the rest.” 1 W.
Blackstone, Commentaries on the Laws of England 151
(1765). So as James Madison stated, the creation of distinct
branches “did not mean that these departments ought to
have no partial agency in, or no controul over the acts of
each other.” The Federalist No. 47, at 325 (emphasis de-
leted).
2
To the contrary, Madison explained, the drafters of
the Constitution—like those of then-existing state constitu-
tions—opted against keeping the branches of government
“absolutely separate and distinct.” Id., at 327. Or as Jus-
tice Story reiterated a half-century later: “[W]hen we speak
of a separation of the three great departments of govern-
ment,” it is “not meant to affrm, that they must be kept
wholly and entirely separate.” 2 J. Story, Commentaries
2
The principle of separation of powers, Madison continued, maintained
only that “where the whole power of one department is exercised by the
same hands which possess the whole power of another department, the
fundamental principles of a free constitution[ ] are subverted.” The Fed-
eralist No. 47, at 325–326.

266 SEILA
LAW LLC v. CONSUMER FINANCIAL
PROTECTION BUREAU
Opinion of Kagan, J.
on the Constitution of the United States § 524, p. 8 (1833).
Instead,
the branches have—as they must for the whole
arrangement to work—“common link[s] of connexion [and]
dependence.” Ibid.
One way the Constitution refects that vision is by giving
Congress broad authority to establish and organize the Exec-
utive Branch. Article II presumes the existence of “Off-
cer[s]” in “executive Departments.” § 2, cl. 1. But it does
not, as you might think from reading the majority opinion,
give the President authority to decide what kinds of off-
cers—in what departments, with what responsibilities—the
Executive Branch requires. See ante, at 213 (“The entire
`executive Power' belongs to the President alone”). In-
stead, Article I's Necessary and Proper Clause puts those
decisions in the legislature's hands. Congress has the power
“[t]o make all Laws which shall be necessary and proper for
carrying into Execution” not just its own enumerated powers
but also “all other Powers vested by this Constitution in the
Government of the United States, or in any Department or
Offcer thereof.” § 8, cl. 18. Similarly, the Appointments
Clause refects Congress's central role in structuring the Ex-
ecutive Branch. Yes, the President can appoint principal of-
fcers, but only as the legislature “shall . . . establish[ ] by
Law” (and of course subject to the Senate's advice and con-
sent). Art. II, § 2, cl. 2. And Congress has plenary power
to decide not only what inferior offcers will exist but also
who (the President or a head of department) will appoint
them. So as Madison told the frst Congress, the legislature
gets to “create[ ] the offce, defne[ ] the powers, [and] limit[ ]
its duration.” 1 Annals of Cong. 582 (1789). The President,
as to the construction of his own branch of government, can
only try to work his will through the legislative process.
3
3
Article II's Opinions Clause also demonstrates the possibility of limits
on the President's control over the Executive Branch. Under that Clause,
the President “may require the Opinion, in writing, of the principal Offcer
in each of the executive Departments, upon any Subject relating to the

Cite
as: 591 U. S. 197 (2020)
267
Opinion of Kagan, J.
The majority relies for its contrary vision on Article II's
V
esting Clause, see ante, at 213–214, 227, but the provision
can't carry all that weight. Or as Chief Justice Rehnquist
wrote of a similar claim in Morrison v. Olson, 487 U. S. 654
(1988), “extrapolat[ing]” an unrestricted removal power from
such “general constitutional language”—which says only that
“[t]he executive Power shall be vested in a President”—is
“more than the text will bear.” Id., at 690, n. 29. Dean
John Manning has well explained why, even were it not obvi-
ous from the Clause's “open-ended language.” Separation of
Powers as Ordinary Interpretation, 124 Harv. L. Rev. 1939,
1971 (2011). The Necessary and Proper Clause, he writes,
makes it impossible to “establish a constitutional violation
simply by showing that Congress has constrained the way
`[t]he executive Power' is implemented”; that is exactly what
the Clause gives Congress the power to do. Id., at 1967.
Only “a specifc historical understanding ” can bar Congress
from enacting a given constraint. Id., at 2024. And noth-
ing of that sort broadly prevents Congress from limiting the
President's removal power. I'll turn soon to the Decision of
1789 and other evidence of Post-Convention thought. See
infra, at 269–273. For now, note two points about practice
before the Constitution's drafting. First, in that era, Parlia-
ment often restricted the King 's power to remove royal off-
cers—and the President, needless to say, wasn't supposed
to be a king. See Birk, Interrogating the Historical Basis
for a Unitary Executive, 73 Stan. L. Rev. 175 (2021). Sec-
ond, many States at the time allowed limits on gubernatorial
removal power even though their constitutions had simi-
lar vesting clauses. See Shane, The Originalist Myth of
Duties of their respective Offces.” § 2, cl. 1. For those in the majority's
camp, that Clause presents a puzzle: If the President must always have
the direct supervisory control they posit, including by threat of removal,
why would he ever need a constitutional warrant to demand agency heads'
opinions? The Clause becomes at least redundant—though really, inexpli-
cable—under the majority's idea of executive power.

268 SEILA
LAW LLC v. CONSUMER FINANCIAL
PROTECTION BUREAU
Opinion of Kagan, J.
the Unitary Executive, 19 U. Pa. J. Const. L. 323, 334–344
(2016).
Historical understandings thus belie the majority's
“general rule.”
Nor can the Take Care Clause come to the majority's res-
cue. That Clause cannot properly serve as a “placeholder
for broad judicial judgments” about presidential control.
Goldsmith & Manning, The Protean Take Care Clause, 164
U. Pa. L. Rev. 1835, 1867 (2016); but see ante, at 213–214,
228–229, n. 11 (using it that way). To begin with, the provi-
sion—“he shall take Care that the Laws be faithfully exe-
cuted”—speaks of duty, not power. Art. II, § 3. New schol-
arship suggests the language came from English and colonial
oaths taken by, and placing fduciary obligations on, all man-
ner and rank of executive offcers. See Kent, Leib, & Shug-
erman, Faithful Execution and Article II, 132 Harv. L. Rev.
2111, 2121–2178 (2019). To be sure, the imposition of a duty
may imply a grant of power suffcient to carry it out. But
again, the majority's view of that power ill comports with
founding-era practice, in which removal limits were common.
See, e. g., Corwin, Tenure of Offce and the Removal Power
Under the Constitution, 27 Colum. L. Rev. 353, 385 (1927)
(noting that New York's Constitution of 1777 had nearly the
same clause, though the State's executive had “very little
voice” in removals). And yet more important, the text of the
Take Care Clause requires only enough authority to make sure
“the laws [are] faithfully executed”—meaning with fdelity to
the law itself, not to every presidential policy preference.
As this Court has held, a President can ensure “ `faithful exe-
cution' of the laws”—thereby satisfying his “take care” obli-
gation—with a removal provision like the one here. Mor-
rison, 487 U. S., at 692. A for-cause standard gives him
“ample authority to assure that [an offcial] is competently
performing [his] statutory responsibilities in a manner that
comports with the [relevant legislation's] provisions.” Ibid.
Finally, recall the Constitution's telltale silence: Nowhere
does the text say anything about the President's power to

Cite
as: 591 U. S. 197 (2020)
269
Opinion of Kagan, J.
remove subordinate offcials at will. The majority professes
unconcer
n. After all, it says, “neither is there a `separation
of powers clause' or a `federalism clause.' ” Ante, at 227.
But those concepts are carved into the Constitution's text—
the former in its frst three articles separating powers, the
latter in its enumeration of federal powers and its reserva-
tion of all else to the States. And anyway, at-will removal
is hardly such a “foundational doctrine[ ],” ibid.: You won't
fnd it on a civics class syllabus. That's because removal is
a tool—one means among many, even if sometimes an impor-
tant one, for a President to control executive offcials. See
generally Free Enterprise Fund, 561 U. S., at 524 (Breyer,
J., dissenting). To fnd that authority hidden in the Consti-
tution as a “general rule” is to discover what is nowhere
there.
B
History no better serves the majority's cause. As Madi-
son wrote, “a regular course of practice” can “liquidate &
settle the meaning of ” disputed or indeterminate constitu-
tional provisions. Letter to Spencer Roane (Sept. 2, 1819),
in 8 Writings of James Madison 450 (G. Hunt ed. 1908); see
NLRB v. Noel Canning, 573 U. S. 513, 525 (2014). The ma-
jority lays claim to that kind of record, asserting that its
muscular view of “[t]he President's removal power has long
been confrmed by history.” Ante, at 214. But that is not
so. The early history—including the fabled Decision of
1789—shows mostly debate and division about removal au-
thority. And when a “settle[ment of] meaning ” at last oc-
curred, it was not on the majority's terms. Instead, it sup-
ports wide latitude for Congress to create spheres of
administrative independence.
1
Begin with evidence from the Constitution's ratifcation.
And note that this moment is indeed the beginning: Del-
egates to the Constitutional Convention never discussed

270 SEILA
LAW LLC v. CONSUMER FINANCIAL
PROTECTION BUREAU
Opinion of Kagan, J.
whether or to what extent the President would have power
to
remove executive offcials. As a result, the Framers ad-
vocating ratifcation had no single view of the matter. In
Federalist No. 77, Hamilton presumed that under the new
Constitution “[t]he consent of [the Senate] would be neces-
sary to displace as well as to appoint” offcers of the United
States. Id., at 515. He thought that scheme would pro-
mote “steady administration”: “Where a man in any station
had given satisfactory evidence of his ftness for it, a new
president would be restrained” from substituting “a per-
son more agreeable to him.” Ibid. By contrast, Madison
thought the Constitution allowed Congress to decide how
any executive offcial could be removed. He explained in
Federalist No. 39: “The tenure of the ministerial offces gen-
erally will be a subject of legal regulation, conformably to
the reason of the case, and the example of the State Constitu-
tions.” Id., at 253. Neither view, of course, at all supports
the majority's story.
4
The second chapter is the Decision of 1789, when Congress
addressed the removal power while considering the bill cre-
ating the Department of Foreign Affairs. Speaking through
Chief Justice Taft—a judicial presidentialist if ever there
was one—this Court in Myers v. United States, 272 U. S. 52
(1926), read that debate as expressing Congress's judgment
that the Constitution gave the President illimitable power
to remove executive offcials. The majority rests its own
4
The majority dismisses Federalist Nos. 77 and 39 as “refect[ing] initial
impressions later abandoned.” Ante, at 227, and n. 10. But even Hamil-
ton's and Madison's later impressions are less helpful to the majority than
it suggests. Assuming Hamilton gave up on the Senate's direct participa-
tion in removal (the evidence is sketchy but plausible), there is no evidence
to show he accepted the majority's view. And while Madison opposed the
frst Congress's enactment of removal limits (as the majority highlights),
he also maintained that the legislature had constitutional power to protect
the Comptroller of the Treasury from at-will fring. See in fra, at 272–
273. In any event, such changing minds and inconstant opinions don't
usually prove the existence of constitutional rules.

Cite
as: 591 U. S. 197 (2020)
271
Opinion of Kagan, J.
historical claim on that analysis (though somehow also fnd-
i
ng room for its two exceptions). See ante, at 214–215.
But Taft's historical research has held up even worse than
Myers' holding (which was mostly reversed, see infra, at
277). As Dean Manning has concluded after reviewing dec-
ades' worth of scholarship on the issue, “the implications of
the debate, properly understood, [are] highly ambiguous and
prone to overreading.” Manning, 124 Harv. L. Rev., at 1965,
n. 135; see id., at 2030–2031.
The best view is that the First Congress was “deeply
divided” on the President's removal power, and “never
squarely addressed” the central issue here. Id., at 1965, n.
135; Prakash, New Light on the Decision of 1789, 91 Cornell
L. Rev. 1021, 1072 (2006). The congressional debates re-
vealed three main positions. See Corwin, 27 Colum. L. Rev.,
at 361. Some shared Hamilton's Federalist No. 77 view: The
Constitution required Senate consent for removal. At the
opposite extreme, others claimed that the Constitution gave
absolute removal power to the President. And a third fac-
tion maintained that the Constitution placed Congress in the
driver's seat: The legislature could regulate, if it so chose,
the President's authority to remove. In the end, Congress
passed a bill saying nothing about removal, leaving the Pres-
ident free to fre the Secretary of Foreign Affairs at will.
But the only one of the three views defnitively rejected was
Hamilton's theory of necessary Senate consent. As even
strong proponents of executive power have shown, Congress
never “endorse[d] the view that [it] lacked authority to mod-
ify” the President's removal authority when it wished to.
Prakash, supra, at 1073; see Manning, supra, at 1965, n. 135,
2030–2031. The summer of 1789 thus ended without resolu-
tion of the critical question: Was the removal power “beyond
the reach of congressional regulation?” Prakash, supra, at
1072.
At the same time, the First Congress gave offcials han-
dling fnancial affairs—as compared to diplomatic and mili-

272 SEILA
LAW LLC v. CONSUMER FINANCIAL
PROTECTION BUREAU
Opinion of Kagan, J.
tary ones—some independence from the President. The
title
and frst section of the statutes creating the Depart-
ments of Foreign Affairs and War designated them “execu-
tive departments.” Act of July 27, 1789, ch. 4, 1 Stat. 28;
Act of Aug. 7, 1789, ch. 7, 1 Stat. 49. The law creating the
Treasury Department conspicuously avoided doing so. See
Act of Sept. 2, 1789, ch. 12, 1 Stat. 65. That difference in
nomenclature signaled others of substance. Congress left
the organization of the Departments of Foreign Affairs and
War skeletal, enabling the President to decide how he
wanted to staff them. See Casper, An Essay in Separation
of Powers, 30 Wm. & Mary L. Rev. 211, 239–241 (1989). By
contrast, Congress listed each of the offces within the Treas-
ury Department, along with their functions. See ibid. Of
the three initial Secretaries, only the Treasury's had an obli-
gation to report to Congress when requested. See § 2, 1
Stat. 65–66. And perhaps most notable, Congress soon
deemed the Comptroller of the Treasury's settlements of
public accounts “fnal and conclusive.” Act of Mar. 3, 1795,
ch. 48, § 4, 1 Stat. 441–442. That decision, preventing presi-
dential overrides, marked the Comptroller as exercising in-
dependent judgment.
5
True enough, no statute shielded the
Comptroller from discharge. But even James Madison, who
5
As President Jefferson explained: “[W]ith the settlement of the ac-
counts at the Treasury I have no right to interfere in the least,” because
the Comptroller of the Treasury “is the sole & supreme judge in all claims
for money against the US. and would no more receive a direction from
me” than would “one of the judges of the supreme court.” Letter from
T. Jefferson to B. Latrobe (June 2, 1808), in Thomas Jefferson and the
National Capital 429, 431 (S. Padover ed. 1946). A couple of decades later,
Attorney General William Wirt reached the same conclusion, stating that
“the President has no right to interpose in the settling of accounts” be-
cause Congress had “separated” the Comptroller from the President's au-
thority. 1 Op. Atty. Gen. 636, 637 (1824); 1 Op. Atty. Gen. 678, 680 (1824).
And indeed, Wirt believed that Congress could restrict the President's
authority to remove such offcials, at least so long as it “express[ed] that
intention clearly.” 1 Op. Atty. Gen. 212, 213 (1818).

Cite
as: 591 U. S. 197 (2020)
273
Opinion of Kagan, J.
at this point opposed most removal limits, told Congress that
“
there may be strong reasons why an offcer of this kind
should not hold his offce at the pleasure” of the Secretary
or President. 1 Annals of Cong. 612. At the least, as Pro-
fessor Prakash writes, “Madison maintained that Congress
had the [constitutional] authority to modify [the Comptrol-
ler's] tenure.” Prakash, supra, at 1071.
Contrary to the majority's view, then, the founding era
closed without any agreement that Congress lacked the
power to curb the President's removal authority. And as it
kept that question open, Congress took the frst steps—
which would launch a tradition—of distinguishing fnancial
regulators from diplomatic and military offcers. The latter
mainly helped the President carry out his own constitutional
duties in foreign relations and war. The former chiefy car-
ried out statutory duties, fulflling functions Congress had
assigned to their offces. In addressing the new Nation's
fnances, Congress had begun to use its powers under the
Necessary and Proper Clause to design effective administra-
tive institutions. And that included taking steps to insulate
certain offcers from political infuence.
2
As the decades and centuries passed, those efforts picked
up steam. Confronting new economic, technological, and so-
cial conditions, Congress—and often the President—saw
new needs for pockets of independence within the federal
bureaucracy. And that was especially so, again, when it
came to fnancial regulation. I mention just a few highlights
here—times when Congress decided that effective gover-
nance depended on shielding technical or expertise-based
functions relating to the fnancial system from political pres-
sure (or the moneyed interests that might lie behind it).
Enacted under the Necessary and Proper Clause, those
measures—creating some of the Nation's most enduring in-
stitutions—themselves helped settle the extent of Congress's

274 SEILA
LAW LLC v. CONSUMER FINANCIAL
PROTECTION BUREAU
Opinion of Kagan, J.
power. “[A] regular course of practice,” to use Madison's
phrase
, has “liquidate[d]” constitutional meaning about the
permissibility of independent agencies. See supra, at 269.
Take frst Congress's decision in 1816 to create the Second
Bank of the United States—“the frst truly independent
agency in the republic's history.” Lessig & Sunstein, The
President and the Administration, 94 Colum. L. Rev. 1, 30
(1994). Of the twenty-fve directors who led the Bank, the
President could appoint and remove only fve. See Act of
Apr. 10, 1816, § 8, 3 Stat. 269. Yet the Bank had a greater
impact on the Nation than any but a few institutions, regu-
lating the Nation's money supply in ways anticipating what
the Federal Reserve does today. Of course, the Bank was
controversial—in large part because of its freedom from
presidential control. Andrew Jackson chafed at the Bank's
independence and eventually fred his Treasury Secretary
for keeping public moneys there (a dismissal that itself pro-
voked a political storm). No matter. Innovations in gover-
nance always have opponents; administrative independence
predictably (though by no means invariably) provokes presi-
dential ire. The point is that by the early 19th century, Con-
gress established a body wielding enormous fnancial power
mostly outside the President's dominion.
The Civil War brought yet further encroachments on pres-
idential control over fnancial regulators. In response to
wartime economic pressures, President Lincoln (not known
for his modest view of executive power) asked Congress to
establish an offce called the Comptroller of the Currency.
The statute he signed made the Comptroller removable only
with the Senate's consent—a version of the old Hamiltonian
idea, though this time required not by the Constitution itself
but by Congress. See Act of Feb. 25, 1863, ch. 58, 12 Stat.
665. A year later, Congress amended the statute to permit
removal by the President alone, but only upon “reasons to
be communicated by him to the Senate.” Act of June 3,
1864, § 1, 13 Stat. 100. The majority dismisses the original

Cite
as: 591 U. S. 197 (2020)
275
Opinion of Kagan, J.
version of the statute as an “aberration.” Ante, at 220.
But
in the wake of the independence given frst to the Comp-
troller of the Treasury and then to the national Bank, it's
hard to conceive of this newest Comptroller position as so
great a departure. And even the second iteration of the
statute preserved a constraint on the removal power, requir-
ing a President in a fring mood to explain himself to Con-
gress—a demand likely to make him sleep on the subject.
In both versions of the law, Congress responded to new f-
nancial challenges with new regulatory institutions, alert to
the perils in this area of political interference.
6
And then, nearly a century and a half ago, the foodgates
opened. In 1887, the growing power of the railroads over
the American economy led Congress to create the Interstate
Commerce Commission. Under that legislation, the Presi-
dent could remove the fve Commissioners only “for ineff-
ciency, neglect of duty, or malfeasance in offce”—the same
standard Congress applied to the CFPB Director. Act of
Feb. 4, 1887, § 11, 24 Stat. 383. More—many more—for-
6
The Comptroller legislation of the Civil War provided a key precedent
for what does appear a historical “aberration”—the Tenure of Offce Act
of 1867. See ch. 154, 14 Stat. 430. Anxious to prevent President Andrew
Johnson from interfering with reconstruction policies—including through
his command of the military—Congress barred presidential removal of
any Senate-confrmed offcials without the Senate's consent. The law thus
severed the President's removal authority over even offcials like the Sec-
retaries of War and State. The statute became the basis for the Nation's
frst presidential impeachment, but was repealed in 1887. See Act of Mar.
3, 1887, ch. 353, 24 Stat. 500. In one sense, the two-decade-long existence
of the Tenure of Offce Act reveals the 19th-century political system's com-
fort with expansive restrictions on presidential removal. But the ulti-
mate repudiation of the law, and the broad historical consensus that it
went too far, just as strongly shows the limits that system later accepted
on legislative power—that Congress may not impose removal restrictions
preventing the President from carrying out his own constitutionally as-
signed functions in areas like war or foreign affairs. See Morrison v.
Olson, 487 U. S. 654, 689–691 (1988) (recognizing that limit as the constitu-
tional standard).

276 SEILA
LAW LLC v. CONSUMER FINANCIAL
PROTECTION BUREAU
Opinion of Kagan, J.
cause removal provisions followed. In 1913, Congress gave
the
Governors of the Federal Reserve Board for-cause pro-
tection to ensure the agency would resist political pressure
and promote economic stability. See Act of Dec. 23, 1913, ch.
6, 38 Stat. 251. The next year, Congress provided similar
protection to the FTC in the interest of ensuring “a continu-
ous policy” “free from the effect” of “changing [White House]
incumbency.” 51 Cong. Rec. 10376 (1914). The Federal De-
posit Insurance Corporation (FDIC), the Securities and Ex-
change Commission (SEC), the Commodity Futures Trading
Commission. In the fnancial realm, “independent agencies
have remained the bedrock of the institutional framework
governing U. S. markets.” Gadinis, From Independence to
Politics in Financial Regulation, 101 Cal. L. Rev. 327, 331
(2013). By one count, across all subject matter areas, 48
agencies have heads (and below them hundreds more inferior
offcials) removable only for cause. See Free Enterprise
Fund, 561 U. S., at 541 (Breyer, J., dissenting). So year by
year by year, the broad sweep of history has spoken to the
constitutional question before us: Independent agencies are
everywhere.
C
What is more, the Court's precedents before today have
accepted the role of independent agencies in our governmen-
tal system. To be sure, the line of our decisions has not run
altogether straight. But we have repeatedly upheld provi-
sions that prevent the President from fring regulatory off-
cials except for such matters as neglect or malfeasance. In
those decisions, we sounded a caution, insisting that Con-
gress could not impede through removal restrictions the
President's performance of his own constitutional duties.
(So, to take the clearest example, Congress could not curb
the President's power to remove his close military or diplo-
matic advisers.) But within that broad limit, this Court
held, Congress could protect from at-will removal the off-
cials it deemed to need some independence from political
pressures. Nowhere do those precedents suggest what the

Cite
as: 591 U. S. 197 (2020)
277
Opinion of Kagan, J.
majority announces today: that the President has an “unre-
str
icted removal power” subject to two bounded exceptions.
Ante, at 204.
The majority grounds its new approach in Myers, ignoring
the way this Court has cabined that decision. Myers, the
majority tells us, found an unrestrained removal power “es-
sential to the [President's] execution of the laws.” Ante, at
214 (quoting Myers, 272 U. S., at 117). What the majority
does not say is that within a decade the Court abandoned
that view (much as later scholars rejected Taft's one-sided
history, see supra, at 270–271). In Humphrey's Executor
v. United States, 295 U. S. 602 (1935), the Court uncere-
moniously—and unanimously—confned Myers to its facts.
“[T]he narrow point actually decided” there, Humphrey's
stated, was that the President could “remove a postmaster
of the frst class, without the advice and consent of the Sen-
ate.” 295 U. S., at 626. Nothing else in Chief Justice Taft's
prolix opinion “c[a]me within the rule of stare decisis.”
Ibid. (Indeed, the Court went on, everything in Myers “out
of harmony” with Humphrey's was expressly “disapproved.”
295 U. S., at 626.) Half a century later, the Court was more
generous. Two decisions read Myers as standing for the
principle that Congress's own “participation in the removal
of executive offcers is unconstitutional.” Bowsher v. Synar,
478 U. S. 714, 725 (1986); see Morrison, 487 U. S., at 686 (“As
we observed in Bowsher, the essence” of “Myers was the
judgment that the Constitution prevents Congress from
draw[ing] to itself ” the power to remove (internal quota-
tion marks omitted)). Bowsher made clear that Myers had
nothing to say about Congress's power to enact a provision
merely “ l i mit[i ng] the President's powers of remova l”
through a for-cause provision. 478 U. S., at 724. That
issue, the Court stated, was “not presented” in “the Myers
case.” Ibid. Instead, the relevant cite was Humphrey's.
And Humphrey's found constitutional a statute identical
to the one here, providing that the President could remove
FTC Commissioners for “ineffciency, neglect of duty, or mal-

278 SEILA
LAW LLC v. CONSUMER FINANCIAL
PROTECTION BUREAU
Opinion of Kagan, J.
feasance in offce.” 295 U. S., at 619. The Humphrey's
Cour
t, as the majority notes, relied in substantial part on
what kind of work the Commissioners performed. See id.,
at 628, 631; ante, at 215–216. (By contrast, nothing in the
decision turned—as the majority suggests, see ibid.—on any
of the agency's organizational features. See infra, at 290.)
According to Humphrey's, the Commissioners' primary work
was to “carry into effect legislative policies”—“flling in and
administering the details embodied by [a statute's] general
standard.” 295 U. S., at 627–628. In addition, the Court
noted, the Commissioners recommended dispositions in court
cases, much as a special master does. Given those “quasi-
legislative” and “quasi-judicial”—as opposed to “purely exec-
utive”—functi ons, Congress could limit the President's
removal authority. Id., at 628.
7
Or said another way, Con-
gress could give the FTC some “independen[ce from] execu-
tive control.” Id., at 629.
About two decades later, an again-unanimous Court in
Wiener v. United States, 357 U. S. 349 (1958), reaffrmed
Humphrey's. The question in Wiener was whether the
President could dismiss without cause members of the War
Claims Commission, an entity charged with compensating in-
juries arising from World War II. Disdaining Myers and
relying on Humphrey's, the Court said he could not. The
Court described as “short-lived” Myers' view that the Presi-
dent had “inherent constitutional power to remove offcials,
no matter what the relation of the executive to the discharge
7
The majority is quite right that today we view all the activities of
administrative agencies as exercises of “the `executive Power.' ” Arling-
ton v. FCC, 569 U. S. 290, 305, n. 4 (2013) (quoting Art. II, § 1, cl. 1); see
ante, at 216, n. 2. But we well understand, just as the Humphrey's Court
did, that those activities may “take `legislative' and `judicial' forms.” Ar-
lington, 569 U. S., at 305, n. 4. The classic examples are agency rule-
makings and adjudications, endemic in agencies like the FTC and CFPB.
In any event, the Court would soon make clear that Congress can also
constrain the President's removal authority over offcials performing even
the most “executive” of functions. See in fra, at 279–280.

Cite
as: 591 U. S. 197 (2020)
279
Opinion of Kagan, J.
of their duties.” 357 U. S., at 352.
8
H
ere, the Commission-
ers were not close agents of the President, who needed to be
responsive to his preferences. Rather, they exercised adju-
dicatory responsibilities over legal claims. Congress, the
Court found, had wanted the Commissioners to do so “free
from [political] control or coercive infuence.” Id., at 355
(quoting Humphrey's, 295 U. S., at 629). And that choice, as
Humphrey's had held, was within Congress's power. The
Constitution enabled Congress to take down “the Damocles'
sword of removal” hanging over the Commissioners' heads.
357 U. S., at 356.
Another three decades on, Morrison both extended Hum-
phrey's domain and clarifed the standard for addressing re-
moval issues. The Morrison Court, over a one-Justice dis-
sent, upheld for-cause protections afforded to an independent
counsel with power to investigate and prosecute crimes com-
mitted by high-ranking offcials. The Court well understood
that those law enforcement functions differed from the rule-
making and adjudicatory duties highlighted in Humphrey's
and Wiener. But that difference did not resolve the issue.
An offcial's functions, Morrison held, were relevant to but
not dispositive of a removal limit's constitutionality. The
key question in all the cases, Morrison saw, was whether
such a restriction would “impede the President's ability to
perform his constitutional duty.” 487 U. S., at 691. Only if
it did so would it fall outside Congress's power. And the
protection for the independent counsel, the Court found, did
not. Even though the counsel's functions were “purely exec-
8
Expressing veiled contempt as only he could, Justice Frankfurter
wrote for the Court that Chief Justice Taft's opinion had “laboriously tra-
versed” American history and that it had failed to “restrict itself to the
immediate issue before it.” 357 U. S., at 351. No wonder Humphrey's
had “narrowly confned the scope of the Myers decision.” 357 U. S., at
352. Justice Frankfurter implied that the “Chief Justice who himself had
been President” was lucky his handiwork had not been altogether re-
versed. Id., at 351.

280 SEILA
LAW LLC v. CONSUMER FINANCIAL
PROTECTION BUREAU
Opinion of Kagan, J.
utive,” the President's “need to control the exercise of [her]
discreti
on” was not “so central to the functioning of the Ex-
ecutive Branch as to require” unrestricted removal author-
ity. Id., at 690–691. True enough, the Court acknowl-
edged, that the for-cause standard prevented the President
from fring the counsel for discretionary decisions or judg-
ment calls. But it preserved “ample authority” in the Presi-
dent “to assure that the counsel is competently performing ”
her “responsibilities in a manner that comports with” all
legal requirements. Id., at 692. That meant the President
could meet his own constitutional obligation “to ensure `the
faithful execution' of the laws.” Ibid.; see supra, at 268.
9
The majority's description of Morrison, see ante, at 217–
218, is not true to the decision. (Mostly, it seems, the major-
ity just wishes the case would go away. See ante, at 219,
n. 4.) First, Morrison is no “exception” to a broader rule
from Myers. Morrison echoed all of Humphrey's criticism
of the by-then infamous Myers “dicta.” 487 U. S., at 687.
It again rejected the notion of an “all-inclusive” removal
power. Ibid. It yet further confned Myers' reach, making
clear that Congress could restrict the President's removal
9
Pretending this analysis is mine rather than Morrison's, the majority
registers its disagreement. See ante, at 228–229, n. 11. In its view, a
test asking whether a for-cause provision impedes the President's ability
to carry out his constitutional functions has “no real limiting principle.”
Ibid. If the provision leaves the President with constitutionally suffcient
control over some subordinates (like the independent counsel), the major-
ity asks, why not over even his close military or diplomatic advisers? See
ibid. But the Constitution itself supplies the answer. If the only presi-
dential duty at issue is the one to ensure faithful execution of the laws, a
for-cause provision does not stand in the way: As Morrison recognized, it
preserves authority in the President to ensure ( just as the Take Care
Clause requires) that an offcial is abiding by law. See 487 U. S., at 692.
But now suppose an additional constitutional duty is implicated—relating,
say, to the conduct of foreign affairs or war. To carry out those duties,
the President needs advisers who will (beyond complying with law) help
him devise and implement policy. And that means he needs the capacity
to fre such advisers for disagreeing with his policy calls.

Cite
as: 591 U. S. 197 (2020)
281
Opinion of Kagan, J.
of offcials carrying out even the most traditional executive
func
tions. And the decision, with care, set out the govern-
ing rule—again, that removal restrictions are permissible so
long as they do not impede the President's performance of
his own constitutionally assigned duties. Second, as all that
suggests, Morrison is not limited to inferior offcers. In the
eight pages addressing the removal issue, the Court con-
stantly spoke of “offcers” and “offcials” in general. 487
U. S., at 685–693. By contrast, the Court there used the
word “inferior” in just one sentence (which of course the ma-
jority quotes), when applying its general standard to the
case's facts. Id., at 691. Indeed, Justice Scalia's dissent
emphasized that the counsel's inferior-offce status played no
role in the Court's decision. See id., at 724 (“The Court
could have resolved the removal power issue in this case by
simply relying ” on that status, but did not). As Justice
Scalia noted, the Court in United States v. Perkins, 116 U. S.
483, 484–485 (1886), had a century earlier allowed Congress
to restrict the President's removal power over inferior off-
cers. See Morrison, 487 U. S., at 723–724. Were that Mor-
rison's basis, a simple citation would have suffced.
Even Free Enterprise Fund, in which the Court recently
held a removal provision invalid, operated within the frame-
work of this precedent—and in so doing, left in place a
removal provision just like the one here. In that case,
the Court considered a “highly unusual” scheme of double
for-cause protection. 561 U. S., at 505. Members of an ac-
counting board were protected from removal by SEC Com-
missioners, who in turn were protected from removal by the
President. The Court found that the two-layer structure
deprived the President of “adequate control” over the Board
members. Id., at 508. The scheme “impaired” the Presi-
dent's “ability to execute the laws,” the Court explained, be-
cause neither he nor any fully dependent agent could decide
“whether[ ] good cause exists” for a discharge. Id., at 495–
496. That holding cast no doubt on ordinary for-cause pro-

282 SEILA
LAW LLC v. CONSUMER FINANCIAL
PROTECTION BUREAU
Opinion of Kagan, J.
tections, of the kind in the Court's prior cases (and here as
wel
l). Quite the opposite. The Court observed that it did
not “take issue with for-cause limitations in general”—which
do enable the President to determine whether good cause for
discharge exists (because, say, an offcial has violated the
law). Id., at 501. And the Court's solution to the constitu-
tional problem it saw was merely to strike one level of insula-
tion, making the Board removable by the SEC at will. That
remedy left the SEC's own for-cause protection in place.
The President could thus remove Commissioners for malfea-
sance or neglect, but not for policy disagreements. See
ante, at 229–230.
So caselaw joins text and history in establishing the gen-
eral permissibility of for-cause provisions giving some inde-
pendence to agencies. Contrary to the majority's view,
those laws do not represent a suspicious departure from il-
limitable presidential control over administration. For al-
most a century, this Court has made clear that Congress has
broad discretion to enact for-cause protections in pursuit of
good governance.
D
The deferential approach this Court has taken gives Con-
gress the fexibility it needs to craft administrative agencies.
Diverse problems of government demand diverse solutions.
They call for varied measures and mixtures of democratic
accountability and technical expertise, energy and effciency.
Sometimes, the arguments push toward tight presidential
control of agencies. The President's engagement, some peo-
ple say, can disrupt bureaucratic stagnation, counter indus-
try capture, and make agencies more responsive to public
interests. See, well, Kagan, Presidential Administration,
114 Harv. L. Rev. 2245, 2331–2346 (2001). At other times,
the arguments favor greater independence from presidential
involvement. Insulation from political pressure helps en-
sure impartial adjudications. It places technical issues in
the hands of those most capable of addressing them. It pro-

Cite
as: 591 U. S. 197 (2020)
283
Opinion of Kagan, J.
motes continuity, and prevents short-term electoral interests
from
distorting policy. (Consider, for example, how the Fed-
eral Reserve's independence stops a President trying to win
a second term from manipulating interest rates.) Of course,
the right balance between presidential control and independ-
ence is often uncertain, contested, and value-laden. No
mathematical formula governs institutional design; trade-
offs are endemic to the enterprise. But that is precisely
why the issue is one for the political branches to debate—
and then debate again as times change. And it's why courts
should stay (mostly) out of the way. Rather than impose
rigid rules like the majority's, they should let Congress and
the President fgure out what blend of independence and po-
litical control will best enable an agency to perform its in-
tended functions.
Judicial intrusion into this feld usually reveals only how
little courts know about governance. Even everything I
just said is an over-simplifcation. It suggests that agencies
can easily be arranged on a spectrum, from the most to the
least presidentially controlled. But that is not so. A given
agency's independence (or lack of it) depends on a wealth of
features, relating not just to removal standards, but also to
appointments practices, procedural rules, internal organiza-
tion, oversight regimes, historical traditions, cultural norms,
and (inevitably) personal relationships. It is hard to pin-
point how those factors work individually, much less in con-
cert, to infuence the distance between an agency and a Pres-
ident. In that light, even the judicial opinions' perennial
focus on removal standards is a bit of a puzzle. Removal is
only the most obvious, not necessarily the most potent,
means of control. See generally Free Enterprise Fund, 561
U. S., at 524 (Breyer, J., dissenting). That is because infor-
mal restraints can prevent Presidents from fring at-will of-
fcers—and because other devices can keep offcers with for-
cause protection under control. Of course no court, as Free
Enterprise Fund noted, can accurately assess the “bureau-

284 SEILA
LAW LLC v. CONSUMER FINANCIAL
PROTECTION BUREAU
Opinion of Kagan, J.
cratic minutiae” affecting a President's infuence over an
agency
. Id., at 500 (majority opinion); ante, at 30 (reprising
the point). But that is yet more reason for courts to defer
to the branches charged with fashioning administrative
structures, and to hesitate before ruling out agency design
specs like for-cause removal standards.
Our Constitution, as shown earlier, entrusts such decisions
to more accountable and knowledgeable actors. See supra,
at 264–269. The document—with great good sense—sets
out almost no rules about the administrative sphere. As
Chief Justice Marshall wrote when he upheld the frst inde-
pendent fnancial agency: “To have prescribed the means by
which government should, in all future time, execute its pow-
ers, would have been to change, entirely, the character of the
instrument.” McCulloch, 4 Wheat., at 415. That would
have been, he continued, “an unwise attempt to provide, by
immutable rules, for exigencies which, if foreseen at all, must
have been seen dimly.” Ibid. And if the Constitution, for
those reasons, does not lay out immutable rules, then neither
should judges. This Court has usually respected that in-
junction. It has declined to second-guess the work of the
political branches in creating independent agencies like the
CFPB. In reversing course today—in spurning a “prag-
matic, fexible approach to American governance” in favor of
a dogmatic, infexible one, ante, at 231—the majority makes
a serious error.
II
As the majority explains, the CFPB emerged out of disas-
ter. The collapse of the subprime mortgage market “precip-
itat[ed] a fnancial crisis that wiped out over $10 trillion in
American household wealth and cost millions of Americans
their jobs, their retirements, and their homes.” Ante, at
205. In that moment of economic ruin, the President pro-
posed and Congress enacted legislation to address the causes
of the collapse and prevent a recurrence. An important part
of that statute created an agency to protect consumers from

Cite
as: 591 U. S. 197 (2020)
285
Opinion of Kagan, J.
exploitative financial practices. The agency would take
over
enforcement of almost 20 existing federal laws. See 12
U. S. C. § 5581. And it would administer a new prohibition
on “unfair, deceptive, or abusive act[s] or practice[s]” in the
consumer-fnance sector. § 5536(a)(1)(B).
No one had a doubt that the new agency should be inde-
pendent. As explained already, Congress has historically
given—with this Court's permission—a measure of inde-
pendence to fnancial regulators like the Federal Reserve
Board and the FTC. See supra, at 271–276. And agencies
of that kind had administered most of the legislation whose
enforcement the new statute transferred to the CFPB. The
law thus included an ordinary for-cause provision—once
again, that the President could fre the CFPB's Director only
for “ineffciency, neglect of duty, or malfeasance in offce.”
§ 5491(c)(3). That standard would allow the President to
discharge the Director for a failure to “faithfully execute[ ]”
the law, as well as for basic incompetence. U. S. Const.,
Art. II, § 3; see supra, at 268, 280. But it would not permit
removal for policy differences.
The question here, which by now you're well equipped to
answer, is whether including that for-cause standard in the
statute creating the CFPB violates the Constitution.
A
Applying our longstanding precedent, the answer is clear:
It does not. This Court, as the majority acknowledges, has
sustained the constitutionality of the FTC and similar inde-
pendent agencies. See ante, at 204, 215–218. The for-cause
protections for the heads of those agencies, the Court has
found, do not impede the President's ability to perform his
own constitutional duties, and so do not breach the separa-
tion of powers. See supra, at 277–282. There is nothing
different here. The CFPB wields the same kind of power
as the FTC and similar agencies. And all of their heads
receive the same kind of removal protection. No less than

286 SEILA
LAW LLC v. CONSUMER FINANCIAL
PROTECTION BUREAU
Opinion of Kagan, J.
those other entities—by now part of the fabric of govern-
ment
—the CFPB is thus a permissible exercise of Congress's
power under the Necessary and Proper Clause to structure
administration.
First, the CFPB's powers are nothing unusual in the uni-
verse of independent agencies. The CFPB, as the majority
notes, can issue regulations, conduct its own adjudications,
and bring civil enforcement actions in court—all backed by
the threat of penalties. See ante, at 203; 12 U. S. C. §§ 5512,
5562–5565. But then again, so too can (among others) the
FTC and SEC, two agencies whose regulatory missions par-
allel the CFPB's. See 15 U. S. C. §§ 45, 53, 57a, 57b–3, 78u,
78v, 78w. Just for a comparison, the CFPB now has 19 en-
forcement actions pending, while the SEC brought 862 such
actions last year alone. See Brief for Petitioner 7; SEC, Div.
of Enforcement 2019 Ann. Rep. 14. And although the ma-
jority bemoans that the CFPB can “bring the coercive power
of the state to bear on millions of private citizens,” ante,
at 219–220, that scary-sounding description applies to most
independent agencies. Forget that the more relevant fac-
toid for those many citizens might be that the CFPB has
recovered over $11 billion for banking consumers. See ante,
at 206. The key point here is that the CFPB got the mass
of its regulatory authority from other independent agencies
that had brought the same “coercive power to bear.” See
12 U. S. C. § 5581 (transferring power from, among others,
the Federal Reserve, FTC, and FDIC). Congress, to be
sure, gave the CFPB new authority over “unfair, deceptive,
or abusive act[s] or practice[s]” in transactions involving a
“consumer financia l product or service. ” §§ 5517(a)(1),
5536(a)(1). But again, the FTC has power to go after “unfair
or deceptive acts or practices in or affecting commerce”—a
portfolio spanning a far wider swath of the economy. 15
U. S. C. § 45(a)(1).
10
And if infuence on economic life is the
10
The majority suggests that the FTC was a different animal when this
Court upheld its independent status in Humphrey's. See ante, at 218.
But then, as now, the FTC's organic statute broadly “empowered and di-

Cite
as: 591 U. S. 197 (2020)
287
Opinion of Kagan, J.
measure, consider the Federal Reserve, whose every act has
g
lobal consequence. The CFPB, gauged by that compari-
son, is a piker.
Second, the removal protection given the CFPB's Director
is standard fare. The removal power rests with the Presi-
dent alone; Congress has no role to play, as it did in the
laws struck down in Myers and Bowsher. See supra, at 277.
The statute provides only one layer of protection, unlike the
law in Free Enterprise Fund. See supra, at 281–282. And
the clincher, which you have heard before: The for-cause
standard used for the CFPB is identical to the one the Court
upheld in Humphrey's. Both enable the President to fre an
agency head for “ineffciency, neglect of duty, or malfeasance
in offce.” See 12 U. S. C. § 5491(c)(3); 15 U. S. C. § 41; supra,
at 277–278. A removal provision of that kind applied to a
fnancial agency head, this Court has held, does not “unduly
trammel[ ] on executive authority,” even though it prevents
the President from dismissing the offcial for a discretionary
policy judgment. Morrison, 487 U. S., at 691. Once again:
The removal power has not been “completely stripped from
rected” the agency “to prevent persons” or businesses “from using unfair
methods of competition in commerce.” Act of Sept. 26, 1914, § 5, 38 Stat.
719. To fulfll that mandate, the agency could and did run investigations,
bring administrative charges, and conduct adjudications. See ibid.; § 6(a),
id., at 721; FTC Ann. Rep. (1935) (describing the FTC's extensive enforce-
ment activities in the year before Humphrey's). And if any person re-
fused to comply with an order, the agency could seek its enforcement in
federal court under a highly deferential standard. See § 5, 38 Stat. 720;
FTC v. Pacifc States Paper Trade Assn., 273 U. S. 52, 63 (1927). Still
more, the FTC has always had statutory rulemaking authority, even
though (like several other agencies) it relied on adjudications until the
1960s. See § 6(g), 38 Stat. 722; National Petroleum Refners Assn. v.
FTC, 482 F. 2d 672, 686 (CADC 1973). (The majority's reply that a court
including Charles Evans Hughes, Louis Brandeis, Benjamin Cardozo, and
Harlan Stone somehow misunderstood these powers, see ante, at 219, n. 4,
lacks all plausibility.) And in any case, the relevant point of comparison
is the present-day FTC, which remains independent even if it now has
some expanded powers—and which remains constitutional under not only
Humphrey's but also Morrison. See supra, at 277–280.

288 SEILA
LAW LLC v. CONSUMER FINANCIAL
PROTECTION BUREAU
Opinion of Kagan, J.
the President,” providing him with no means to “ensure the
`faith
ful execution' of the laws.” Id., at 692; see supra,
at 280. Rather, this Court has explained, the for-cause stand-
ard gives the President “ample authority to assure that [the
offcial] is competently performing his or her statutory respon-
sibilities in a manner that comports with” all legal obligations.
487 U. S., at 692; see supra, at 280. In other words—and con-
tra today's majority—the President's removal power, though
not absolute, gives him the “meaningful[ ] control[ ]” of the
Director that the Constitution requires. Ante, at 224–225.
The analysis is as simple as simple can be. The CFPB
Director exercises the same powers, and receives the same
removal protections, as the heads of other, constitutionally
permissible independent agencies. How could it be that this
opinion is a dissent?
B
The majority focuses on one (it says suffcient) reason: The
CFPB Director is singular, not plural. “Instead of placing
the agency under the leadership of a board with multiple
members,” the majority protests, “Congress provided that
the CFPB would be led by a single Director.” Ante, at 203.
11
11
The majority briefy mentions, but understandably does not rely on,
two other features of Congress's scheme. First, the majority notes that
the CFPB receives its funding outside the normal appropriations process.
See ante, at 226. But so too do other fnancial regulators, including the
Federal Reserve Board and the FDIC. See 12 U. S. C. §§ 243, 1815(d),
1820(e). And budgetary independence comes mostly at the expense of
Congress's control over the agency, not the President's. (Because that is
so, it actually works to the President's advantage.) Second, the majority
complains that the Director's fve-year term may prevent a President from
“shap[ing the agency's] leadership” through appointments. Ante, at 225.
But again that is true, to one degree or another, of quite a few longstand-
ing independent agencies, including the Federal Reserve, the FTC, the
Merit Systems Protection Board, and the Postal Service Board of Gover-
nors. See, e. g., §§ 241, 242; 15 U. S. C. § 41; 5 U. S. C. §§ 1201, 1202; 39
U. S. C. § 202. (If you think the last is unimportant, just ask the current
President whether he agrees.)

Cite
as: 591 U. S. 197 (2020)
289
Opinion of Kagan, J.
And a solo CFPB Director does not ft within either of the
major
ity's supposed exceptions. He is not an inferior off-
cer, so (the majority says) Morrison does not apply; and he
is not a multimember board, so (the majority says) neither
does Humphrey's. Fur ther, the majority argues, “ [a]n
agency with a [unitary] structure like that of the CFPB”
is “novel”—or, if not quite that, “almost wholly unprece-
dented.” Ante, at 204, 220. Finally, the CFPB's organiza-
tional form violates the “constitutional structure” because it
vests power in a “single individual” who is “insulated from
Presidential control.” Ante, at 204, 224.
I'm tempted at this point just to say: No. All I've ex-
plained about constitutional text, history, and precedent in-
validates the majority's thesis. But I'll set out here some
more targeted points, taking step by step the majority's
reasoning.
First, as I'm afraid you've heard before, the majority's “ex-
ceptions” (like its general rule) are made up. See supra, at
276–282. To begin with, our precedents reject the very idea
of such exceptions. “The analysis contained in our removal
cases,” Morrison stated, shuns any attempt “to defne rigid
categories” of offcials who may (or may not) have job protec-
tion. 487 U. S., at 689. Still more, the contours of the ma-
jority's exceptions don't connect to our decisions' reasoning.
The analysis in Morrison, as I've shown, extended far be-
yond inferior offcers. See supra, at 281. And of course
that analysis had to apply to individual offcers: The inde-
pendent counsel was very much a person, not a committee.
So the idea that Morrison is in a separate box from this case
doesn't hold up.
12
Similarly, Humphrey's and later prece-
12
The majority, seeking some other way to distinguish Morrison, as-
serts that the independent counsel's “duties” were more “limited” than the
CFPB Director's. Ante, at 218–219. That's true in a sense: All (all?) the
special counsel had to do was decide whether the President and his top
advisers had broken the law. But I doubt (and I suspect Presidents would
too) whether the need to control those duties was any less “central to the

290 SEILA
LAW LLC v. CONSUMER FINANCIAL
PROTECTION BUREAU
Opinion of Kagan, J.
dents give no support to the majority's view that the number
of
people at the apex of an agency matters to the constitu-
tional issue. Those opinions mention the “groupness” of the
agency head only in their background sections. The major-
ity picks out that until-now-irrelevant fact to distinguish the
CFPB, and constructs around it an until-now-unheard-of ex-
ception. So if the majority really wants to see something
“novel,” ante, at 204, it need only look to its opinion.
By contrast, the CFPB's single-director structure has a
fair bit of precedent behind it. The Comptroller of the Cur-
rency. The Offce of the Special Counsel (OSC). The Social
Security Administration (SSA). The Federal Housing Fi-
nance Agency (FHFA). Maybe four prior agencies is in the
eye of the beholder, but it's hardly nothing. I've already
explained why the earliest of those agencies—the Civil-War-
era Comptroller—is not the blip the majority describes.
See supra, at 274–275. The offce is one in a long line, start-
ing with the founding-era Comptroller of the Treasury (also
one person), of fnancial regulators designed to do their jobs
with some independence. As for the other three, the major-
ity objects: too powerless and too contested. See ante, at
220–222. I think not. On power, the SSA runs the Nation's
largest government program—among other things, deciding
all claims brought by its 64 million benefciaries; the FHFA
plays a crucial role in overseeing the mortgage market, on
which millions of Americans annually rely; and the OSC
prosecutes misconduct in the two-million-person federal
workforce. All different from the CFPB, no doubt; but the
majority can't think those matters beneath a President's no-
tice. (Consider: Would the President lose more votes from a
malfunctioning SSA or CFPB?) And controversial? Well,
functioning of the Executive Branch” than the need to control the CFPB's.
Morrison, 487 U. S., at 691–692. And in any event, as I've shown, Mor-
rison did much more than approve a specifc removal provision; it created
a standard to govern all removal cases that is at complete odds with the
majority's reasoning. See supra, at 279–281.

Cite
as: 591 U. S. 197 (2020)
291
Opinion of Kagan, J.
yes, they are. Almost all independent agencies are contro-
versia
l, no matter how many directors they have. Or at
least controversial among Presidents and their lawyers.
That's because whatever might be said in their favor, those
agencies divest the President of some removal power. If
signing statements and veto threats made independent agen-
cies unconstitutional, quite a few wouldn't pass muster.
Maybe that's what the majority really wants (I wouldn't
know)—but it can't pretend the disputes surrounding these
agencies had anything to do with whether their heads are
singular or plural.
Still more important, novelty is not the test of constitu-
tionality when it comes to structuring agencies. See Mis-
tretta v. United States, 488 U. S. 361, 385 (1989) (“[M]ere
anomaly or innovation” does not violate the separation of
powers). Congress regulates in that sphere under the Nec-
essary and Proper Clause, not (as the majority seems to
think) a Rinse and Repeat Clause. See supra, at 266. The
Framers understood that new times would often require new
measures, and exigencies often demand innovation. See
McCulloch, 4 Wheat., at 415; supra, at 284. In line with
that belief, the history of the administrative sphere—its
rules, its practices, its institutions—is replete with experi-
ment and change. See supra, at 269–276. Indeed, each of
the agencies the majority says now fts within its “excep-
tions” was once new; there is, as the saying goes, “a frst
time for everything.” National Federation of Independent
Business v. Sebelius, 567 U. S. 519, 549 (2012). So even if
the CFPB differs from its forebears in having a single direc-
tor, that departure is not itself “telling ” of a “constitutional
problem.” Ante, at 220. In deciding what this moment de-
manded, Congress had no obligation to make a carbon copy
of a design from a bygone era.
And Congress's choice to put a single director, rather than
a multimember commission, at the CFPB's head violates no
principle of separation of powers. The purported constitu-

292 SEILA
LAW LLC v. CONSUMER FINANCIAL
PROTECTION BUREAU
Opinion of Kagan, J.
tional problem here is that an offcial has “slip[ped] from the
E
xecutive's control” and “supervision”—that he has become
unaccountable to the President. Ante, at 225, 226 (internal
quotation marks omitted). So to make sense on the majori-
ty's own terms, the distinction between singular and plural
agency heads must rest on a theory about why the former
more easily “slip” from the President's grasp. But the ma-
jority has nothing to offer. In fact, the opposite is more
likely to be true: To the extent that such matters are measur-
able, individuals are easier than groups to supervise.
To begin with, trying to generalize about these matters is
something of a fool's errand. Presidential control, as noted
earlier, can operate through many means—removal to be
sure, but also appointments, oversight devices (e. g., central-
ized review of rulemaking or litigating positions), budgetary
processes, personal outreach, and more. See Free Enter-
prise Fund, 561 U. S., at 524 (Breyer, J., dissenting); supra,
at 283–284.
13
The effectiveness of each of those control
mechanisms, when present, can then depend on a multitude
of agency-specifc practices, norms, rules, and organizational
13
To use one important example, Congress provided for executive over-
sight of all the CFPB's rulemaking. The Financial Stability Oversight
Council can veto by a two-thirds vote any CFPB regulation it deems a
threat to the “safety and soundness” of the fnancial system. 12 U. S. C.
§ 5513(a). The FSOC is chaired by the Treasury Secretary, and most of
its members are under the direct supervision of the President. See
§ 5321. So the majority is wrong in saying that the CFPB's Director can
“unilaterally” issue fnal regulations. Ante, at 225 (emphasis in original).
Indeed, the President has more control over rulemaking at the CFPB than
at any similar independent agency. And the majority is similarly wrong
to think that because the FSOC has not yet issued a formal veto, its
review authority makes no practical difference. See ante, at 226, n. 9.
Regulatory review, whether by the Offce of Management and Budget or
the FSOC, usually relies more on the threat of vetoes than on their execu-
tion. OMB casts a long shadow over rulemaking in the Executive Branch,
but rarely uses its veto pen. See Sunstein, The Offce of Information and
Regulatory Affairs: Myths and Realities, 126 Harv. L. Rev. 1838, 1846–
1847, n. 37 (2013).

Cite
as: 591 U. S. 197 (2020)
293
Opinion of Kagan, J.
features. In that complex stew, the difference between a
si
ngular and plural agency head will often make not a whit
of difference. Or to make the point more concrete, a multi-
member commission may be harder to control than an indi-
vidual director for a host of reasons unrelated to its plural
character. That may be so when the two are subject to the
same removal standard, or even when the individual director
has greater formal job protection. Indeed, the very cate-
gory of multimember commissions breaks apart under in-
spection, spoiling the majority's essential dichotomy. See
generally Brief for Rachel E. Barkow et al. as Amici Curiae.
Some of those commissions have chairs appointed by the
President; others do not. Some of those chairs are quite
powerful; others are not. Partisan-balance requirements,
term length, voting rules, and more—all vary widely, in
ways that make a signifcant difference to the ease of
presidential control. Why, then, would anyone distinguish
along a simple commission/single-director axis when decid-
ing whether the Constitution requires at-will removal?
But if the demand is for generalization, then the majority's
distinction cuts the opposite way: More powerful control
mechanisms are needed ( i f anyth i ng) for commissi ons.
Holding everything else equal, those are the agencies more
likely to “slip from the Executive's control.” Ante, at 226.
Just consider your everyday experience: It's easier to get one
person to do what you want than a gaggle. So too, you know
exactly whom to blame when an individual—but not when a
group—does a job badly. The same is true in bureaucracies.
A multimember structure reduces accountability to the Pres-
ident because it's harder for him to oversee, to infuence—or
to remove, if necessary—a group of fve or more commission-
ers than a single director. Indeed, that is why Congress so
often resorts to hydra-headed agencies. “[M]ultiple mem-
bership,” an infuential Senate Report concluded, is “a buffer
against Presidential control” (especially when combined,
as it often is, with partisan-balance requirements). Senate

294 SEILA
LAW LLC v. CONSUMER FINANCIAL
PROTECTION BUREAU
Opinion of Kagan, J.
Committee on Governmental Affairs, Study on Federal Reg-
u
lation, S. Doc. No. 95–91, vol. 5, p. 75 (1977). So, for exam-
ple, Congress constructed the Federal Reserve as it did be-
cause it is “easier to protect a board from political control
than to protect a single appointed offcial.” R. Cushman,
The Independent Regulatory Commissions 153 (1941).
14
It
is hard to know why Congress did not take the same tack
when creating the CFPB. But its choice brought the agency
only closer to the President—more exposed to his view, more
subject to his sway. In short, the majority gets the matter
backward: Where presidential control is the object, better to
have one than many.
Because it has no answer on that score, the majority slides
to a different question: Assuming presidential control of any
independent agency is vanishingly slim, is a single-head or a
multi-head agency more capable of exercising power, and so
of endangering liberty? See ante, at 222–225. The majority
says a single head is the greater threat because he may wield
power “unilaterally” and “[w]ith no colleagues to persuade.”
Ante, at 225 (emphasis in original). So the CFPB falls victim
to what the majority sees as a constitutional anti-power-
concentration principle (with an exception for the President).
If you've never heard of a statute being struck down on
that ground, you're not alone. It is bad enough to “extrapo-
lat[e]” from the “general constitutional language” of Article
II's Vesting Clause an unrestricted removal power constrain-
14
I could go on. A recent study prepared for the Administrative Con-
ference of the United States noted that “[g]overnance by multiple mem-
bers limits the President's infuence.” J. Selin & D. Lewis, Sourcebook
of United States Executive Agencies 89 (2d ed. 2018). And the General
Accounting Offce has recognized that the desire for “greater independ-
ence” is what “most likely explains why the Congress in the past has opted
to head independent regulatory bodies with multimember commissions
rather than single administrators.” Hearing before the Senate Subcom-
mittee on the Consumer of the Committee on Commerce, Science, and
Transpor t ati on, 100th Cong., 1st Sess., 135 (1987) (St atement of F.
Frazier).

Cite
as: 591 U. S. 197 (2020)
295
Opinion of Kagan, J.
ing Congress's ability to legislate under the Necessary and
Proper
Clause. Morrison, 487 U. S., at 690, n. 29; see supra,
at 267. It is still worse to extrapolate from the Constitu-
tion's general structure (division of powers) and implicit val-
ues (liberty) a limit on Congress's express power to create
administrative bodies. And more: to extrapolate from such
sources a distinction as prosaic as that between the SEC and
the CFPB—i. e., between a multi-headed and single-headed
agency. That is, to adapt a phrase (or two) from our prece-
dent, “more than” the emanations of “the text will bear.”
M o r r iso n, 487 U. S., at 690, n. 29. By usi ng abstrac t
separation-of-powers arguments for such purposes, the
Court “appropriate[s]” the “power delegated to Congress by
the Necessary and Proper Clause” to compose the govern-
ment. Manning, Foreword: The Means of Constitutional
Power, 128 Harv. L. Rev. 1, 78 (2014). In deciding for itself
what is “proper,” the Court goes beyond its own proper
bounds.
And in doing so, the majority again reveals its lack of in-
terest in how agencies work. First, the premise of the ma-
jority's argument—that the CFPB head is a mini-dictator,
not subject to meaningful presidential control, see ante, at
224–225—is wrong. As this Court has seen in the past, inde-
pendent agencies are not fully independent. A for-cause re-
moval provision, as noted earlier, leaves “ample” control over
agency heads in the hands of the President. Morrison, 487
U. S., at 692; see supra, at 279–280. He can discharge them
for failing to perform their duties competently or in accord-
ance with law, and so ensure that the laws are “faithfully
executed.” U. S. Const., Art. II, § 3; see supra, at 268, 280.
And he can use the many other tools attached to the Offce
of the Presidency—including in the CFPB's case, rulemaking
review—to exert infuence over discretionary policy calls.
See supra, at 292, and n. 13. Second, the majority has noth-
ing but intuition to back up its essentially functionalist claim
that the CFPB would be less capable of exercising power if

296 SEILA
LAW LLC v. CONSUMER FINANCIAL
PROTECTION BUREAU
Opinion of Kagan, J.
it had more than one Director (even supposing that were
a
suitable issue for a court to address). Ante, at 222–225.
Maybe the CFPB would be. Or maybe not. Although a
multimember format tends to frustrate the President's con-
trol over an agency, see supra, at 293–294, it may not lessen
the agency's own ability to act with decision and dispatch.
(Consider, for a recent example, the Federal Reserve Board.)
That effect presumably would depend on the agency's inter-
nal organization, voting rules, and similar matters. At the
least: If the Court is going to invalidate statutes based on
empirical assertions like this one, it should offer some empir-
ical support. It should not pretend that its assessment that
the CFPB wields more power more dangerously than the
SEC comes from someplace in the Constitution. But today
the majority fails to accord even that minimal respect to
Congress.
III
Recall again how this dispute got started. In the midst
of the Great Recession, Congress and the President came
together to create an agency with an important mission. It
would protect consumers from the reckless fnancial prac-
tices that had caused the then-ongoing economic collapse.
Not only Congress but also the President thought that the
new agency, to fulfll its mandate, needed a measure of inde-
pendence. So the two political branches, acting together,
gave the CFPB Director the same job protection that innu-
merable other agency heads possess. All in all, those
branches must have thought, they had done a good day's
work. Relying on their experience and knowledge of admin-
istration, they had built an agency in the way best suited to
carry out its functions. They had protected the public from
fnancial chicanery and crisis. They had governed.
And now consider how the dispute ends—with fve un-
elected judges rejecting the result of that democratic proc-
ess. The outcome today will not shut down the CFPB: A
different majority of this Court, including all those who join

Cite
as: 591 U. S. 197 (2020)
297
Opinion of Kagan, J.
this opinion, believes that if the agency's removal provision
is
unconstitutional, it should be severed. But the majority
on constitutionality jettisons a measure Congress and the
President viewed as integral to the way the agency should
operate. The majority does so even though the Constitution
grants to Congress, acting with the President's approval, the
authority to create and shape administrative bodies. And
even though those branches, as compared to courts, have far
greater understanding of political control mechanisms and
agency design.
Nothing in the Constitution requires that outcome; to the
contrary. “While the Constitution diffuses power the better
to secure liberty, it also contemplates that practice will inte-
grate the dispersed powers into a workable government.”
Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 635
(1952) (Jackson, J., concurring). The Framers took pains to
craft a document that would allow the structures of gover-
nance to change, as times and needs change. The Constitu-
tion says only a few words about administration. As Chief
Justice Marshall wrote: Rather than prescribing “immutable
rules,” it enables Congress to choose “the means by which
government should, in all future time, execute its powers.”
McCulloch, 4 Wheat., at 415. It authorizes Congress to
meet new exigencies with new devices. So Article II does
not generally prohibit independent agencies. Nor do any
supposed structural principles. Nor do any odors wafting
from the document. Save for when those agencies impede
the President's performance of his own constitutional duties,
the matter is left up to Congress.
Our history has stayed true to the Framers' vision. Con-
gress has accepted their invitation to experiment with ad-
ministrative forms—nowhere more so than in the feld of f-
nancial regulation. And this Court has mostly allowed it
to do so. The result is a broad array of independent agen-
cies, no two exactly alike but all with a measure of insulation
from the President's removal power. The Federal Reserve

298 SEILA
LAW LLC v. CONSUMER FINANCIAL
PROTECTION BUREAU
Opinion of Kagan, J.
Board; the FTC; the SEC; maybe some you've never heard
of
. As to each, Congress thought that formal job protection
for policymaking would produce regulatory outcomes in
greater accord with the long-term public interest. Congress
may have been right; or it may have been wrong; or maybe
it was some of both. No matter—the branches accountable
to the people have decided how the people should be
governed.
The CFPB should have joined the ranks. Maybe it will
still do so, even under today's opinion: The Court tells Con-
gress that it may “pursu[e] alternative responses” to the
identifed constitutional defect—“for example, converting the
CFPB into a multimember agency.” Ante, at 237. But
there was no need to send Congress back to the drawing
board. The Constitution does not distinguish between
single-director and multimember independent agencies. It
instructs Congress, not this Court, to decide on agency de-
sign. Because this Court ignores that sensible—indeed,
that obvious—division of tasks, I respectfully dissent.

OCTOBER
TERM, 2019
299
Syllabus
JUNE MEDICAL SERVICES L. L. C. et al. v. RUSSO,
INTERIM
SECRETARY, LOUISIANA DEPARTMENT
OF HEALTH AND HOSPITALS
certiorari to the united states court of appeals for
the fth circuit
No. 18–1323. Argued March 4, 2020—Decided June 29, 2020*
Louisiana's Act 620, which is almost word-for-word identical to the Texas
“admitting privileges” law at issue in Whole Woman's Health v. Heller-
stedt, 579 U. S. 582, requires any doctor who performs abortions to hold
“active admitting privileges at a hospital . . . located not further than
thirty miles from the location at which the abortion is performed or
induced,” and defnes “active admitting privileges” as being “a member
in good standing ” of the hospital's “medical staff . . . with the ability
to admit a patient and to provide diagnostic and surgical services to
such patient.”
In these consolidated cases, fve abortion clinics and four abortion
providers challenged Act 620 before it was to take effect, alleging that it
was unconstitutional because (among other things) it imposed an undue
burden on the right of their patients to obtain an abortion. (The plain-
tiff providers and two additional doctors are referred to as Does 1
through 6.) The plaintiffs asked for a temporary restraining order
(TRO), followed by a preliminary injunction to prevent the law from
taking effect. The defendant (State) opposed the TRO request but also
urged the court not to delay ruling on the preliminary injunction mo-
tion, asserting that there was no doubt about the physicians' standing.
Rather than staying the Act's effective date, the District Court provi-
sionally forbade the State to enforce the Act's penalties, while directing
the plaintiff doctors to continue to seek privileges and to keep the court
apprised of their progress. Several months later, after a 6-day bench
trial, the District Court declared Act 620 unconstitutional on its face and
preliminarily enjoined its enforcement. On remand in light of Whole
Woman's Health, the District Court ruled favorably on the plaintiffs'
request for a permanent injunction on the basis of the record previously
developed, fnding, among other things, that the law offers no signifcant
*Together with No. 18–1460, Russo, Interim Secretary, Louisiana De-
partment of Health and Hospitals v. June Medical Services L. L. C. et al.,
also on certiorari to the same court.

300 JUNE
MEDICAL SERVICES L. L. C. v. RUSSO
Syllabus
health beneft; that conditions on admitting privileges common to hospi-
t
als throughout the State have made and will continue to make it impos-
sible for abortion providers to obtain conforming privileges for reasons
that have nothing to do with the State's asserted interests in promoting
women's health and safety; and that this inability places a substantial
obstacle in the path of women seeking an abortion. The court con-
cluded that the law imposes an undue burden and is thus unconstitu-
tional. The Fifth Circuit reversed, agreeing with the District Court's
interpretation of the standards that apply to abortion regulations, but
disagreei ng w ith near ly every one of the D istr ic t Cour t's fac tua l
fndings.
Held: The judgment is reversed.
905 F. 3d 787, reversed.
Justice Breyer, joined by Justice Ginsburg, Justice Soto-
mayor, and Justice Kagan, concluded:
1. The State's unmistakable concession of standing as part of its effort
to obtain a quick decision from the District Court on the merits of the
plaintiffs' undue-burden claims and a long line of well-established prece-
dents foreclose its belated challenge to the plaintiffs' standing in this
Court. Pp. 316–320.
2. Given the District Court's factual fndings and precedents, par-
ticularly Whole Woman's Health, Act 620 violates the Constitution.
Pp. 321–344.
(a) Under the applicable constitutional standards set forth in the
Court's earlier abortion-related cases, particularly Planned Parenthood
of Southeastern Pa. v. Casey, 505 U. S. 833, and Whole Woman's Health,
“ `[u]nnecessary health regulations that have the purpose or effect of
presenting a substantial obstacle to a woman seeking an abortion im-
pose an undue burden on the right' ” and are therefore “constitutionally
invalid,” Whole Woman's Health, 579 U. S., at 607. This standard re-
quires courts independently to review the legislative fndings upon
which an abortion-related statute rests and to weigh the law's “asserted
benefts against the burdens” it imposes on abortion access. Id., at 609.
The District Court here, like the trial court in Whole Woman's Health,
faithfully applied these standards. The Fifth Circuit disagreed with
the District Court, not so much in respect to the legal standards, but in
respect to the factual fndings on which the District Court relied in
assessing both the burdens that Act 620 imposes and the health-related
benefts it might bring.
Under well-established legal standards, a district court's fndings of
fact “must not be set aside unless clearly erroneous, and the reviewing

Cite
as: 591 U. S. 299 (2020)
301
Syllabus
court must give due regard to the trial court's opportunity to judge
the
witnesses' credibility.” Fed. Rule. Civ. Proc. 52(a)(6). When the
district court is “sitting without a jury,” the appellate court “is not to
decide factual issues de novo,” Anderson v. Bessemer City, 470 U. S.
564, 573. Provided “the district court's account of the evidence is plau-
sible in light of the record viewed in its entirety, the court of appeals
may not reverse it even though convinced that had it been sitting as the
trier of fact, it would have weighed the evidence differently.” Id., at
573–574. Viewed in light of this standard, the testimony and other evi-
dence contained in the extensive record developed over the 6-day trial
support the District Court's conclusion on Act 620's constitutionality.
Pp. 321–323.
(b) Taken together, the District Court's fndings and the evidence
underlying them are suffcient to support its conclusion that enforcing
the admitting-privileges requirement would drastically reduce the num-
ber and geographic distribution of abortion providers, making it impos-
sible for many women to obtain a safe, legal abortion in the State and
imposing substantial obstacles on those who could. Pp. 323–339.
(1) The evidence supporting the court's fndings in respect to Act
620's impact on abortion providers is stronger and more detailed than
that in Whole Woman's Health. The District Court supervised Does
1, 2, 5, and 6 for more than 18 months as they tried, and largely failed,
to obtain conforming privileges from 13 relevant hospitals; it relied on
a combination of direct evidence that some of the doctors' applications
were denied for reasons having nothing to do with their ability to per-
form abortions safely, and circumstantial evidence—including hospital
bylaws with requirements like those considered in Whole Woman's
Health and evidence that showed the role that opposition to abortion
plays in some hospitals' decisions—that explained why other applica-
tions were denied despite the doctors' good-faith efforts. Just as in
Whole Woman's Health, that evidence supported the District Court's
factual fnding that Louisiana's admitting-privileges requirement serves
no “relevant credentialing function.” 579 U. S., at 613. The Fifth Cir-
cuit's conclusion that Does 2, 5, and 6 acted in bad faith cannot be
squared with the clear-error standard of review that applies to the Dis-
trict Court's contrary fndings. Pp. 324–336.
(2) The District Court also drew from the record evidence sev-
eral conclusions in respect to the burden that Act 620 is likely to impose
upon women's ability to access an abortion in Louisiana. It found that
enforcing that requirement would prevent Does 1, 2, and 6 from provid-
ing abortions altogether. Doe 3 gave uncontradicted, in-court testi-
mony that he would stop performing abortions if he was the last pro-

302 JUNE
MEDICAL SERVICES L. L. C. v. RUSSO
Syllabus
vider in northern Louisiana, so the departure of Does 1 and 2 would
a
lso eliminate Doe 3. And Doe 5's inability to obtain privileges in the
Baton Rouge area would leave Louisiana with just one clinic with one
provider to serve the 10,000 women annually who seek abortions in the
State. Those women not altogether prevented from obtaining an abor-
tion would face “longer waiting times, and increased crowding.” Whole
Woman's Health, 579 U. S., at 613. Delays in obtaining an abortion
might increase the risk that a woman will experience complications from
the procedure and may make it impossible for her to choose a non-
invasive medication abortion. Both expert and lay witnesses testifed
that the burdens of increased travel to distant clinics would fall dis-
proportionately on poor women, who are least able to absorb them.
Pp. 336–339.
(c) An examination of the record also shows that the District
Court's fndings regarding the law's asserted benefts are not “clearly
erroneous.” The court found that the admitting-privileges requirement
serves no “relevant credentialing function.” 250 F. Supp. 3d 27, 87.
Hospitals can, and do, deny admitting privileges for reasons unrelated
to a doctor's ability safely to perform abortions, focusing primarily upon
a doctor's ability to perform the inpatient, hospital-based procedures
for which the doctor seeks privileges—not outpatient abortions. And
nothing in the record indicates that the vetting of applicants for privi-
leges adds signifcantly to the vetting already provided by the State
Board of Medical Examiners. The court's fnding that the admitting-
privileges requirement “does not conform to prevailing medical stand-
ards and will not improve the safety of abortion in Louisiana,” ibid., is
supported by expert and lay trial testimony. And, as in Whole Wom-
an's Health, the State introduced no evidence “showing that patients
have better outcomes when their physicians have admitting privileges”
or “of any instance in which an admitting privileges requirement would
have helped even one woman obtain better treatment,” 250 F. Supp. 3d,
at 64. Pp. 339–342.
(d) In light of the record, the District Court's signifcant factual
fndings—both as to burdens and as to benefts—have ample evidentiary
support and are not “clearly erroneous.” Thus, the court's related fac-
tual and legal determinations and its ultimate conclusion that Act 620 is
unconstitutional are proper. P. 342.
The Chief Justice agreed that abortion providers in this case have
standing to assert the constitutional rights of their patients and con-
cluded that because Louisiana's Act 620 imposes a burden on access to
abortion just as severe as that imposed by the nearly identical Texas law
invalidated four years ago in Whole Woman's Health v. Hellerstedt, 579
U. S. 582, it cannot stand under principles of stare decisis. Pp. 344–358.

Cite
as: 591 U. S. 299 (2020)
303
Syllabus
Breyer, J., announced the judgment of the Court and delivered an opin-
i
on, in which Ginsburg, Sotomayor, and Kagan, JJ., joined. Roberts,
C. J., fled an opinion concurring in the judgment, post, p. 344. Thomas,
J., fled a dissenting opinion, post, p. 359. Alito, J., fled a dissenting
opinion, in which Gorsuch, J., joined, in which Thomas, J., joined except
as to Parts III–C and IV–F, and in which Kavanaugh, J., joined as to
Parts I, II, and III, post, p. 377. Gorsuch, J., post, p. 409, and Kava-
naugh, J., post, p. 428, fled dissenting opinions.
Julie Rikelman argued the cause for June Medical Serv-
ices, LLC. With her on the briefs in both cases were Travis
J. Tu, Jessica Sklarsky, Anton Metlitsky, Yaira Dubin, Jef-
frey L. Fisher, Bradley N. Garcia, Samantha M. Goldstein,
Kendall Turner, and Jeremy Girton.
Elizabeth B. Murrill, Solicitor General of Louisiana, ar-
gued the cause for Stephen Russo, Interim Secretary, Louisi-
ana Department of Health and Hospitals. With her on the
briefs in both cases were Jeff Landry, Attorney General of
Louisiana, Joseph Scott St. John, Deputy Solicitor General,
Gene C. Schaerr, Erik S. Jaffe, Stephen S. Schwartz, Kath-
ryn E. Tarbert, William S. Consovoy, and Jeffrey M. Harris.
Deputy Solicitor General Wall argued the cause for the
United States as amicus curiae in support of Stephen Russo,
Interim Secretary, Louisiana Department of Health and Hos-
pitals. With him on the brief in both cases were Solicitor
General Francisco, Assistant Attorney General Hunt, Dep-
uty Assistant Attorney General Mooppan, Christopher G.
Michel, Benjamin W. Snyder, Mark R. Freeman, Michael S.
Raab, Robe r t P. Char ro w, Sean Kev eney, and Paula
Stannard.†
†Briefs of amici curiae urging reversal in both cases were fled for the
American College of Obstetricians and Gynecologists et al. by Kimberly
A. Parker and Skye L. Perryman; for Catholics for Choice et al. by Eugene
M. Gelernter and Barbara Mullin; for Federal Courts Scholars by Elaine
J. Goldenberg and Adam P. Barry; for the Feminist Majority Foundation
et al. by Janice Mac Avoy, Jennifer L. Colyer, Leigh G. Rome, David S.
Cohen, and Susan Frietsche; for Former Federal Judges et al. by Robert
A. Long, Jr.; for If/When/How: Lawyering for Reproductive Justice et

304 JUNE
MEDICAL SERVICES L. L. C. v. RUSSO
Opinion of Breyer, J.
Justice Breyer announced the judgment of the Court
and
delivered an opinion, in which Justice Ginsburg, Jus-
tice Sotomayor, and Justice Kagan join.
In Whole Woman's Health v. Hellerstedt, 579 U. S. 582
(2016), we held that “ `[u]nnecessary health regulations that
al. by Farah Diaz-Tello, Sara L. Ainsworth, Rebecca S. Engrav, Lauren J.
Tsuji, and Ariel B. Glickman; for the Lawyers' Committee for Civil Rights
Under Law et al. by Kristen Clarke, Jon Greenbaum, Dariely Rodriguez,
Vanita Gupta, and Michael Zubrensky; for Medical Staff Professionals by
Robert M. Palumbos, Erin M. Duffy, and Sean Zabaneh; for the National
Health Law Program et al. by Jane Perkins and Ms. Ainsworth; for the
National Women's Law Center et al. by Fatima Goss Graves, Gretchen
Borchelt, Sunu Chandy, Michelle Banker, and Heather Shumaker; for Or-
ganizations and Individuals Dedicated to the Fight for Reproductive Jus-
tice–Women With a Vision et al. by Wesley R. Powell, Mary Eaton, and
Michael J. Gottlieb; for Planned Parenthood Federation of America et al.
by E. Joshua Rosenkranz and Rachel G. Shalev; for Reproductive Justice
Scholars by Kelly M. Dermody, Tiseme G. Zegeye, and Madeline M.
Gomez; for Social Science Researchers by Alan S. Gilbert and Leah R.
Bruno; for Tort Law Scholars by Gary N. Frischling; for Holly Alvarado
et al. by Michael J. Dell; for Michele Coleman Mayes et al. by Claudia
Hammerman and Tanya S. Manno; and for 197 Members of Congress by
Clyde G. Szyfer. A brief of amici curiae urging vacatur in both cases
was fled for Abby Johnson et al. by Catherine W. Short.
Briefs of amici curiae urging reversal in No. 18–1323 were fled for the
State of New York et al. by Letitia James, Attorney General of New York,
Barbara D. Underwood, Solicitor General, Andrea Oser, Deputy Solicitor
General, and Ester Murdukhayeva, Assistant Solicitor General, and by
the Attorneys General for their respective jurisdictions as follows: Xavier
Becerra of California, Phil Weiser of Colorado, William Tong of Connecti-
cut, Kathleen Jennings of Delaware, Karl A. Racine of the District of
Columbia, Clare E. Connors of Hawaii, Kwame Raoul of Illinois, Aaron
M. Frey of Maine, Brian E. Frosh of Maryland, Maura Healey of Massa-
chusetts, Dana Nessel of Michigan, Keith Ellison of Minnesota, Aaron D.
Ford of Nevada, Gurbir S. Grewal of New Jersey, Hector H. Balderas of
New Mexico, Ellen F. Rosenblum of Oregon, Josh Shapiro of Pennsylva-
nia, Peter F. Neronha of Rhode Island, Thomas J. Donovan, Jr., of Ver-
mont, Mark R. Herring of Virginia, and Robert Ferguson of Washington;
for the American Bar Association by Clifton S. Elgarten, Keith J. Har-
rison, Amanda Shafer Berman, and Judy Perry Martinez; for the Ameri-

Cite
as: 591 U. S. 299 (2020)
305
Opinion of Breyer, J.
have the purpose or effect of presenting a substantial obstacle
to
a woman seeking an abortion impose an undue burden on
the right' ” and are therefore “constitutionally invalid.” Id.,
at 589–590 (quoting Planned Parenthood of Southeastern Pa.
can Civil Liberties Union et al. by Andrew D. Beck, Jennifer Dalven,
Louise Melling, David D. Cole, Katie Schwartzmann, and Bruce Hamil-
ton; for the Constitutional Accountability Center by Elizabeth B. Wydra,
Brianne J. Gorod, and David H. Gans; for Constitutional Law Scholars
et al. by Orin Snyder and Joshua S. Lipshutz; for the Information Society
Project at Yale Law School by Priscilla J. Smith; and for LGBTQ Organi-
zations by David J. Weiner, Andrew Tutt, Shannon P. Minter, Julianna
S. Gonen, and Christopher F. Stoll.
Briefs of amici curiae urging affrmance in both cases were fled for the
State of Arkansas et al. by Leslie Rutledge, Attorney General of Arkan-
sas, Nicholas J. Bronni, Solicitor General, Vincent M. Wagner, Deputy
Solicitor General, and Dylan L. Jacobs, Assistant Solicitor General, by
Curtis T. Hill, Jr., Attorney General of Indiana, Thomas M. Fisher, Solici-
tor General, Kian J. Hudson, Deputy Solicitor General, and Julia C.
Payne, Deputy Attorney General, and by the Attorneys General and other
offcials for their respective States as follows: Steve Marshall of Alabama,
Mark Brnov ich of Arizona, Ashley Moody of Florida, Chr istopher M.
Carr of Georgia, Derek Schmidt of Kansas, Daniel Cameron of Kentucky,
Jim Hood of Mississippi, Eric S. Schmitt of Missouri, Tim Fox of Montana,
Doug Peterson of Nebraska, Wayne Steneh jem of North Dakota, Dave
Yost of Ohio, Mike Hunter of Oklahoma, Alan Wilson of South Carolina,
Jason Ravnsborg of South Dakota, Herbert H. Slatery III of Tennessee,
Sean D. Reyes of Utah, and Patrick Morrisey of West Virginia; for the
State of Idaho by Lawrence G. Wasden, Attorney General of Idaho, Brian
Kane, Assistant Deputy Chief, and Cynthia L. Yee-Wallace, Deputy Attor-
ney General; for the State of Texas by Ken Paxton, Attorney General of
Texas, Jeffrey C. Mateer, First Assistant Attorney General, Kyle D. Haw-
kins, Solicitor General, and Heather Gebelin Hacker and Beth Klusmann,
Assistant Solicitors General; for African American Pro-Life Organizations
by C. Boyden Gray and Adam R. F. Gustafson; for the American Associa-
tion of Pro-Life Obstetricians et al. by Bradley S. Tupi; for the American
Center for Law and Justice et al. by Jay Alan Sekulow, Stuart J. Roth,
Colby M. May, Walter M. Weber, Thomas P. Monaghan, Francis J. Man-
ion, and Geoffrey R. Surtees; for Americans United for Life by Catherine
Glenn Foster, Steven H. Aden, and Clarke D. Forsythe; for the Association
of American Physicians and Surgeons, Inc., by Antony B. Kolenc; for the

306 JUNE
MEDICAL SERVICES L. L. C. v. RUSSO
Opinion of Breyer, J.
v. Casey, 505 U. S. 833, 878 (1992) (plurality opinion); alter-
ati
on in original). We explained that this standard requires
courts independently to review the legislative fndings upon
which an abortion-related statute rests and to weigh the
Center for Constitutional Jurisprudence by John C. Eastman and An-
thony T. Caso; for the Christian Legal Society et al. by Reed N. Smith and
Kimberlee Wood Colby; for the Eagle Forum Education & Legal Defense
Fund by Lawrence J. Joseph; for the Ethics & Religious Liberty Commis-
sion of the Southern Baptist Conference et al. by Alexander Dushku and
R. Shawn G unn arso n; for Family Research Council by Jo na than F.
Mitchell and Travis S. Weber; for the Foundation for Moral Law by Mat-
th ew J. Cl ark and Mar t in Wishn a t sky; for I llinois Right to Li fe by
Thomas Brejcha, Thomas Olp, and Joan M. Mannix; for the Independ-
ence Law Center by Randall L. Wegner, Jeremy L. Samek, and Curtis M.
Schube; for the Inner Life Fund et al. by James L. Hirsen, Deborah J.
Dewart, and Tami Fitzgerald; for the International Conference of Evan-
gelical Chaplain Endorsers by Arthur A. Schulcz, Sr.; for Louisiana State
Legislators by Kristen K. Waggoner, John J. Bursch, David A. Cortman,
Kevin H. Theriot, and James A. Campbell; for the National Institute of
Family and Life Advocates et al. by Harold J. Cassidy and Joseph R.
Zakhary; for Operation Rescue et al. by Mathew D. Staver, An i ta L.
Staver, Horatio G. Mihet, and Ms. Short; for Priests for Life et al. by
Robert Joseph Muise and David Yerushalmi; for the Pro-Life Legal De-
fense Fund et al. by Herbert W. Titus, William J. Olson, Jeremiah L.
Morgan, Robert J. Olson, Joseph W. Miller, and J. Mark Brewer; for Right
to Life of Michigan by William Wagner, Erin Elizabeth Mersino, and
Katherine L. Henry; for the Susan B. Anthony List by John G. Knepper;
for the United States Conference of Catholic Bishops et al. by Anthony
R. Picarello, Jr., Jeffrey Hunter Moon, and Michael F. Moses; for Mary
J. Browning by Allan E. Parker, Jr., and Ms. Browning, pro se; for Sen.
Josh Hawley by Mr. Hawley, pro se; for Melinda Thybault by Mr. Parker
and R. Clayton Trotter; for 207 Members of Congress by Ms. Foster and
Mr. Aden; and for 2,624 Women Injured by Abortion et al. by Mr. Parker,
Kathleen Cassidy Goodman, Mary Ann Randolph, and Mr. Trotter.
Briefs of amici curiae urging affrmance in No. 18–1323 were fled for
the Billy Graham Evangelistic Association et al. by Kevin T. Snider; for
the CatholicVote.Org Education Fund by Scott W. Gaylord; for Former
Abortion Providers et al. by Linda Boston Schlueter; for IBIS Reproduc-
tive Health et al. by Jessica L. Ellsworth and Kaitlyn A. Golden; for the
Legal Center for Defense of Life by Andrew L. Schlafy; for the Louisiana

Cite
as: 591 U. S. 299 (2020)
307
Opinion of Breyer, J.
law's “asserted benefts against the burdens” it imposes on
abor
tion access. 579 U. S., at 609 (citing Gonzales v. Car-
hart, 550 U. S. 124, 165 (2007)).
The Texas statute at issue in Whole Woman's Health re-
quired abortion providers to hold “ `active admitting privi-
leges at a hospital' ” within 30 miles of the place where they
perform abortions. 579 U. S., at 590 (quoting Tex. Health &
Safety Code Ann. § 171.0031(a) (West Cum. Supp. 2015)).
Reviewing the record for ourselves, we found ample evidence
to support the District Court's fnding that the statute did
not further the State's asserted interest in protecting
women's health. The evidence showed, moreover, that con-
ditions on admitting privileges that served no “relevant cre-
dentialing function,” 579 U. S., at 613, “help[ed] to explain”
the closure of half of Texas' abortion clinics, id., at 612.
Those closures placed a substantial obstacle in the path of
Texas women seeking an abortion. Ibid. And that obsta-
cle, “when viewed in light of the virtual absence of any
health beneft,” imposed an “undue burden” on abortion ac-
cess in violation of the Federal Constitution. Id., at 614; see
Casey, 505 U. S., at 878 (plurality opinion).
In this case, we consider the constitutionality of a Louisi-
ana statute, Act 620, that is almost word-for-word identical
to Texas' admitting-privileges law. See La. Rev. Stat. Ann.
§ 40:1061.10(A)(2)(a) (West 2020). As in Whole Woman's
Health, the District Court found that the statute offers no
Family Forum et al. by Anita Y. Milanovich and Renee K. Carlson; for
the National Right to Life Committee et al. by James Bopp, Jr., and Rich-
ard E. Coleson; and for Samaritan's Purse by Frederick W. Claybrook, Jr.,
Steven W. Fitschen, James A. Davids, and David A. Bruce.
Briefs of amici curiae urging affrmance in No. 18–1460 were fled for
Concerned Women for America by Teresa Stanton Collett; for Judicial
Watch, Inc., by James F. Peterson and Meredith L. Di Liberto; and by
Whole Woman's Health et al. by Linda C. Goldstein and Jonathan Tam.
Timothy J. Newton and Kenneth W. Starr fled a brief for the Thomas
More Society as amicus curiae in both cases.

308 JUNE
MEDICAL SERVICES L. L. C. v. RUSSO
Opinion of Breyer, J.
signifcant health beneft. It found that conditions on admit-
ti
ng privileges common to hospitals throughout the State
have made and will continue to make it impossible for abor-
tion providers to obtain conforming privileges for reasons
that have nothing to do with the State's asserted interests
in promoting women's health and safety. And it found that
this inability places a substantial obstacle in the path of
women seeking an abortion. As in Whole Woman's Health,
the substantial obstacle the Act imposes, and the absence of
any health-related beneft, led the District Court to conclude
that the law imposes an undue burden and is therefore un-
constitutional. See U. S. Const., Amdt. 14, § 1.
The Court of Appeals agreed with the District Court's in-
terpretation of the standards we have said apply to regula-
tions on abortion. It thought, however, that the District
Court was mistaken on the facts. We disagree. We have
examined the extensive record carefully and conclude that it
supports the District Court's fndings of fact. Those fnd-
ings mirror those made in Whole Woman's Health in every
relevant respect and require the same result. We conse-
quently hold that the Louisiana statute is unconstitutional.
I
A
In March 2014, five months af ter Texas' admitti ng-
privileges requirement forced the closure of half of that
State's abortion clinics, Louisiana's Legislature began to hold
hear ings to consider a substantia lly identica l proposa l.
Compare Whole Woman's Health, 579 U. S., at 590–591, with
June Medical Services LLC v. Kliebert, 250 F. Supp. 3d 27,
53 (MD La. 2017); Record 11220. The proposal became law
in mid-June 2014. 2014 La. Acts p. 2330.
As was true in Texas, Louisiana law already required
abortion providers either to possess local hospital admitting
privileges or to have a patient “transfer” arrangement with
a physician who had such privileges. Compare Whole Wom-

Cite
as: 591 U. S. 299 (2020)
309
Opinion of Breyer, J.
an's Health, 579 U. S., at 609 (citing Tex. Admin. Code, tit.
25,
§ 139.56 (2009)), with former La. Admin. Code, tit. 48, pt.
I, § 4407(A)(3) (2003), 29 La. Reg. 706–707 (2003). The new
law eliminated that fexibility. Act 620 requires any doctor
who performs abortions to hold “active admitting privileges
at a hospital that is located not further than thirty miles
from the location at which the abortion is performed or in-
duced and that provides obstetrical or gynecological health
care services.” La. Rev. Stat. Ann. § 40:1061.10(A)(2)(a).
The statute defnes “active admitting privileges” to mean
that the doctor must be “a member in good standing ” of the
hospital's “medical staff . . . with the ability to admit a pa-
tient and to provide diagnostic and surgical services to such
patient.” Ibid.; La. Admin. Code, tit. 48, pt. I, § 4401. Fail-
ure to comply may lead to fnes of up to $4,000 per violation,
license revocation, and civil liability. See ibid.; La. Rev.
Stat. Ann. § 40:1061.29.
B
A few weeks before Act 620 was to take effect in Septem-
ber 2014, three abortion clinics and two abortion providers
fled a lawsuit in Federal District Court. They alleged that
Act 620 was unconstitutional because (among other things)
it imposed an undue burden on the right of their patients to
obtain an abortion. App. 24. The court later consolidated
their lawsuit with a similar, separate action brought by two
other clinics and two other abortion providers. (Like the
courts below, we shall refer to the two doctors in the frst
case as Doe 1 and Doe 2; we shall refer to the two doctors
in the second case as Doe 5 and Doe 6; and we shall refer to
two other doctors then practicing in Louisiana as Doe 3 and
Doe 4.)
The plaintiffs immediately asked the District Court to
issue a temporary restraining order (TRO), followed by a
preliminary injunction that would prevent the law from tak-
ing effect. June Medical Services LLC v. Caldwell, No. 14–
cv–00525 (MD La., Aug. 22, 2014), Doc. No. 5.

310 JUNE
MEDICAL SERVICES L. L. C. v. RUSSO
Opinion of Breyer, J.
The State of Louisiana, appearing for the defendant Secre-
t
ary of the Department of Health and Hospitals, fled a re-
sponse that opposed the plaintiffs' TRO request. App. 32–
39. But the State went on to say that, if the court granted
the TRO or if the parties reached an agreement that would
allow the plaintiffs time to obtain privileges without a TRO,
the court should hold a hearing on the preliminary injunction
request as soon as possible. Id., at 43. The State argued
that there was no reason to delay a ruling on the merits of
the plaintiffs' undue-burden claims. Id., at 43–44. It as-
serted that there was “no question that the physicians had
standing to contest the law.” Id., at 44. And, in light of
the State's “overriding interest in vindicating the constitu-
tionality of its admitting-privileges law,” the plaintiffs' suit
was “the proper vehicle” to “remov[e] any cloud upon” Act
620's “validity.” Id., at 45.
The District Court declined to stay the Act's effective
date. Instead, it provisionally forbade the State to enforce
the Act's penalties, while directing the plaintiff doctors to
continue to seek conforming privileges and to keep the court
apprised of their progress. See TRO in No. 14–cv–00525,
Doc. No. 31, pp. 2–3; see, e. g., App. 48–55, 64–82. These
updates continued through the date of the District Court's
decision. 250 F. Supp. 3d, at 77.
C
In June 2015, the District Court held a 6-day bench trial
on the plaintiffs' request for a preliminary injunction. It
heard live testimony from a dozen witnesses, including three
Louisiana abortion providers, June Medical's administrator,
the Secretary (along with a senior offcial) of the State's De-
partment of Health and Hygiene, and three experts each for
the plaintiffs and the State. Id., at 33–34. It also heard
from several other witnesses via deposition. Ibid. Based
on this evidentiary record, the court issued a decision in Jan-
uary 2016 declaring Act 620 unconstitutional on its face and

Cite
as: 591 U. S. 299 (2020)
311
Opinion of Breyer, J.
preliminarily enjoining its enforcement. June Medical Ser-
v
ices LLC v. Kliebert, 158 F. Supp. 3d 473 (MD La.).
The State immediately asked the Court of Appeals for the
Fifth Circuit to stay the District Court's injunction. The
Court of Appeals granted that stay. But we then issued our
own stay at the plaintiffs' request, thereby leaving the Dis-
trict Court's preliminary injunction (at least temporarily) in
effect. See June Medical Services, L. L. C. v. Gee, 814 F. 3d
319 (CA5), vacated, 577 U. S. 1185 (2016).
Approximately two months later, in June 2016, we issued
our decision in Whole Woman's Health, reversing the Fifth
Circuit's judgment in that case. We remanded this case for
reconsideration, and the Fifth Circuit in turn remanded the
case to the District Court permitting it to engage in further
factfnding. See June Medical Services, L.L.C. v. Gee, 2016
WL 11494731 (CA5, Aug. 24, 2016) (per curiam). All the
parties agreed that the District Court could rule on the
plaintiffs' request for a permanent injunction on the basis
of the record it had already developed. Minute Entry in
No. 14–cv–00525, Doc. No. 253. The court proceeded to do so.
D
Because the issues before us in this case primarily focus
upon the factual fndings (and fact-related determinations) of
the District Court, we set forth only the essential fndings
here, giving greater detail in the analysis that follows.
With respect to the Act's asserted benefts, the District
Court found that:
•
“[A]bortion in Louisiana has been extremely safe, with
particularly low rates of serious complications.” 250
F. Supp. 3d, at 65. The “testimony of clinic staff and
physicians demonstrated” that it “rarely . . . is necessary
to transfer patients to a hospital: far less than once a
year, or less than one per several thousand patients.”
Id., at 63. And “[w]hether or not a patient's treating

312 JUNE
MEDICAL SERVICES L. L. C. v. RUSSO
Opinion of Breyer, J.
physician has admitting privileges is not relevant to the
patient'
s care.” Id., at 64.
•
There was accordingly “ `no signifcant health-related
problem that the new law helped to cure.' . . . The record
does not contain any evidence that complications from
abortion were being treated improperly, nor any evi-
dence that any negative outcomes could have been
avoided if the abortion provider had admitting privileges
at a local hospital.” Id., at 86–87. (quoting Whole Wom-
an's Health, 579 U. S., at 610); see also 250 F. Supp. 3d,
at 86–87 (summarizing conclusions).
•
There was also “no credible evidence in the record that
Act 620 would further the State's interest in women's
health beyond that which is already insured under exist-
ing Louisiana law.” Id., at 65.
Turning to Act 620's impact on women's access to abortion,
the District Court found that:
•
Approximately 10,000 women obtain abortions in Louisi-
ana each year. Id., at 39. At the outset of this litiga-
tion, those women were served by six doctors at fve
abortion clinics. Id., at 40, 41–44. By the time the
court rendered its decision, two of those clinics had
closed, and one of the doctors (Doe 4) had retired, leav-
ing only Does 1, 2, 3, 5, and 6. Ibid.
•
“[N]otwithstanding the good faith efforts of Does 1, 2, 4,
5 and 6 to comply with the Act by getting active admit-
ting privileges at a hospital within 30 miles of where
they perform abortions, they have had very limited suc-
cess for reasons related to Act 620 and not related to
their competence.” Id., at 78.
•
These doctors' inability to secure privileges was “caused
by Act 620 working in concert with existing laws and
practices,” including hospital bylaws and criteria that
“preclude or, at least greatly discourage, the granting of
privileges to abortion providers.” Id., at 50.

Cite
as: 591 U. S. 299 (2020)
313
Opinion of Breyer, J.
•
These
requirements establish that admitting privileges
serve no “ `relevant credentialing function' ” because
physicians may be denied privileges “for reasons unre-
lated to competency.” Id., at 87 (quoting Whole Wom-
an's Health, 579 U. S., at 613).
•
They also make it “unlikely that the [a]ffected clinics will
be able to comply with the Act by recruiting new physi-
cians who have or can obtain admitting privileges.” 250
F. Supp. 3d, at 82.
•
Doe 3 testifed credibly “that, as a result of his fears,
and the demands of his private OB/GYN practice, if he
is the last physician performing abortion in either the
entire state or in the northern part of the state, he will
not continue to perform abortions.” Id., at 79; see also
id., at 78–79 (summarizing that testimony).
•
Enforcing the admitting-privileges requirement would
therefore “result in a drastic reduction in the number
and geographic distribution of abortion providers, reduc-
ing the number of clinics to one, or at most two, and
leaving only one, or at most two, physicians providing
abortions in the entire state,” Does 3 and 5, who would
only be allowed to practice in Shreveport and New Or-
leans. Id., at 87. Depending on whether Doe 3 stopped
practicing, or whether his retirement was treated as le-
gally relevant, the impact would be a 55%–70% reduction
in capacity. Id., at 81.
•
“The result of these burdens on women and providers,
taken together and in context, is that many women seek-
ing a safe, legal abortion in Louisiana will be unable to
obtain one. Those who can will face substantial obsta-
cles in exercising their constitutional right to choose
abortion due to the dramatic reduction in abortion serv-
ices.” Id., at 88; see id., at 79, 82, 87–88.
•
In sum, “Act 620 does not advance Louisiana's legitimate
interest in protecting the health of women seeking abor-

314 JUNE
MEDICAL SERVICES L. L. C. v. RUSSO
Opinion of Breyer, J.
tions. Instead, Act 620 would increase the risk of harm
to
women's health by dramatically reducing the avail-
ability of safe abortion in Louisiana.” Id., at 87; see also
id., at 65–66.
The District Court added that
“there is no legally signifcant distinction between this
case and [Whole Woman's Health]: Act 620 was modeled
after the Texas admitting privileges requirement, and it
functions in the same manner, imposing signifcant ob-
stacles to abortion access with no countervailing bene-
fts.” Id., at 88.
On the basis of these fndings, the court held that Act
620 and its implementing regulations are unconstitutional.
It entered an i n junc ti on per manently forbidding their
enforcement.
E
The State appealed. A divided panel of the Court of Ap-
peals reversed the District Court's judgment. The panel
majority concluded that Act 620's impact was “dramatically
less” than that of the Texas law invalidated in Whole Wom-
an's Health. June Medical Services L. L. C. v. Gee, 905
F. 3d 787, 791 (CA5 2018). “Despite its diligent effort to
apply [Whole Woman's Health] faithfully,” the majority
thought that the District Court had “clearly erred in conclud-
ing otherwise.” Id., at 815.
With respect to the Act's asserted benefts, the majority
thought that, “[u]nlike Texas, Louisiana presents some evi-
dence of a minimal beneft.” Id., at 805. Rejecting the
District Court's contrary fnding, it concluded that the
admitting-privileges requirement “performs a real, and pre-
viously unaddressed, credentialing function that promotes
the wellbeing of women seeking abortion.” Id., at 806.
The majority believed that the process of obtaining privi-
leges would help to “verify an applicant's surgical ability,

Cite
as: 591 U. S. 299 (2020)
315
Opinion of Breyer, J.
training, education, experience, practice record, and criminal
h
istory.” Id., at 805, and n. 53. And it accepted the State's
argument that the law “brings the requirements regarding
outpatient abortion clinics into conformity with the preexist-
ing requirement that physicians at ambulatory surgical cen-
ters (`ASCs') must have privileges at a hospital within the
community.” Id., at 805.
Moving on to Act 620's burdens, the appeals court wrote
that “everything turns on whether the privileges require-
ment actually would prevent doctors from practicing in Loui-
siana.” Id., at 807. Although the State challenged the Dis-
trict Court's fndings only with respect to Does 2 and 3, the
Court of Appeals went further. It disagreed with nearly
every one of the District Court's fndings, concluding that
“the district court erred in fnding that only Doe 5 would
be able to obtain privileges and that the application process
creates particular hardships and obstacles for abortion pro-
viders in Louisiana.” Id., at 810. The court noted that “[a]t
least three hospitals have proven willing to extend privi-
leges.” Ibid. It thought that “only Doe 1 has put forth a
good-faith effort to get admitting privileges,” while “Doe 2,
Doe 5, and Doe 6 could likely obtain privileges,” ibid., and
“Doe 3's personal choice to stop practicing cannot be legally
attributed to Act 620,” id., at 811.
Having rejected the District Court's fndings with respect
to all but one of the physicians, the Court of Appeals con-
cluded that “there is no evidence that Louisiana facilities will
close from Act 620.” Id., at 810. The appeals court allowed
that the Baton Rouge clinic where Doe 5 had not obtained
privileges would close. But it reasoned that “[b]ecause ob-
taining privileges is not overly burdensome, . . . the fact that
one clinic would have to close is not a substantial burden that
can currently be attributed to Act 620 as distinguished from
Doe 5's failure to put forth a good-faith effort.” Ibid. The
Court of Appeals added that the additional work that Doe 2
and Doe 3 would have to do to compensate for Doe 1's inabil-

316 JUNE
MEDICAL SERVICES L. L. C. v. RUSSO
Opinion of Breyer, J.
ity to perform abortions “does not begin to approach the
capacity
problem in” Whole Woman's Health. 905 F. 3d, at
812. It estimated that Act 620 would “resul[t] in a potential
increase” in waiting times “of 54 minutes at one of the state's
clinics for at most 30% of women.” Id., at 815.
On the basis of these fndings, the panel majority con-
cluded that Louisiana's admitting-privileges requirement
would impose no “substantial burden at all” on Louisiana
women seeking an abortion, “much less a substantial burden
on a large fraction of women as is required to sustain a facial
challenge.” Ibid. Judge Higginbotham dissented.
The Court of Appeals denied the plaintiffs' petition for en
banc rehearing over dissents by Judges Dennis and Higgin-
son, joined by four of their colleagues. See June Medical
Services, L. L. C. v. Gee, 913 F. 3d 573 (2019) (per curiam).
The plaintiffs then asked this Court to stay the Fifth Cir-
cuit's judgment. We granted their application, thereby
allowing the District Court's injunction to remain in effect.
June Medical Services, L. L. C. v. Gee, 586 U. S. 1135 (2019).
The plaintiffs subsequently fled a petition for certiorari ad-
dressing the merits of the appeals court's decision. The
State fled a cross-petition, challenging the plaintiffs' author-
ity to maintain this action. We granted both petitions.
II
We initially consider a procedural argument that the State
raised for the frst time in its cross-petition for certiorari.
As we have explained, the plaintiff abortion providers and
clinics in this case have challenged Act 620 on the ground
that it infringes their patients' rights to access an abortion.
The State contends that the proper parties to assert these
rights are the patients themselves. We think that the State
has waived that argument.
The State's argument rests on the rule that a party cannot
ordinarily “ `rest his claim to relief on the legal rights or in-
terests of third parties.' ” Kowalski v. Tesmer, 543 U. S.

Cite
as: 591 U. S. 299 (2020)
317
Opinion of Breyer, J.
125, 129 (2004) (quoting Warth v. Seldin, 422 U. S. 490, 499
(1975)).
This rule is “prudential.” 543 U. S., at 128–129.
It does not involve the Constitution's “case-or-controversy
requirement.” Id., at 129; see Craig v. Boren, 429 U. S. 190,
193 (1976); Singleton v. Wulff, 428 U. S. 106, 112 (1976).
And so, we have explained, it can be forfeited or waived.
See Craig, 429 U. S., at 193–194.
As we pointed out, supra, at 310, the State's memorandum
opposing the plaintiffs' TRO request urged the District
Court to proceed swiftly to the merits of the plaintiffs'
undue-burden claim. It argued that there was “no question
that the physicians had standing to contest” Act 620. App.
44. And it told the District Court that the Fifth Circuit had
found that doctors challenging Texas' “identical” law “had
third-party standing to assert their patients' rights.” Id.,
at 43–44. Noting that the Texas law had “already been up-
held,” the State asserted that it had “a keen interest in re-
moving any cloud upon the validity of its law.” Id., at 45.
It insisted that this suit was “the proper vehicle to do so.”
Ibid. The State did not mention its current objection until
it fled its cross-petition—more than fve years after it ar-
gued that the plaintiffs' standing was beyond question.
The State's unmistakable concession of standing as part of
its effort to obtain a quick decision from the District Court
on the merits of the plaintiffs' undue-burden claims bars our
consideration of it here. See Wood v. Milyard, 566 U. S. 463,
474 (2012); cf. post, at 400–401 (Alito, J., dissenting) (ad-
dressing the Court's approach to claims forfeited rather than
waived); post, at 415–416 (Gorsuch, J., dissenting) (address-
ing waiver of structural rather than prudential objections).
The State refers to the Fifth Circuit's fnding of standing
in Whole Woman's Health as an excuse for its concession.
Brief for Respondent in No. 18–1323, p. 52 (Brief for Re-
spondent). But the standing argument the State makes
here rests on reasons that it tells us are specifc to abortion
providers in Louisiana. See id., at 41–48. We are not per-

318 JUNE
MEDICAL SERVICES L. L. C. v. RUSSO
Opinion of Breyer, J.
suaded that the State could have thought it was precluded
from
making those arguments by a decision with respect to
Texas doctors.
And even if the State had merely forfeited its objection by
failing to raise it at any point over the last fve years, we
would not now undo all that has come before on that basis.
What we said some 45 years ago in Craig applies equally
today: “[A] decision by us to forgo consideration of the con-
stitutional merits”—after “the parties have sought or at
least have never resisted an authoritative constitutional de-
termination” in the courts below—“in order to await the ini-
tiation of a new challenge to the statute by injured third
parties would be impermissibly to foster repetitive and time-
consuming litigation under the guise of caution and pru-
dence.” 429 U. S., at 193–194 (quotation altered).
In any event, the rule the State invokes is hardly absolute.
We have long permitted abortion providers to invoke the
rights of their actual or potential patients in challenges to
abortion-related regulations. See, e. g., Whole Woman's
Health, 579 U. S., at 592; Gonzales, 550 U. S., at 133; Ayotte
v. Planned Parenthood of Northern New Eng., 546 U. S. 320,
324 (2006); Stenberg v. Carhart, 530 U. S. 914, 922 (2000); Ma-
zurek v. Armstrong, 520 U. S. 968, 969–970 (1997) (per cu-
riam); Casey, 505 U. S., at 845 (majority opinion); Akron v.
Akron Center for Reproductive Health, Inc., 462 U. S. 416,
440, n. 30 (1983); Planned Parenthood of Central Mo. v. Dan-
forth, 428 U. S. 52, 62 (1976); Doe v. Bolton, 410 U. S. 179,
188–189 (1973).
And we have generally permitted plaintiffs to assert third-
party rights in cases where the “ `enforcement of the chal-
lenged restriction against the litigant would result indi-
rectly in the violation of third parties' rights.' ” Kowalski,
543 U. S., at 130 (quoting Warth, 422 U. S., at 510); see, e. g.,
Department of Labor v. Triplett, 494 U. S. 715, 720 (1990)
(Scalia, J., for the Court) (attorney raising rights of clients

Cite
as: 591 U. S. 299 (2020)
319
Opinion of Breyer, J.
to challenge restrictions on fee arrangements); Craig, 429
U
. S., at 192 (convenience store raising rights of young men
to challenge sex-based restriction on beer sales); Doe, 410
U. S., at 188 (abortion provider raising the rights of pregnant
women to access an abortion); Carey v. Population Services
Int'l, 431 U. S. 678 (1977) (distributors of contraceptives rais-
ing rights of prospective purchasers to challenge restrictions
on sales of contraceptives); Eisenstadt v. Baird, 405 U. S. 438
(1972) (similar); Griswold v. Connecticut, 381 U. S. 479, 481
(1965) (similar); Sullivan v. Little Hunting Park, Inc., 396
U. S. 229 (1969) (white property owner raising rights of black
contractual counterparty to challenge discriminatory restric-
tions on ability to contract); Barrows v. Jackson, 346 U. S.
249 (1953) (similar). In such cases, we have explained, “the
obvious claimant” and “the least awkward challenger” is the
party upon whom the challenged statute imposes “legal du-
ties and disabilities.” Craig, 429 U. S., at 196–197; see
Akron, 462 U. S., at 440, n. 30; Danforth, 428 U. S., at 62;
Doe, 410 U. S., at 188.
The case before us lies at the intersection of these two
lines of precedent. The plaintiffs are abortion providers
cha l leng i ng a law that reg u lates their conduc t. The
“threatened imposition of governmental sanctions” for non-
compliance eliminates any risk that their claims are abstract
or hypothetical. Craig, 429 U. S., at 195. That threat also
assures us that the plaintiffs have every incentive to “resist
efforts at restricting their operations by acting as advocates
of the rights of third parties who seek access to their market
or function.” Ibid. And, as the parties who must actually
go through the process of applying for and maintaining ad-
mitting privileges, they are far better positioned than their
patients to address the burdens of compliance. See Single-
ton, 428 U. S., at 117 (plurality opinion) (observing that “the
physician is uniquely qualifed to litigate the constitutionality
of the State's interference with, or discrimination against,”

320 JUNE
MEDICAL SERVICES L. L. C. v. RUSSO
Opinion of Breyer, J.
a woman's decision to have an abortion). They are, in other
words,
“the least awkward” and most “obvious” claimants
here. Craig, 429 U. S., at 197.
Our dissenting colleagues suggest that this case is differ-
ent because the plaintiffs have challenged a law ostensibly
enacted to protect the women whose rights they are assert-
ing. See post, at 401–402 (opinion of Alito, J.); post, at 415
(opinion of Gorsuch, J.). But that is a common feature of
cases in which we have found third-party standing. The re-
striction on sales of 3.2% beer to young men challenged by a
drive-through convenience store in Craig was defended on
“public health and safety” grounds, including the premise
that young men were particularly susceptible to driving
while intoxicated. 429 U. S., at 199–200; see Hager, Gender
Discrimination and the Courts: New Ground to Cover, Wash-
ington Post, Sept. 26, 1976, p. 139. And the rule requiring
approval from the Department of Labor for attorney fee ar-
rangements challenged by a lawyer in Triplett was “de-
signed to protect [their clients] from their improvident con-
tracts, in the interest not only of themselves and their
families but of the public.” 494 U. S., at 722 (internal quota-
tion marks omitted).
Nor is this the frst abortion case to address provider
standing to challenge regulations said to protect women.
Both the hospitalization requirement in Akron, 462 U. S., at
435, and the hospital-accreditation requirement in Doe, 410
U. S., at 195, were defended as health and safety regulations.
And the ban on saline amniocentesis in Danforth was based
on the legislative fnding “that the technique is deleterious
to maternal health.” 428 U. S., at 76 (internal quotation
marks omitted).
In short, the State's strategic waiver and a long line of
well-established precedents foreclose its belated challenge to
the plaintiffs' standing. We consequently proceed to con-
sider the merits of the plaintiffs' claims.

Cite
as: 591 U. S. 299 (2020)
321
Opinion of Breyer, J.
III
A
Tur
ning to the merits, we apply the constitutional stand-
ards set forth in our earlier abortion-related cases, and in
particular in Casey and Whole Woman's Health. At the risk
of repetition, we remind the reader of the standards we de-
scribed above. In Whole Woman's Health, we quoted Casey
in explaining that “ `a statute which, while furthering [a]
valid state interest, has the effect of placing a substantial
obstacle in the path of a woman's choice cannot be considered
a permissible means of serving its legitimate ends.' ” 579
U. S., at 607 (quoting Casey, 505 U. S., at 877 (plurality opin-
ion)). We added that “ `[u]nnecessary health regulations' ”
impose an unconstitutional “ `undue burden' ” if they have
“ `the purpose or effect of presenting a substantial obstacle
to a woman seeking an abortion.' ” 579 U. S., at 607 (quoting
Casey, 505 U. S., at 878; emphasis added).
We went on to explain that, in applying these standards,
courts must “consider the burdens a law imposes on abortion
access together with the benefts those laws confer.” 579
U. S., at 607. We cautioned that courts “must review legis-
lative `factfnding under a deferential standard.' ” Id., at 608
(quoting Gonzales, 550 U. S., at 165). But they “must not
`place dispositive weight' on those `fndings,' ” for the courts
“ `retai[n] an independent constitutional duty to review fac-
tual fndings where constitutional rights are at stake.' ” 579
U. S., at 600 (quoting Gonzales, 550 U. S., at 165; emphasis
deleted).
We held in Whole Woman's Health that the trial court
faithfully applied these standards. It “considered the evi-
dence in the record—including expert evidence, presented in
stipulations, depositions, and testimony.” 579 U. S., at 609.
It “then weighed the asserted benefts” of the law “against
the burdens” it imposed on abortion access. Ibid. And it

322 JUNE
MEDICAL SERVICES L. L. C. v. RUSSO
Opinion of Breyer, J.
concluded that the balance tipped against the statute's con-
stituti
onality. The District Court in this suit did the same.
B
The Court of Appeals disagreed with the District Court,
not so much in respect to the legal standards that we have
just set forth, but because it did not agree with the factual
fndings on which the District Court relied in assessing both
the burdens that Act 620 imposes and the health-related ben-
efts it might bring. Compare, e. g., supra, at 311–314, with
supra, at 314–316. We have consequently reviewed the rec-
ord in detail ourselves. In doing so, we have applied well-
established legal standards.
We start from the premise that a district court's fndings
of fact, “whether based on oral or other evidence, must not
be set aside unless clearly erroneous, and the reviewing
court must give due regard to the trial court's opportunity
to judge the witnesses' credibility.” Fed. Rule Civ. Proc.
52(a)(6). In “ `applying [this] standard to the fndings of a
district court sitting without a jury, appellate courts must
constantly have in mind that their function is not to decide
factual issues de novo.' ” Anderson v. Bessemer City, 470
U. S. 564, 573 (1985) (quoting Zenith Radio Corp. v. Hazeltine
Research, Inc., 395 U. S. 100, 123 (1969)). Where “the dis-
trict court's account of the evidence is plausible in light of
the record viewed in its entirety, the court of appeals may
not reverse it even though convinced that had it been sitting
as the trier of fact, it would have weighed the evidence dif-
ferently.” Anderson, 470 U. S., at 573–574. “A fnding that
is `plausible' in light of the full record—even if another is
equally or more so—must govern.” Cooper v. Harris, 581
U. S. 285, 293 (2017).
Our dissenting colleagues suggest that a different, less-
deferential standard should apply here because the District
Court enjoined the admitting-privileges requirement before
it was enforced. See post, at 387–388 (opinion of Alito, J.);
post, at 419–422 (opinion of Gorsuch, J.). We are aware of no

Cite
as: 591 U. S. 299 (2020)
323
Opinion of Breyer, J.
authority suggesting that appellate scrutiny of factual deter-
mi
nations varies with the timing of a plaintiff 's lawsuit or a
trial court's decision. And, in any event, the record belies
the dissents' claims that the District Court's fndings in this
case were “conjectural” or premature. As we have ex-
plained, the District Court's order on the plaintiffs' motion
for a temporary restraining order suspended only Act 620's
penalties. The plaintiffs were required to continue in their
efforts to obtain admitting privileges. See supra, at 310.
The District Court supervised those efforts through the trial
and beyond. See 250 F. Supp. 3d, at 77. It based its fnd-
ings on this real-world evidence, not speculative guesswork.
Nor can we agree with the suggestion that the timing of
the District Court's decision somehow prejudiced the State.
From the start, the State urged that the District Court de-
cide the merits of the plaintiffs' claims without awaiting a
decision on their applications for admitting privileges. See
App. 43–44. And, when this case returned to the District
Court in August 2016, following our decision in Whole Wom-
an's Health, the State stipulated that the case was ripe for
decision on the record as it stood in June 2015. See supra,
at 310–311. In short, we see no legal or practical basis to
depart from the familiar standard that applies to all “[f]ind-
ings of fact.” Fed. Rule Civ. Proc. 52(a).
Under that familiar standard, we fnd that the testimony
and other evidence contained in the extensive record devel-
oped over the 6-day trial support the District Court's ulti-
mate conclusion that, “[e]ven if Act 620 could be said to fur-
ther women's health to some marginal degree, the burdens
it imposes far outweigh any such beneft, and thus the Act
imposes an unconstitutional undue burden.” 250 F. Supp.
3d, at 88.
IV
The District Court's Substantial-Obstacle Determination
The District Court found that enforcing the admitting-
privileges requirement would “result in a drastic reduction

324 JUNE
MEDICAL SERVICES L. L. C. v. RUSSO
Opinion of Breyer, J.
in the number and geographic distribution of abortion pro-
v
iders.” Id., at 87. In light of demographic, economic, and
other evidence, the court concluded that this reduction would
make it impossible for “many women seeking a safe, legal
abortion in Louisiana . . . to obtain one” and that it would
impose “substantial obstacles” on those who could. Id., at
88. We consider each of these fndings in turn.
A
Act 620's Effect on Abortion Providers
We begin with the District Court's fndings in respect to
Act 620's impact on abortion providers. As we have said,
the court found that the Act would prevent Does 1, 2, and 6
from providing abortions. And it found that the Act would
bar Doe 5 from working in his Baton Rouge-based clinic,
relegating him to New Orleans. See supra, at 312–313.
1
In Whole Woman's Health, we said that, by presenting
“direct testimony” from doctors who had been unable to se-
cure privileges, and “plausible inferences to be drawn from
the timing of the clinic closures” around the law's effective
date, the plaintiffs had “satisfed their burden” to establish
that the Texas admitting-privileges requirement caused the
closure of those clinics. 579 U. S., at 614.
We wrote that these inferences were bolstered by the sub-
missions of amici in the medical profession, which “de-
scribe[d] the undisputed general fact that hospitals often”
will restrict admitting privileges to doctors likely to seek a
“certain number of admissions per year.” Id., at 612 (inter-
nal quotation marks omitted). The likely effect of such re-
quirements was that abortion providers “would be unable to
maintain admitting privileges or obtain those privileges for
the future, because the fact that abortions are so safe meant
that providers were unlikely to have any patients to admit.”
Id., at 613. We also referred to “common prerequisites to

Cite
as: 591 U. S. 299 (2020)
325
Opinion of Breyer, J.
obtaining admitting privileges that have nothing to do with
abi
lity to perform medical procedures”; for example, require-
ments that doctors have “treated a high number of patients
in the hospital setting in the past year, clinical data require-
ments, residency requirements, and other discretionary fac-
tors.” Ibid.
To illustrate how these criteria impacted abortion provid-
ers, we noted the example of an obstetrician with 38 years'
experience who had been denied admitting privileges for rea-
sons “ `not based on clinical competence considerations.' ”
Ibid. This, we said, showed that the law served no “rele-
vant credentialing function,” but prevented qualifed provid-
ers from serving women who seek an abortion. Ibid. And
that, in turn, “help[ed] to explain why the new [law's admit-
ting-privileges] requirement led to the closure of ” so many
Texas clinics. Id., at 612.
The evidence on which the District Court relied in this
case is even stronger and more detailed. The District Court
supervised Does 1, 2, 5, and 6 for over a year and a half as
they tried, and largely failed, to obtain conforming privileges
from 13 relevant hospitals. See 250 F. Supp. 3d, at 77–78;
App. 48–55, 64–82. The court heard direct evidence that
some of the doctors' applications were denied for reasons
that had nothing to do with their ability to perform abortions
safely. 250 F. Supp. 3d, at 68–70, 76–77; App. 1310, 1435–
1436. It also compiled circumstantial evidence that explains
why other applications were denied and explains why, given
the costs of applying and the reputational risks that accom-
pany rejection, some providers could have chosen in good
faith not to apply to every qualifying hospital. Id., at 1135,
1311 (discussing the costs associated with unsuccessful appli-
cations). That circumstantial evidence includes documents
and testimony that described the processes Louisiana hospi-
tals follow when considering applications for admitting privi-
leges, including requirements like the ones we cited in Whole
Woman's Health that are unrelated to a doctor's competency

326 JUNE
MEDICAL SERVICES L. L. C. v. RUSSO
Opinion of Breyer, J.
to perform abortions. See generally Brief for Medical Staff
Professi
onals as Amici Curiae 11–30 (reviewing the hospital
bylaws in the record).
The evidence shows, among other things, that the fact that
hospital admissions for abortion are vanishingly rare means
that, unless they also maintain active OB/GYN practices,
abortion providers in Louisiana are unlikely to have any re-
cent in-hospital experience. 250 F. Supp. 3d, at 49. Yet
such experience can well be a precondition to obtaining privi-
leges. Doe 2, a board-certifed OB/GYN with nearly 40
years' experience, testifed that he had not “done any in-
hospital work in ten years” and that just two of his patients
in the preceding 5 years had required hospitalization. App.
387, 400. As a result, he was unable to comply with one
hospital's demand that he produce data on “patient ad-
missions and management, consultations, and procedures
performed” in-hospital before his application could be “pro-
cessed.” Id., at 1435; see id., at 437–438. Doe 1, a board-
certifed family doctor with over 10 years' experience, was
similarly unable to “submit documentation of hospital admis-
sions and management of patients.” Id., at 1436.
The evidence also shows that many providers, even if they
could initially obtain admitting privileges, would be unable
to keep them. That is because, unless they have a practice
that requires regular in-hospital care, they will lose the priv-
ileges for failing to use them. Doe 6, a board-certifed OB/
GYN practitioner with roughly 50 years' experience, pro-
vides only medication abortions. Id., at 1308. Of the thou-
sands of women he served over the decade before the Dis-
trict Court's decision, during which he also performed
surgical abortions, just two required a direct transfer to a
hospital and one of them was treated without being ad-
mitted. Id., at 1309. That safety record would make it im-
possible for Doe 6 to maintain privileges at any of the many
Louisiana hospitals that require newly appointed physicians
to undergo a process of “focused professional practice evalua-

Cite
as: 591 U. S. 299 (2020)
327
Opinion of Breyer, J.
tion,” in which they are observed by hospital staff as they
per
form in-hospital procedures. See Record 2635, 2637,
2681, 9054; Brief for Medical Staff Professionals as Amici
Curiae 28–29 (describing this practice); cf. Record 10755 (re-
quiring an “on-going review” of practice “in the Operating
Room”). And it would likewise disqualify him at hospitals
that require physicians to admit a minimum number of pa-
tients, either initially or on an ongoing basis. See, e. g., id.,
at 9040, 9068–9069, 9150–9153; cf. App. 1193, 1182 (provider
with no patient contacts in frst year assigned to “Affliate”
status, without admitting privileges).
The evidence also shows that opposition to abortion played
a signifcant role in some hospitals' decisions to deny admit-
ting privileges. 250 F. Supp. 3d, at 48–49, 51–53 (collecting
evidence). Some hospitals expressly bar anyone with privi-
leges from performing abortions. App. 1180, 1205. Others
are unwilling to extend privileges to abortion providers as a
matter of discretion. Id., at 1127–1129. For example, Doe
2 testifed that he was told not to bother asking for admitting
privileges at University Health in Shreveport because of his
abortion work. Id., at 383–384. And Doe 1 was told that
his abortion work was an impediment to his application.
Id., at 1315–1316.
Still other hospitals have requirements that abortion pro-
viders cannot satisfy because of the hostility they face in
Louisiana. Many Louisiana hospitals require applicants to
identify a doctor (called a “covering physician”) willing to
serve as a backup should the applicant admit a patient and
then for some reason become unavailable. See Record 9154,
9374, 9383, 9478, 9667, 10302, 10481, 10637, 10659–10661,
10676. The District Court found “that opposition to abor-
tion can present a major, if not insurmountable hurdle, for
an applicant getting the required covering physician.” 250
F. Supp. 3d, at 49; cf. Whole Woman's Health, 579 U. S., at
613 (citing testimony describing similar problems faced by
Texas providers seeking covering physicians). Doe 5 is a

328 JUNE
MEDICAL SERVICES L. L. C. v. RUSSO
Opinion of Breyer, J.
board-certifed OB/GYN who had been practicing for more
than
nine years at the time of trial. Of the thousands of
abortions he performed in the three years prior to the Dis-
trict Court's decision, not one required a direct transfer to a
hospital. App. 1134. Yet he was unable to secure privi-
leges at three Baton Rouge hospitals because he could not
fnd a covering physician willing to be publicly associated
with an abortion provider. Id., at 1335–1336. Doe 3, a
board-certifed OB/GYN with nearly 45 years of experience,
testifed that he, too, had diffculty arranging coverage be-
cause of his abortion work. Id., at 200–202.
Just as in Whole Woman's Health, the experiences of the
individual doctors in this case support the District Court's
factual fnding that Louisiana's admitting-privileges require-
ment, like that in Texas' law, serves no “ `relevant credential-
ing function.' ” 250 F. Supp. 3d, at 87 (quoting Whole Wom-
an's Health, 579 U. S., at 613).
2
The Court of Appeals found another explanation for the
doctors' inability to obtain privileges more compelling. It
conceded that Doe 1 would not be able to obtain admitting
privileges in spite of his good-faith attempts. It concluded,
however, that Does 2, 5, and 6 had acted in bad faith. 905
F. 3d, at 807. The problem is that the law requires appellate
courts to review a trial court's fndings under the deferential
clear-error standard we have described. See supra, at 322–
323. Our review of the record convinces us that the Court
of Appeals misapplied that standard.
Justice Alito does not dispute that the District Court's
fndings are not “clearly erroneous.” He argues instead that
both the District Court and the Court of Appeals applied the
wrong legal standard to the record in this case. By asking
whether the doctors acted in “good faith,” he contends, the
courts below failed to account for the doctors' supposed “in-
centive to do as little as” possible to obtain conforming privi-

Cite
as: 591 U. S. 299 (2020)
329
Opinion of Breyer, J.
leges. Post, at 388–390 (dissenting opinion); cf. post, at 419–
420
(Gorsuch, J., dissenting). But that is not a legal argu-
ment at all. It is simply another way of saying that the
doctors acted in bad faith. The District Court, after moni-
toring the doctors' efforts for a year and a half, found other-
wise. And “[w]hen the record is examined in light of the
appropriately deferential standard, it is apparent that it con-
tains nothing that mandates a fnding that the District
Court's conclusion was clearly erroneous.” Anderson, 470
U. S., at 577.
Doe 2
The District Court found that Doe 2 tried in good faith to
get admitting privileges within 30 miles of his Shreveport-
area clinic. 250 F. Supp. 3d, at 68. The Court of Appeals
thought that conclusion clearly erroneous for three reasons.
First, the appeals court suggested that Doe 2 failed to sub-
mit the data needed to process his application to Bossier's
Willis-Knighton Health Center. 905 F. 3d, at 808. It is true
that Doe 2 submitted no additional information in response
to the last letter he received from Willis-Knighton. But the
record explains that failure. Doe 2 reasonably believed
there was no point in doing so. The hospital's letter ex-
plained that the data Doe 2 had already “submitted supports
the outpatient [abor ti on] procedures you perfor m[ed]. ”
App. 1435. But, the letter added, this data did “not support
your request for hospital privileges” because it did not allow
the hospital to “evaluate patient admissions and manage-
ment, consultations, and procedures performed. ” Ibid.
Doe 2 testifed at trial that he understood this to mean that
he would have to submit records of hospital admissions, even
though he had not “done any in-hospital work in ten years.”
Id., at 387; see id., at 437 (“I've explained that that informa-
tion doesn't exist”). Doe 2's understanding was consistent
with Willis-Knighton's similar letter to Doe 1, which explic-
itly stated that “we require that you submit documentation
of hospital admissions and management of patients . . . .”

330 JUNE
MEDICAL SERVICES L. L. C. v. RUSSO
Opinion of Breyer, J.
Id., at 1436. The record also shows that Doe 2 could not
h
ave maintained the “adequate number of inpatient con-
tacts” Willis-Knighton requires to support continued privi-
leges. Record 9640; see App. 387–390, 404. Justice Alito
faults Doe 2 for failing to pursue an application for “courtesy
staff ” privileges. See post, at 394. For one thing, it is far
from clear that courtesy privileges entitle a physician to
admit patients, as Act 620 requires. Compare, e. g., Record
9640 with id., at 9643. For another, that would not solve the
problem that Doe 2 lacked the required in-hospital experi-
ence. Justice Alito wonders whether Willis-Knighton
might have conferred courtesy privileges even without that
experience. But the factors the hospital considers for both
tiers of privileges are facially identical. Id., at 9669. We
have no license to reverse a trial court's factual fndings
based on speculative inferences from facts not in evidence.
Second, the Court of Appeals found Doe 2's explanation
that Christus Schumpert Hospital “would not staff an abor-
tion provider” to be “blatantly contradicted by the record.”
905 F. 3d, at 808. The record, however, contains Christus'
bylaws. They state that “[n]o activity prohibited by” the
Ethical and Religious Directives to which the hospital sub-
scribes “shall be engaged in by any Medical Staff appointee
or other person exercising clinical privileges at the Health
System.” App. 1180. These directives provide that abor-
tion “is never permitted.” Id., at 1205. And they warn
against “the danger of scandal in any association with abor-
tion providers.” Ibid.
The State suggests that the Court of Appeals, in speaking
of a “contradic[tion],” was referring to the fact that Doe 3
had admitting privileges at Christus, as had Doe 2 at an ear-
lier time. Brief for Respondent 75. Doe 3 testifed, how-
ever, that he did not know whether Christus was “aware that
I was performing abortions” and that he did not “feel like
testing the waters there”—i. e., by “asking [Christus] how
they would feel” if they were aware that he “was performing

Cite
as: 591 U. S. 299 (2020)
331
Opinion of Breyer, J.
abortions.” App. 273. And nothing in the record suggests
that
Christus, 10 years earlier, was aware of Doe 2's connec-
tion with abortion. Justice Alito imagines a number of
ways that Christus may have become aware of Doe 2's or
Doe 3's abortion practice. See post, at 393–394, and n. 10
(dissenting opinion). The State apparently did not see ft to
test these theories or probe the doctors' accounts on cross-
examination, however. And the District Court's fnding of
good faith is plainly permissible on the record before us.
Finally, the Court of Appeals faulted Doe 2 for failing to
apply to Minden Hospital. The record also explains that de-
cision. Minden subjects all new appointees to “not less
than” six months of “focused professional practice evalua-
tion.” Record 9281; see also id., at 9252. That evaluation
requires an assessment of the provider's in-hospital work.
See supra, at 326–327. Doe 2 could not meet that require-
ment because, as we have said, Doe 2 does not do in-hospital
work, and only two of his patients in the past fve years have
required hospitalization. App. 400. Moreover, Minden's
bylaws express a preference for applicants whom “members
of the current Active Staff of the Hospital” have recom-
mended. Id., at 1211. Doe 2 testifed that Minden Hospital
was “a smaller hospital,” “very close to the [geographic] lim-
its,” where he “[did]n't really know anyone.” Id., at 454. He
applied to those hospitals where he believed he had the high-
est likelihood of success. Ibid. Given this evidence, the
Fifth Circuit was wrong to conclude that the District Court's
fndings in respect to Doe 2 were “clearly erroneous.” See
Anderson, 470 U. S., at 575.
Doe 5
The District Court found that Doe 5 was unable to obtain
admitting privileges at three hospitals in range of his Baton
Rouge clinic in spite of his good-faith efforts to satisfy each
hospital's requirement that he fnd a covering physician.
250 F. Supp. 3d, at 76; see App. 1334–1335 (Women's Hospi-

332 JUNE
MEDICAL SERVICES L. L. C. v. RUSSO
Opinion of Breyer, J.
tal); Record 2953 (Baton Rouge General), 10659–10661 (Lane
Reg
ional). The Court of Appeals disagreed. It thought
that Doe 5's efforts refected a “lackluster approach” be-
cause he asked only one doctor to cover him. 905 F. 3d,
at 809.
The record shows, however, that Doe 5 asked the doctor
most likely to respond affrmatively: the doctor with whom
Doe 5's Baton Rouge clinic already had a patient transfer
agreement. App. 1135. Yet Doe 5 testifed that even this
doctor was “too afraid to be my covering physician at the
hospital” because, while the transfer agreement could appar-
ently be “kept confdential,” he feared that an agreement to
serve as a covering physician would not remain a secret.
Id., at 1135–1136. And, if the matter became well known,
the doctor whom Doe 5 asked worried that it could make him
a target of threats and protests. Ibid.
Doe 5 was familiar with the problem. Anti-abortion pro-
tests had previously forced him to leave his position as a
staff member of a hospital northeast of Baton Rouge. Id.,
at 1137–1138, 1330. And activists had picketed the school
attended by the children of a former colleague, who then
stopped performing abortions as a result. Record 14036–
14037.
With his own experience and their existing relationship in
mind, Doe 5 could have reasonably thought that, if this doc-
tor wouldn't serve as his covering physician, no one would.
And it was well within the District Court's discretion to
credit that reading of the record. Cf. Cooper, 581 U. S., at
293. Doe 5's testimony was internally consistent and con-
sistent with what the District Court called the “mountain of
un-contradicted and un-objected to evidence” in the record
that supported its general fnding “that opposition to abor-
tion can present a major, if not insurmountable hurdle, for an
applicant getting the required covering physician,” including
Doe 3's similar experience. 250 F. Supp. 3d, at 51, 49; see
id., at 51–53; App. 200–202.

Cite
as: 591 U. S. 299 (2020)
333
Opinion of Breyer, J.
The Court of Appeals did not address this general fnding
or
the evidence the District Court relied on to support it,
and neither do our dissenting colleagues. Cf. post, at 396–
397 (opinion of Alito, J.); post, at 420 (opinion of Gorsuch,
J.). The Court of Appeals pointed to what it described as
Doe 4's testimony that “fnding a covering physician is not
overly burdensome.” 905 F. 3d, at 809. Doe 4's actual tes-
timony was that he did not believe requiring doctors to ob-
tain a covering physician was “an overburdensome require-
ment for admitting privileges.” Record 14154. In context,
that statement is most naturally read as saying that such a
requirement was reasonable, not that it was easy to fulfll.
In fact, Doe 4 testifed that he had been unable to apply to
two hospitals for admitting privileges because he could not
fnd a covering physician. Id., at 14154–14155. Moreover,
Doe 4's statement referred to his efforts to obtain admitting
privileges in New Orleans, not in Baton Rouge. Ibid.
Doe 5 testifed that he could more easily fnd a covering phy-
sician in New Orleans (where he did obtain privileges) be-
cause attitudes toward abortion there were less hostile than
in Baton Rouge, so the doctors' testimony would be con-
sistent even under the Fifth Circuit's view. App. 1335–
1336. Once again, the appeals court's conclusion cannot be
squared with the standard of review. Cf. Anderson, 470
U. S., at 575.
Doe 6
Finally, the District Court found that, notwithstanding his
good-faith efforts, Doe 6 would not be able to obtain admit-
ting privileges within 30 miles of the clinic in New Orleans
where he worked. The Court of Appeals did not question
Doe 6's decision not to apply to Tulane Hospital. Nor did it
take issue with the District Court's fnding that his applica-
tion to East Jefferson Hospital had been denied de facto
through no fault of his own. 250 F. Supp. 3d, at 77; App. 54.
But the appeals court reversed the District Court's fnding

334 JUNE
MEDICAL SERVICES L. L. C. v. RUSSO
Opinion of Breyer, J.
on the ground that Doe 6 should have (but did not) apply for
admitti
ng privileges at seven other hospitals in New Or-
leans, including Touro Hospital, which had granted limited
privileges to Doe 5. 905 F. 3d, at 809–810.
Doe 6 testifed that he did not apply to other hospitals
because he did not admit a suffcient number of patients to
receive active admitting privileges. App. 1310. As we
have explained, supra, at 326–327, Doe 6 provides only medi-
cation abortions involving no surgical intervention. See
App. 1308. The State's own admitting-privileges expert, Dr.
Robert Marier, testifed that a doctor in Doe 6's position
would “probably not” be able to obtain “active admitting
and surgical privileges” at any hospital. Id., at 884; see
250 F. Supp. 3d, at 44 (fnding Dr. Marier “generally well
qualifed” to express an opinion on “the issue of admitting
privileges and hospital credentialing ”).
The record contains the bylaws of four of the seven hospi-
tals to which the Court of Appeals referred. All four di-
rectly support the testimony of Doe 6 and the State's expert.
Three hospitals require doctors who receive admitting privi-
leges to undergo a process of “focused professional practice
evaluation.” See Record 2635, 2637, 2681 (Touro Hospital),
9054 (New Orleans East Hospital), 10755 (East Jefferson
Hospital). As we have explained, this evaluation requires
hospital staff to observe a doctor with admitting privileges
while he or she performs a certain number of procedures.
See supra, at 326–327. If the doctor admits no patients (and
Doe 6 has no patients requiring admission), there is nothing
to observe. Another hospital requires physicians to admit a
minimum number of patients, either initially or after receiv-
ing admitting privileges. Record 9150–9153 (West Jefferson
Hospital). And one requires both. Id., at 9040, 9069 (New
Orleans East Hospital). The record apparently is silent as
to the remaining three hospitals, but that silence cannot con-
tradict the well-supported testimony of Doe 6 and the State's
expert that Doe 6 would not receive admitting privileges

Cite
as: 591 U. S. 299 (2020)
335
Opinion of Breyer, J.
from any of them. Good faith does not require an exercise
i
n futility.
We recognize that Doe 5 was able to secure limited admit-
ting privileges at Touro Hospital, to which Doe 6 did not
apply. But, unlike Doe 6, Doe 5 primarily performs surgical
abortions. App. 1330. And while Doe 5 was a hospital-
based physician as recently as 2012, Doe 6 has not held privi-
leges at any hospital since 2005. Id., at 1310, 1329. Doe 5's
success therefore does not directly contradict the evidence
that we have described in respect to Doe 6 or render the
District Court's conclusion as to Doe 6 clearly erroneous.
And, as we have said, “[a] fnding that is `plausible' in light
of the full record—even if another is equally or more so—
must govern.” Cooper, 581 U. S., at 293.
Without actually disputing any of the evidence we have
discussed, Justice Alito maintains that the plaintiffs could
have introduced still more evidence to support the District
Court's determination. See post, at 396. As we have said,
however, “the trial on the merits should be `the “main event”
. . . rather than a “tryout on the road.” ' ” Anderson, 470
U. S., at 575. “[T]he parties to a case on appeal have al-
ready been forced to concentrate their energies and re-
sources on persuading the trial judge that their account of
the facts is the correct one; requiring them to persuade three
more judges at the appellate level”—let alone another nine
in this Court—“is requiring too much.” Ibid.
Other Doctors
Finally, Justice Alito and Justice Gorsuch suggest
that the District Court failed to account for the possibility
that new abortion providers might eventually replace Does
1, 2, 3, 5, and 6. See post, at 387–388 (opinion of Alito, J.);
post, at 419–421 (opinion of Gorsuch, J.). But the Court of
Appeals did not dispute, and the record supports, the Dis-
trict Court's additional fnding that, for “the same reasons
that Does 1, 2, 4, 5, and 6 have had diffculties getting active

336 JUNE
MEDICAL SERVICES L. L. C. v. RUSSO
Opinion of Breyer, J.
admitting privileges, reasons unrelated to their competence,
.
. . it is unlikely that the [a]ffected clinics will be able to
comply with the Act by recruiting new physicians who have
or can obtain admitting privileges.” 250 F. Supp. 3d, at 82.
B
Act 620's Impact on Abortion Access
The District Court drew from the record evidence, includ-
ing the factual fndings we have just discussed, several con-
clusions in respect to the burden that Act 620 is likely to
impose upon women's ability to access abortions in Louisi-
ana. To better understand the signifcance of these conclu-
sions, the reader should keep in mind the geographic distri-
bution of the doctors and their clinics. Figure 1 shows the
distribution of doctors and clinics at the time of the District
Court's decision. Figure 2 shows the projected distribution
if the admitting-privileges requirement were enforced, as
found by the District Court. The fgures in parentheses in-
dicate the approximate number of abortions each physician
performed annually, according to the District Court.
Figure 1 — Distribution of Abortion Clinics and Providers at the Time of
the District Court's Decision

Cite
as: 591 U. S. 299 (2020)
337
Opinion of Breyer, J.
Figure 2 — Projected Distribution of Abortion Clinics and Providers Fol-
low
ing Enforcement of Act 620
1
As we have seen, enforcing the admitting-privileges re-
quirement would eliminate Does 1, 2, and 6. The District
Court credited Doe 3's uncontradicted, in-court testimony
that he would stop performing abortions if he was the last
provider in northern Louisiana. 250 F. Supp. 3d, at 79; see
App. 263–265. So the departure of Does 1 and 2 would also
eliminate Doe 3. That would leave only Doe 5. And Doe
5's inability to obtain privileges in the Baton Rouge area
would leave Louisiana with just one clinic with one provider
to serve the 10,000 women annually who seek abortions in
the State. 250 F. Supp. 3d, at 80, 87–88; cf. Whole Woman's
Health, 579 U. S., at 613–614.
Working full time in New Orleans, Doe 5 would be able to
absorb no more than about 30% of the annual demand for
abortions in Louisiana. App. 1134, 1331; see id., at 1129.
And because Doe 5 does not perform abortions beyond 18
weeks, women between 18 weeks and the state legal limit
of 20 weeks would have little or no way to exercise their
constitutional right to an abortion. Id., at 1330–1331.
Those women not altogether prevented from obtaining an
abortion would face other burdens. As in Whole Woman's

338 JUNE
MEDICAL SERVICES L. L. C. v. RUSSO
Opinion of Breyer, J.
Health, the reduction in abortion providers caused by Act
620
would inevitably mean “longer waiting times, and in-
creased crowding.” 579 U. S., at 613. The District Court
heard testimony that delays in obtaining an abortion in-
crease the risk that a woman will experience complications
from the procedure and may make it impossible for her to
choose a noninvasive medication abortion. App. 220, 290,
312–313; see also id., at 1139, 1305, 1313, 1316, 1323.
Even if they obtain an appointment at a clinic, women who
might previously have gone to a clinic in Baton Rouge or
Shreveport would face increased driving distances. New
Orleans is nearly a fve hour drive from Shreveport; it is over
an hour from Baton Rouge; and Baton Rouge is more than
four hours from Shreveport. The impact of those increases
would be magnifed by Louisiana's requirement that every
woman undergo an ultrasound and receive mandatory coun-
seling at least 24 hours before an abortion. La. Rev. Stat.
Ann. § 40:1061.10(D). A Shreveport resident seeking an
abortion who might previously have obtained care at one of
that city's local clinics would either have to spend nearly 20
hours driving back and forth to Doe 5's clinic twice, or else
fnd overnight lodging in New Orleans. As the District
Court stated, both experts and laypersons testifed that the
burdens of this increased travel would fall disproportionately
on poor women, who are least able to absorb them. App.
106–107, 178, 502–508, 543; see also id., at 311–312.
2
We note that the Court of Appeals also faulted the District
Court for factoring Doe 3's departure into its calculations.
The appeals court thought that Doe 3's personal choice to
stop practicing could not be attributed to Act 620. 905 F. 3d,
at 810–811. That is beside the point. Even if we pretended
as though (contrary to the record evidence) Doe 3 would con-
tinue to provide abortions at Shreveport-based Hope Clinic,
the record nonetheless supports the District Court's alterna-

Cite
as: 591 U. S. 299 (2020)
339
Opinion of Breyer, J.
tive fnding that Act 620's burdens would remain substantial.
See
250 F. Supp. 3d, at 80–81, 84, 87.
The record tells us that Doe 3 is presently able to see
roughly 1,000–1,500 women annually. Id., at 81; see App.
207, 243–244. Doe 3 testifed that this was in addition to
“working very, very long hours maintaining [his] private
[OB/GYN] practice.” Id., at 265, 1323; see id., at 118, 1147.
And, the District Court found that Doe 5 can perform no
more than roughly 3,000 abortions annually. See supra, at
337. So even if Doe 3 remained active in Shreveport, the
annual demand for abortions in Louisiana would be more
than double the capacity. And although the availability of
abortions in Shreveport might lessen the driving distances
faced by some women, it would still leave thousands of Loui-
siana women with no practical means of obtaining a safe,
legal abortion, and it would not meaningfully address the
health risks associated with crowding and delay for those
able to secure an appointment with one of the State's two
remaining providers.
***
Taken together, we think that these fndings and the evi-
dence that underlies them are suffcient to support the Dis-
trict Court's conclusion that Act 620 would place substantial
obstacles in the path of women seeking an abortion in
Louisiana.
V
Benefts
We turn fnally to the law's asserted benefts. The Dis-
trict Court found that there was “ `no signifcant health-
related problem that the new law helped to cure.' ” 250
F. Supp. 3d, at 86 (quoting Whole Woman's Health, 579 U. S.,
at 610). It found that the admitting-privileges requirement
“[d]oes [n]ot [p]rotect [w]omen's [h]ealth,” provides “no sig-
nifcant health benefts,” and makes no improvement to
women's health “compared to prior law.” 250 F. Supp. 3d,

340 JUNE
MEDICAL SERVICES L. L. C. v. RUSSO
Opinion of Breyer, J.
at 86 (boldface deleted). Our examination of the record con-
v
inces us that these fndings are not “clearly erroneous.”
First, the D istr ic t Cour t found that the admitti ng-
privileges requirement serves no “relevant credentialing
function.” Id., at 87 (quoting Whole Woman's Health, 579
U. S., at 613). As we have seen, hospitals can, and do, deny
admitting privileges for reasons unrelated to a doctor's abil-
ity safely to perform abortions. And Act 620's requirement
that physicians obtain privileges at a hospital within 30 miles
of the place where they perform abortions further con-
strains providers for reasons that bear no relationship to
competence.
Moreover, while “competency is a factor” in credentialing
decisions, 250 F. Supp. 3d, at 46, hospitals primarily focus
upon a doctor's ability to perform the inpatient, hospital-
based procedures for which the doctor seeks privileges—not
outpatient abortions. App. 877, 1373; see id., at 907; Brief
for Medical Staff Professionals as Amici Curiae 26; Brief for
American College of Obstetricians and Gynecologists et al. as
Amici Curiae 12. Indeed, the State's admitting-privileges
expert, Dr. Robert Marier, testifed that, when he served
as the Executive Director of Louisiana's Board of Medical
Examiners, he concurred in the Board's position that a physi-
cian was competent to perform frst-trimester surgical abor-
tions and to “recognize and address complications from the
procedure” so long as they had completed an accredited resi-
dency in obstetrics and gynecology or been trained in abor-
tion procedures during another residency—irrespective of
their affliation with any hospital. App. 872–873, 1305; cf.
post, at 381–382 (Alito, J., dissenting). And nothing in the
record indicates that the background vetting for admitting
privileges adds signifcantly to the vetting that the State
Board of Medical Examiners already provides. 250 F. Supp.
3d, at 87; App. 1355–1356, 1358–1359.
Second, the Distr ict Cour t found that the admitting-
privileges requirement “does not conform to prevailing medi-

Cite
as: 591 U. S. 299 (2020)
341
Opinion of Breyer, J.
cal standards and will not improve the safety of abortion in
Louisiana.
” 250 F. Supp. 3d, at 64; see id., at 64–66. As in
Whole Woman's Health, the expert and lay testimony pre-
sented at trial shows:
•
“Complications from surgical abortion are relatively
rare,” and “[t]hey very rarely require transfer to a hospi-
tal or emergency room and are generally not serious.”
App. 287; see id., at 129; cf. Whole Woman's Health, 579
U. S., at 610–611.
•
For those patients who do experience complications at
the clinic, the transfer agreement required by existing
law is “suffcient to ensure continuity of care for patients
in an emergency.” App. 1050; see id., at 194, 330–332,
1059.
•
The “standard protocol” when a patient experiences a
complication after returning home from the clinic is to
send her “to the hospital that is nearest and able to pro-
vide the service that the patient needs,” which is not
necessarily a hospital within 30 miles of the clinic. Id.,
at 351; see id., at 115–116, 180, 793; La. Rev. Stat. Ann.
§ 40:1061.10(A)(2)(b)(ii) (requiring abortion providers to
furnish patients with the name and telephone number of
the hospital nearest to their home); cf. Whole Woman's
Health, 579 U. S., at 611.
As in Whole Woman's Health, the State introduced no evi-
dence “showing that patients have better outcomes when
their physicians have admitting privileges” or “of any in-
stance in which an admitting privileges requirement would
have helped even one woman obtain better treatment.” 250
F. Supp. 3d, at 64; Whole Woman's Health, 579 U. S., at 611–
612; see also Centers for Medicare and Medicaid Services, 84
Fed. Reg. 51790–51791 (2019) (“Under modern procedures,
emergency responders (and patients themselves) t ake
patients to hospital emergency rooms without regard to
prior agreements between particular physicians and particu-

342 JUNE
MEDICAL SERVICES L. L. C. v. RUSSO
Opinion of Breyer, J.
lar hospitals”); Brief for American College of Obstetricians
and
Gynecologists et al. as Amici Curiae 6 (local admitting-
privileges requirements for abortion providers offer no medi-
cal beneft and do not meaningfully advance continuity of
care).
VI
Conclusion
We conclude, in light of the record, that the District
Court's signifcant factual fndings—both as to burdens and
as to benefts—have ample evidentiary support. None is
“clearly erroneous.” Given the facts found, we must also
uphold the District Court's related factual and legal determi-
nations. These include its determination that Louisiana's
law poses a “substantial obstacle” to women seeking an abor-
tion; its determination that the law offers no signifcant
health-related benefts; and its determination that the law
consequently imposes an “undue burden” on a woman's
constitutional right to choose to have an abortion. We
also agree with its ultimate legal conclusion that, in light of
these fndings and our precedents, Act 620 violates the
Constitution.
VII
As a postscript, we explain why we have found unconvinc-
ing several further arguments that the State has made.
First, the State suggests that the record supports the Court
of Appeals' conclusion that Act 620 poses no substantial ob-
stacle to the abortion decision. See Brief for Respondent
73, 80. This argument misconceives the question before us.
“The question we must answer” is “not whether the [Fifth]
Circuit's interpretation of the facts was clearly erroneous,
but whether the District Court's fnding[s were] clearly erro-
neous.” Anderson, 470 U. S., at 577 (emphasis added). As
we have explained, we think the District Court's factual
fndings here are plausible in light of the record as a whole.

Cite
as: 591 U. S. 299 (2020)
343
Opinion of Breyer, J.
Nothing in the State's briefng furnishes a basis to disturb
that
conclusion.
Second, the State says that the record does not show that
Act 620 will burden every woman in Louisiana who seeks an
abortion. Brief for Respondent 69–70 (citing United States
v. Salerno, 481 U. S. 739, 745 (1987)). True, but beside the
point. As we stated in Casey, a State's abortion-related
law is unconstitutional on its face if “it will operate as a sub-
stantial obstacle to a woman's choice to undergo an abortion”
in “a large fraction of the cases in which [it] is relevant.”
505 U. S., at 895 (majority opinion). In Whole Woman's
Health, we reaffrmed that standard. We made clear that
the phrase refers to a large fraction of “those women for
whom the provision is an actual rather than an irrelevant
restriction.” 579 U. S., at 626 (quoting Casey, 505 U. S.,
at 895; brackets omitted). That standard, not an “every
woman” standard, is the standard that must govern in this
case.
Third, the State argues that Act 620 would not make it
“nearly impossible” for a woman to obtain an abortion.
Brief for Respondent 71–72. But, again, the words “nearly
impossible” do not describe the legal standard that governs
here. Since Casey, we have repeatedly reiterated that the
plaintiff 's burden in a challenge to an abortion regulation is
to show that the regulation's “purpose or effect” is to “plac[e]
a substantial obstacle in the path of a woman seeking an
abortion of a nonviable fetus.” 505 U. S., at 877 (plurality
opinion); see Whole Woman's Health, 579 U. S., at 595–596;
Gonzales, 550 U. S., at 156; Stenberg, 530 U. S., at 921; Ma-
zurek, 520 U. S., at 971.
Finally, the State makes several arguments about the
standard of review that it would have us apply in cases
where a regulation is found not to impose a substantial ob-
stacle to a woman's choice. Brief for Respondent 60–66.
That, however, is not this case. The record here establishes

344 JUNE
MEDICAL SERVICES L. L. C. v. RUSSO
Roberts, C. J., concurring in judgment
that Act 620's admitting-privileges requirement places a sub-
st
antial obstacle in the path of a large fraction of those
women seeking an abortion for whom it is a relevant
restriction.
***
This case is similar to, nearly identical with, Whole Wom-
an's Health. And the law must consequently reach a similar
conclusion. Act 620 is unconstitutional. The Court of Ap-
peals' judgment is erroneous. It is
Reversed.
Chief Justice Roberts, concurring in judgment.
In July 2013, Texas enacted a law requiring a physician
performing an abortion to have “active admitting privileges
at a hospital . . . located not further than 30 miles from the
location at which the abortion is performed.” Tex. Health &
Safety Code Ann. § 171.0031(a)(1)(A) (West Cum. Supp. 2019).
The law caused the number of facilities providing abortions
to drop in half. In Whole Woman's Health v. Hellerstedt,
579 U. S. 582 (2016), the Court concluded that Texas's admit-
ting privileges requirement “places a substantial obstacle in
the path of women seeking a previability abortion” and
therefore violated the Due Process Clause of the Fourteenth
Amendment. Id., at 591 (citing Planned Parenthood of
Southeastern Pa. v. Casey, 505 U. S. 833, 878 (1992) (plural-
ity opinion)).
I joined the dissent in Whole Woman's Health and con-
tinue to believe that the case was wrongly decided. The
question today however is not whether Whole Woman's
Health was right or wrong, but whether to adhere to it in
deciding the present case. See Moore v. Texas, 586 U. S.
133, 143 (2019) (Roberts, C. J., concurring).
Today's case is a challenge from several abortion clinics
and providers to a Louisiana law nearly identical to the
Texas law struck down four years ago in Whole Woman's
Health. Just like the Texas law, the Louisiana law requires

Cite
as: 591 U. S. 299 (2020)
345
Roberts, C. J., concurring in judgment
physicians performing abortions to have “active admitting
pr
ivileges at a hospital . . . located not further than thirty
miles from the location at which the abortion is performed.”
La. Rev. Stat. Ann. § 40:1061.10(A)(2)(a) (West Cum. Supp.
2020). Following a six-day bench trial, the District Court
found that Louisiana's law would “result in a drastic reduc-
tion in the number and geographic distribution of abortion
providers.” June Medical Services LLC v. Kliebert, 250
F. Supp. 3d 27, 87 (MD La. 2017). The law would reduce the
number of clinics from three to “one, or at most two,” and
the number of physicians providing abortions from fve to
“one, or at most two,” and “therefore cripple women's ability
to have an abortion in Louisiana.” Id., at 87–88.
The legal doctrine of stare decisis requires us, absent spe-
cial circumstances, to treat like cases alike. The Louisiana
law imposes a burden on access to abortion just as severe
as that imposed by the Texas law, for the same reasons.
Therefore Louisiana's law cannot st and under our
precedents.
I
Stare decisis (“to stand by things decided”) is the legal
term for fdelity to precedent. Black's Law Dictionary 1696
(11th ed. 2019). It has long been “an established rule to
abide by former precedents, where the same points come
again in litigation; as well to keep the scale of justice even
and steady, and not liable to waver with every new judge's
opinion.” 1 W. Blackstone, Commentaries on the Laws of
England 69 (1765). This principle is grounded in a basic hu-
mility that recognizes today's legal issues are often not so
different from the questions of yesterday and that we are
not the frst ones to try to answer them. Because the “pri-
vate stock of reason . . . in each man is small, . . . individuals
would do better to avail themselves of the general bank and
capital of nations and of ages.” 3 E. Burke, Refections on
the Revolution in France 110 (1790).

346 JUNE
MEDICAL SERVICES L. L. C. v. RUSSO
Roberts, C. J., concurring in judgment
Adherence to precedent is necessary to “avoid an arbitrary
discreti
on in the courts.” The Federalist No. 78, p. 529
(J. Cooke ed. 1961) (A. Hamilton). The constraint of prece-
dent distinguishes the judicial “method and philosophy from
those of the political and legislative process.” Jackson, De-
cisional Law and Stare Decisis, 30 A. B. A. J. 334 (1944).
The doctrine also brings pragmatic benefts. Respect for
precedent “promotes the evenhanded, predictable, and con-
sistent development of legal principles, fosters reliance on
judicial decisions, and contributes to the actual and perceived
integrity of the judicial process.” Payne v. Tennessee, 501
U. S. 808, 827 (1991). It is the “means by which we ensure
that the law will not merely change erratically, but will de-
velop in a principled and intelligible fashion.” Vasquez v.
Hillery, 474 U. S. 254, 265 (1986). In that way, “stare decisis
is an old friend of the common lawyer.” Jackson, supra,
at 334.
Stare decisis is not an “inexorable command.” Ramos v.
Louisiana, 590 U. S. 83, 105 (2020) (internal quotation marks
omitted). But for precedent to mean anything, the doctrine
must give way only to a rationale that goes beyond whether
the case was decided correctly. The Court accordingly con-
siders additional factors before overruling a precedent, such
as its administrability, its ft with subsequent factual and
legal developments, and the reliance interests that the prece-
dent has engendered. See Janus v. State, County, and Mu-
nicipal Employees, 585 U. S. 878, 917 (2018).
Stare decisis principles also determine how we handle a
decision that itself departed from the cases that came before
it. In those instances, “[r]emaining true to an `intrinsically
sounder' doctrine established in prior cases better serves the
values of stare decisis than would following ” the recent de-
parture. Adarand Constructors, Inc. v. Peña, 515 U. S. 200,
231 (1995) (plurality opinion). Stare decisis is pragmatic
and contextual, not “a mechanical formula of adherence to
the latest decision.” Helvering v. Hallock, 309 U. S. 106,
119 (1940).

Cite
as: 591 U. S. 299 (2020)
347
Roberts, C. J., concurring in judgment
II
A
Both
Louisiana and the providers agree that the undue
burden standard announced in Casey provides the appro-
priate framework to analyze Louisiana's law. Brief for Peti-
tioners in No. 18–1323, pp. 45–47; Brief for Respondent in
No. 18–1323, pp. 60–62. Neither party has asked us to reas-
sess the constitutional validity of that standard.
Casey reaffrmed “the most central principle of Roe v.
Wade,” a “woman's right to terminate her pregnancy before
viability.” Casey, 505 U. S., at 871 (plurality opinion).
1
At
the same time, it recognized that the State has “important
and legitimate interests in . . . protecting the health of the
pregnant woman and in protecting the potentiality of human
life.” Id., at 875–876 (internal quotation marks and brack-
ets omitted).
To serve the former interest, the State may, “[a]s with any
medical procedure,” enact “regulations to further the health
or safety of a woman seeking an abortion.” Id., at 878. To
serve the latter interest, the State may, among other things,
“enact rules and regulations designed to encourage her to
know that there are philosophic and social arguments of
great weight that can be brought to bear in favor of continu-
ing the pregnancy to full term.” Id., at 872. The State's
freedom to enact such rules is “consistent with Roe's central
premises, and indeed the inevitable consequence of our hold-
ing that the State has an interest in protecting the life of the
unborn.” Id., at 873.
Under Casey, the State may not impose an undue burden
on the woman's ability to obtain an abortion. “A fnding of
an undue burden is a shorthand for the conclusion that a
1
Although parts of Casey's joint opinion were a plurality not joined by
a majority of the Court, the joint opinion is nonetheless considered the
holding of the Court under Marks v. United States, 430 U. S. 188, 193
(1977), as the narrowest position supporting the judgment.

348 JUNE
MEDICAL SERVICES L. L. C. v. RUSSO
Roberts, C. J., concurring in judgment
state regulation has the purpose or effect of placing a sub-
st
antial obstacle in the path of a woman seeking an abortion
of a nonviable fetus.” Id., at 877. Laws that do not pose a
substantial obstacle to abortion access are permissible, so
long as they are “reasonably related” to a legitimate state
interest. Id., at 878.
After faithfully reciting this standard, the Court in Whole
Woman's Health added the following observation: “The rule
announced in Casey . . . requires that courts consider the
burdens a law imposes on abortion access together with the
benefts those laws confer.” 579 U. S., at 607. The plurality
repeats today that the undue burden standard requires
courts “to weigh the law's asserted benefts against the bur-
dens it imposes on abortion access.” Ante, at 306–307 (in-
ternal quotation marks omitted).
Read in isolation from Casey, such an inquiry could invite
a grand “balancing test in which unweighted factors mysteri-
ously are weighed.” Marrs v. Motorola, Inc., 577 F. 3d 783,
788 (CA7 2009). Under such tests, “equality of treatment is
. . . impossible to achieve; predictability is destroyed; judicial
arbitrariness is facilitated; judicial courage is impaired.”
Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev.
1175, 1182 (1989).
In this context, courts applying a balancing test would be
asked in essence to weigh the State's interests in “protecting
the potentiality of human life” and the health of the woman,
on the one hand, against the woman's liberty interest in
defning her “own concept of existence, of meaning, of the
universe, and of the mystery of human life” on the other.
Casey, 505 U. S., at 851 (opinion of the Court); id., at 871
(plura lity opini on) ( inter na l quotati on marks omitted).
There is no plausible sense in which anyone, let alone this-
Court, could objectively assign weight to such imponderable
values and no meaningful way to compare them if there
were. Attempting to do so would be like “judging whether
a particular line is longer than a particular rock is heavy,”

Cite
as: 591 U. S. 299 (2020)
349
Roberts, C. J., concurring in judgment
Bendix Autolite Corp. v. Midwesco Enterprises, Inc., 486
U
. S. 888, 897 (1988) (Scalia, J., concurring in judgment).
Pretending that we could pull that off would require us to
act as legislators, not judges, and would result in nothing
other than an “unanalyzed exercise of judicial will” in the
guise of a “neutral utilitarian calculus.” New Jersey v.
T. L. O., 469 U. S. 325, 369 (1985) (Brennan, J., concurring in
part and dissenting in part).
Nothing about Casey suggested that a weighing of costs
and benefts of an abortion regulation was a job for the
courts. On the contrary, we have explained that the “tradi-
tional rule” that “state and federal legislatures [have] wide
discretion to pass legislation in areas where there is medical
and scientifc uncertainty” is “consistent with Casey.” Gon-
zales v. Carhart, 550 U. S. 124, 163 (2007). Casey instead
focuses on the existence of a substantial obstacle, the sort of
inquiry familiar to judges across a variety of contexts. See,
e. g., Burwell v. Hobby Lobby Stores, Inc., 573 U. S. 682, 694–
695 (2014) (asking whether the government “substantially
burdens a person's exercise of religion” under the Religious
Freedom Restoration Act); Arizona Free Enterprise Club's
Freedom Club PAC v. Bennett, 564 U. S. 721, 748 (2011) (ask-
ing whether a law “imposes a substantial burden on the
speech of privately fnanced candidates and independent ex-
penditure groups”); Murphy v. United Parcel Service, Inc.,
527 U. S. 516, 521 (1999) (asking, in the context of the Ameri-
cans with Disabilities Act, whether an individual's impair-
ment “substantially limits one or more major life activities”
(internal quotation marks omitted)).
Casey's analysis of the various restrictions that were at
issue in that case is illustrative. For example, the opinion-
recognized that Pennsylvania's 24-hour waiting period for
abortions “has the effect of increasing the cost and risk of
delay of abortions,” but observed that the District Court did
not fnd that the “increased costs and potential delays
amount to substantial obstacles.” 505 U. S., at 886 ( joint

350 JUNE
MEDICAL SERVICES L. L. C. v. RUSSO
Roberts, C. J., concurring in judgment
opinion of O'Connor, Kennedy, and Souter, JJ.) (internal quo-
t
ation marks omitted). The opinion concluded that “given
the statute's defnition of medical emergency,” the waiting
period did not “impose[ ] a real health risk.” Ibid. Be-
cause the law did not impose a substantial obstacle, Casey
upheld it. And it did so notwithstanding the District
Court's fnding that the law did “not further the state inter-
est in maternal health.” Ibid. (internal quotation marks
omitted).
Turning to the State's various recordkeeping and report-
ing requirements, Casey found those requirements do not “im-
pose a substantial obstacle to a woman's choice” because “[a]t
most they might increase the cost of some abortions by a slight
amount.” Id., at 901. “While at some point increased cost
could become a substantial obstacle,” there was “no such
showing on the record” before the Court. Ibid. The Court
did not weigh this cost against the benefts of the law.
The same was true for Pennsylvania's parental consent re-
quirement. Casey held that “a State may require a minor
seeking an abortion to obtain the consent of a parent or
guardian, provided that there is an adequate judicial bypass
procedure.” Id., at 899 (citing, among other cases, Ohio v.
Akron Center for Reproductive Health, 497 U. S. 502, 510–
519 (1990)). Casey relied on precedent establishing that ju-
dicial bypass procedures “prevent another person from hav-
ing an absolute veto power over a minor's decision to have
an abortion.” Akron, 497 U. S., at 510. Without a judicial
bypass, parental consent laws impose a substantial obstacle
to a minor's ability to obtain an abortion and therefore
constitute an undue burden. See Casey, 505 U. S., at 899
( joint opinion).
The opinion similarly looked to whether there was a sub-
stantial burden, not whether benefts outweighed burdens, in
analyzing Pennsylvania's requirement that physicians pro-
vide certain “truthful, nonmisleading information” about the
nature of the abortion procedure. Id., at 882. The opinion

Cite
as: 591 U. S. 299 (2020)
351
Roberts, C. J., concurring in judgment
concluded that the requirement “cannot be considered a sub-
st
antial obstacle to obtaining an abortion, and, it follows,
there is no undue burden.” Id., at 883 (emphasis added).
With regard to the State's requirement that a physician,
as opposed to a qualifed assistant, provide the woman this
information, the opinion reasoned: “Since there is no evi-
dence on this record that requiring a doctor to give the infor-
mation as provided by the statute would amount in practical
terms to a substantial obstacle to a woman seeking an abor-
tion, we conclude that it is not an undue burden.” Id., at
884–885 (emphasis added). This was so “even if an objective
assessment might suggest that those same tasks could be
performed by others,” meaning the law had little if any bene-
ft. Id., at 885.
The only restriction Casey found unconstitutional was
Pennsylvania's spousal notifcation requirement. On that
score, the Court recited a bevy of social science evidence
demonstrating that “millions of women in this country . . .
may have justifable fears of physical abuse” or “devastating
forms of psychological abuse from their husbands.” Id., at
893 (opinion of the Court). In addition to “physical vio-
lence” and “child abuse,” women justifably feared “verbal
harassment, threats of future violence, the destruction of
possessions, physical confnement to the home, the with-
drawal of fnancial support, or the disclosure of the abortion
to family and friends.” Ibid. The spousal notifcation re-
quirement was “thus likely to prevent a signifcant number
of women from obtaining an abortion.” Ibid. It did not
“merely make abortions a little more diffcult or expensive to
obtain; for many women, it [imposed] a substantial obstacle.”
Id., at 893–894. The Court emphasized that it would not
“blind [itself] to the fact that the signifcant number of
women who fear for their safety and the safety of their chil-
dren are likely to be deterred from procuring an abortion as
surely as if the Commonwealth had outlawed abortion in all
cases.” Id., at 894.

352 JUNE
MEDICAL SERVICES L. L. C. v. RUSSO
Roberts, C. J., concurring in judgment
The upshot of Casey is clear: The several restrictions that
did
not impose a substantial obstacle were constitutional,
while the restriction that did impose a substantial obstacle
was unconstitutional.
To be sure, the Court at times discussed the benefts of
the regulations, including when it distinguished spousal noti-
fcation from parental consent. See Whole Woman's Health,
579 U. S., at 607–608 (citing Casey, 505 U. S., at 887–898 (opin-
ion of the Court)); id., at 899–901 ( joint opinion). But in the
context of Casey's governing standard, these benefts were
not placed on a scale opposite the law's burdens. Rather,
Casey discussed benefts in considering the threshold re-
quirement that the State have a “legitimate purpose” and
that the law be “reasonably related to that goal.” Id., at 878
(plurality opinion); id., at 882 ( joint opinion).
So long as that showing is made, the only question for a
court is whether a law has the “effect of placing a substantial
obstacle in the path of a woman seeking an abortion of a
nonviable fetus.” Id., at 877 (plurality opinion). Casey re-
peats that “substantial obstacle” standard nearly verbatim
no less than 15 times. Id., at 846, 894, 895 (opinion of the
Court); id., at 877, 878 (plurality opinion); id., at 883, 884,
885, 886, 887, 901 ( joint opinion).
2
2
Justice Gorsuch correctly notes that Casey “expressly disavowed
any test as strict as strict scrutiny.” Post, at 428 (dissenting opinion).
But he certainly is wrong to suggest that my position is in any way in-
consistent with that disavowal. Applying strict scrutiny would require
“any regulation touching upon the abortion decision” to be the least
restrictive means to further a compelling state interest. Casey, 505
U. S., at 871 (plura lity opi ni on) (emphasis added). Casey however
recognized that such a test would give “too little acknowledgment and
implementation” to the State's “legitimate interests in the health of
the woman and in protecting the potential life within her.” Ibid.
Under Casey, abortion regulations are valid so long as they do not pose a
substantial obstacle and meet the threshold requirement of being “re-
asonably related” to a “legitimate purpose.” Id., at 878; id., at 882
( joint opinion).

Cite
as: 591 U. S. 299 (2020)
353
Roberts, C. J., concurring in judgment
The only place a balancing test appears in Casey is in Jus-
tice
Stevens's partial dissent. “Weighing the State's inter-
est in potential life and the woman's liberty interest,” Justice
Stevens would have gone further than the plurality to strike
down portions of the State's informed consent requirements
and 24-hour waiting period. Id., at 916–920 (opinion concur-
ring in part and dissenting in part). But that approach did
not win the day.
Mazurek v. Ar m stro ng places th is underst andi ng of
Casey's undue burden standard beyond doubt. 520 U. S. 968
(1997) (per cur iam). Mazurek involved a challenge to a
Montana law restricting the performance of abortions to li-
censed physicians. 520 U. S., at 969. It was “uncontested
that there was insuffcient evidence of a `substantial obstacle'
to abortion.” Id., at 972. Therefore, once the Court found
that the Montana Legislature had not acted with an “unlaw-
ful motive,” the Court's work was complete. Ibid. In fact,
the Court found the challengers' argument—that the law
was invalid because “all health evidence contradicts the
[State's] claim that there is any health basis for the law”—to
be “squarely foreclosed by Casey itself.” Id., at 973 (inter-
nal quotation marks omitted; emphasis added).
We should respect the statement in Whole Woman's
Health that it was applying the undue burden standard of
Casey. The opinion in Whole Woman's Health began by
saying, “We must here decide whether two provisions of [the
Texas law] violate the Federal Constitution as interpreted in
Casey.” 579 U. S., at 590. Nothing more. The Court ex-
plicitly stated that it was applying “the standard, as de-
scribed in Casey,” and reversed the Court of Appeals for
applying an approach that did “not match the standard that
this Court laid out in Casey.” Id., at 607, 608.
Here the plurality expressly acknowledges that we are not
considering how to analyze an abortion regulation that does
not present a substantial obstacle. “That,” the plurality ex-
plains, “is not this case.” Ante, at 343. In this case, Casey's

354 JUNE
MEDICAL SERVICES L. L. C. v. RUSSO
Roberts, C. J., concurring in judgment
requirement of fnding a substantial obstacle before invali-
dati
ng an abortion regulation is therefore a suffcient basis
for the decision, as it was in Whole Woman's Health. In
neither case, nor in Casey itself, was there call for consider-
ation of a regulation's benefts, and nothing in Casey com-
mands such consideration. Under principles of stare decisis,
I agree with the plurality that the determination in Whole
Woman's Health that Texas's law imposed a substantial ob-
stacle requires the same determination about Louisiana's
law. Under those same principles, I would adhere to the
holding of Casey, requiring a substantial obstacle before
striking down an abortion regulation.
B
Whole Woman's Health held that Texas's admitting privi-
leges requirement placed “a substantial obstacle in the path
of women seeking a previability abortion,” independent of
its discussion of benefts. 579 U. S., at 591 (citing Casey, 505
U. S., at 878 (plurality opinion)).
3
Because Louisiana's ad-
mitting privileges requirement would restrict women's ac-
cess to abortion to the same degree as Texas's law, it also
cannot stand under our precedent.
4
3
Justice Gorsuch considers this is a “nonexistent ruling ” nowhere to
be found in Whole Woman's Health. Post, at 427 (dissenting opinion). I
disagree. Whole Woman's Health frst surveyed the benefts of Texas's
admitting privileges requirement. 579 U. S., at 610–611. The Court
then transitioned to examining the law's burdens: “At the same time, the
record evidence indicates that the admitting-privileges requirement places
a substantial obstacle in the path of a woman's choice.” Id., at 612 (inter-
nal quotation marks omitted; emphasis added). And the Court made clear
that a law which has the purpose or effect of placing “a substantial obsta-
cle in the path of a woman seeking an abortion before the fetus attains
viability” imposes an “undue burden” and therefore violates the Constitu-
tion. Id., at 589–590 (internal quotation marks omitted; emphasis de-
leted). Thus the discussion of benefts in Whole Woman's Health was not
necessary to its holding.
4
For the reasons the plurality explains, ante, at 316–320, I agree that
the abortion providers in this case have standing to assert the constitu-
tional rights of their patients.

Cite
as: 591 U. S. 299 (2020)
355
Roberts, C. J., concurring in judgment
To begin, the two laws are nearly identical. Prior to en-
ac
tment of the Texas law, abortion providers were required
either to possess local hospital admitting privileges or to
have a transfer agreement with a physician who had such
privileges. Tex. Admin. Code, tit. 25, § 139.56(a) (2009).
The new law, adopted in 2013, eliminated the option of hav-
ing a transfer agreement. Providers were required to
“[h]ave active admitting privileges at a hospital . . . located
not further than 30 miles from the location at which the
abortion is performed.” Tex. Health & Safety Code Ann.
§ 171.0031(a)(1)(A).
Likewise, Louisiana law previously required abortion pro-
viders to have either admitting privileges or a transfer
agreement. La. Admin. Code, tit. 48, pt. I, § 4407(A)(3)
(2003), 29 La. Reg. 706–707 (2003). In 2014, Louisiana re-
moved the option of having a transfer agreement. Just like
Texas, Louisiana now requires abortion providers to “[h]ave
active admitting privileges at a hospital . . . located not fur-
ther than thirty miles from the location at which the abortion
is performed.” La. Rev. Stat. Ann. § 40:1061.10(A)(2)(a).
Crucially, the District Court fndings indicate that Louisi-
ana's law would restrict access to abortion in just the same
way as Texas's law, to the same degree or worse. In Texas,
“as of the time the admitting-privileges requirement began
to be enforced, the number of facilities providing abortions
dropped in half, from about 40 to about 20.” Whole Wom-
an's Health, 579 U. S., at 612. Eight abortion clinics closed
in the months prior to the law's effective date. Ibid. An-
other 11 clinics closed on the day the law took effect. Ibid.
Similarly, the District Court found that the Louisiana law
would “result in a drastic reduction in the number and geo-
graphic distribution of abortion providers.” 250 F. Supp. 3d,
at 87. At the time of the District Court's decision, there
were three clinics and fve physicians performing abortions
in Louisiana. Id., at 40, 41. The District Court found that
the new law would reduce “the number of clinics to one, or
at most two,” and the number of physicians in Louisiana to

356 JUNE
MEDICAL SERVICES L. L. C. v. RUSSO
Roberts, C. J., concurring in judgment
“one, or at most two,” as well. Id., at 87. Even in the best
case
, “the demand for services would vastly exceed the sup-
ply.” Ibid.
Whole Woman's Health found that the closures of the
abortion clinics led to “fewer doctors, longer waiting times,
and increased crowding.” 579 U. S., at 613. The Court also
found that “the number of women of reproductive age living
in a county more than 150 miles from a provider increased
from approximately 86,000 to 400,000 and the number of
women living in a county more than 200 miles from a pro-
vider from approximately 10,000 to 290,000.” Id., at 614 (in-
ternal quotation marks and alterations omitted).
The District Court here likewise found that the Louisiana
law would result in “longer waiting times for appointments,
increased crowding and increased associated health risk.”
250 F. Supp. 3d, at 81. The court found that Louisiana
women already “have diffculty affording or arranging for
transportation and childcare on the days of their clinic visits”
and that “[i]ncreased travel distance” would exacerbate this
diffculty. Id., at 83. The law would prove “particularly
burdensome for women living in northern Louisiana . . . who
once could access a clinic in their own area [and] will now
have to travel approximately 320 miles to New Orleans.”
Ibid.
In Texas, “common prerequisites to obtaining admitting
privileges that [had] nothing to do with ability to perform
medical procedures,” including “clinical data requirements,
residency requirements, and other discretionary factors,”
made it diffcult for well-credentialed abortion physicians to
obtain such privileges. Whole Woman's Health, 579 U. S.,
at 613. In particular, the Court found that “hospitals often
condition[ed] admitting privileges on reaching a certain num-
ber of admissions per year.” Id., at 612 (internal quotation
marks omitted). But because complications requiring hospi-
talization are relatively rare, abortion providers were “un-
likely to have any patients to admit” and thus were “unable

Cite
as: 591 U. S. 299 (2020)
357
Roberts, C. J., concurring in judgment
to maintain admitting privileges or obtain those privileges
for
the future.” Id., at 613.
So too here. “While a physician's competency is a factor
in assessing an applicant for admitting privileges” in Louisi-
ana, “it is only one factor that hospitals consider in whether
to grant privileges.” 250 F. Supp. 3d, at 46. Louisiana hos-
pitals “may deny privileges or decline to consider an applica-
tion for privileges for myriad reasons unrelated to compe-
tency,” including “the physician's expected usage of the
hospital and intent to admit and treat patients there, the
number of patients the physician has treated in the hospital
in the recent past, the needs of the hospital, the mission of
the hospital, or the business model of the hospital.” Ibid.
5
And the District Court found that, as in Texas, Louisiana
“hospitals often grant admitting privileges to a physician be-
cause the physician plans to provide services in the hospital”
and that “[i]n general, hospital admitting privileges are not
provided to physicians who never intend to provide services
in a hospital.” Id., at 49. But “[b]ecause, by all accounts,
abortion complications are rare, an abortion provider is un-
likely to have a consistent need to admit patients.” Id., at
50 (citations omitted).
6
Importantly, the District Court found that “since the pas-
sage of [the Louisiana law], all fve remaining doctors have
attempted in good faith to comply” with the law by applying
5
Justice Alito misunderstands my discussion of credentials as focus-
ing on the law's lack of benefts. See post, at 380 (dissenting opinion).
But my analysis, like Casey, is limited to the law's effect on the availability
of abortion.
6
I agree with Justice Alito that the validity of admitting privileges
laws “depend[s] on numerous factors that may differ from State to State.”
Post, at 385 (dissenting opinion). And I agree with Justice Gorsuch
that “[w]hen it comes to the factual record, litigants normally start the
case on a clean slate.” Post, at 422 (dissenting opinion). Appreciating
that others may in good faith disagree, however, I cannot view the record
here as in any pertinent respect suffciently different from that in Whole
Woman's Health to warrant a different outcome.

358 JUNE
MEDICAL SERVICES L. L. C. v. RUSSO
Roberts, C. J., concurring in judgment
for admitting privileges, yet have had very little success.
Id.
, at 77–78 (emphasis added). This fnding was necessary
to ensure that the physicians' inability to obtain admitting
privileges was attributable to the new law rather than a half-
hearted attempt to obtain privileges. Only then could the
District Court accurately identify the Louisiana law's burden
on abortion access.
The question is not whether we would reach the same
fndings from the same record. These District Court fnd-
ings “entail[ed] primarily . . . factual work” and therefore are
“review[ed] only for clear error.” U. S. Bank N. A. v. Vil-
lage at Lakeridge, LLC, 583 U. S. 387, 394, 396 (2018). Clear
error review follows from a candid appraisal of the compara-
tive advantages of trial courts and appellate courts. “While
we review transcripts for a living, they listen to witnesses
for a living. While we largely read briefs for a living, they
largely assess the credibility of parties and witnesses for a
living.” Taglieri v. Monasky, 907 F. 3d 404, 408 (CA6 2018)
(en banc).
We accordingly will not disturb the factual conclusions of
the trial court unless we are “left with the defnite and frm
conviction that a mistake has been committed.” United
States v. United States Gypsum Co., 333 U. S. 364, 395 (1948).
In my view, the District Court's work reveals no such clear
error, for the reasons the plurality explains. Ante, at 323–
339. The District Court fndings therefore bind us in this
case.
***
Stare decisis instructs us to treat like cases alike. The
result in this case is controlled by our decision four years
ago invalidating a nearly identical Texas law. The Louisiana
law burdens women seeking previability abortions to the
same extent as the Texas law, according to factual fndings
that are not clearly erroneous. For that reason, I concur
in the judgment of the Court that the Louisiana law is
unconstitutional.

Cite
as: 591 U. S. 299 (2020)
359
Thomas, J., dissenting
Justice Thomas, dissenting.
T
oday a majority of the Court perpetuates its ill-founded
abortion jurisprudence by enjoining a perfectly legitimate
state law and doing so without jurisdiction. As is often the
case with legal challenges to abortion regulations, this suit
was brought by abortionists and abortion clinics. Their sole
claim before this Court is that Louisiana's law violates the
purported substantive due process right of a woman to abort
her unborn child. But they concede that this right does not
belong to them, and they seek to vindicate no private rights
of their own. Under a proper understanding of Article III,
these plaintiffs lack standing to invoke our jurisdiction.
Despite the fact that we granted Louisiana's petition spe-
cifcally to address whether “abortion providers [can] be pre-
sumed to have third-party standing to challenge health and
safety regulations on behalf of their patients,” Conditional
Cross-Pet. in No. 18–1460, p. i, a majority of the Court all
but ignores the question. The plurality and The Chief
Justice ultimately cast aside this jurisdictional barrier to
conclude that Louisiana's law is unconstitutional under our
precedents. But those decisions created the right to abor-
tion out of whole cloth, without a shred of support from
the Constitution's text. Our abortion precedents are griev-
ously wrong and should be overruled. Because we have
neither jurisdiction nor constitutional authority to declare
Louisiana's duly enacted law unconstitutional, I respectfully
dissent.
I
For most of its history, this Court maintained that private
parties could not bring suit to vindicate the constitutional
rights of individuals who are not before the Court. Kowal-
ski v. Tesmer, 543 U. S. 125, 135 (2004) (Thomas, J., concur-
ring) (citing Clark v. Kansas City, 176 U. S. 114, 118 (1900)).
But in the 20th century, the Court began to deviate from this
traditional rule against third-party standing. See Truax
v. Raich, 239 U. S. 33, 38–39 (1915); Pierce v. Society of Sis-

360 JUNE
MEDICAL SERVICES L. L. C. v. RUSSO
Thomas, J., dissenting
ters, 268 U. S. 510, 535–536 (1925). From these deviations
emerged
our prudential third-party standing doctrine, which
allows litigants to vicariously assert the constitutional rights
of others when “the party asserting the right has a `close'
relationship with the person who possesses the right” and
“there is a `hindrance' to the possessor's ability to protect his
own interests.” Kowalski, supra, at 130 (quoting Powers v.
Ohio, 499 U. S. 400, 411 (1991)).
1
The plurality feints toward this doctrine, claiming that
third-party standing for abortionists is well settled by our
precedents. But, ultimately, it dodges the question, claim-
ing that Louisiana's standing challenge was waived below.
Both assertions are erroneous. First, there is no controlling
precedent that sets forth the blanket rule advocated for by
plaintiffs here—i. e., abortionists may challenge health and
safety regulations based solely on their role in the abortion
process. Second, I agree with Justice Alito that Louisi-
1
In practice, this doctrine's application has been unconvincing and un-
predictable, which has long caused me to question its legitimacy. See,
e. g., United States v. Sineneng-Smith, 590 U. S. 371, 388–390 (2020)
(Thomas, J., concurring); Whole Woman's Health v. Hellerstedt, 579
U. S. 582, 629–633 (2016) (Thomas, J., dissenting); Kowalski, 543 U. S., at
135 (Thomas, J., concurring). For example, the Court has held that attor-
neys cannot bring suit to vindicate the Sixth Amendment rights of their
potential clients due to the lack of a current close relationship, id., at 130–
131, but the Court permits defendants to seek relief based on the Four-
teenth Amendment equal protection rights of potential jurors whom they
have never met, Powers, 499 U. S., at 410–416; J. E. B. v. Alabama ex rel.
T. B., 511 U. S. 127, 129 (1994). And today, the plurality reaffrms our
precedent allowing beer vendors to assert the Fourteenth Amendment
rights of their potential customers. Ante, at 319 (citing Craig v. Boren,
429 U. S. 190, 192 (1976)). But it is fair to wonder whether gun vendors
could expect to receive the same privilege if they seek to vindicate the
Second Amendment rights of their customers. Given this Court's ad hoc
approach to third-party standing and its tendency to treat the Second
Amendment as a second-class right, their time would be better spent wait-
ing for Godot.

Cite
as: 591 U. S. 299 (2020)
361
Thomas, J., dissenting
ana did not waive its standing challenge below. Post, at
400
–401 (dissenting opinion).
But even if there were a waiver, it would not be relevant.
Louisiana argues that the abortionists and abortion clinics
lack standing under Article III to assert the putative rights
of their potential clients. No waiver, however explicit, could
relieve us of our independent obligation to ensure that we
have jurisdiction before addressing the merits of a case.
See DaimlerChrysler Corp. v. Cuno, 547 U. S. 332, 341
(2006). And under a proper understanding of Article III's
case-or-controversy requirement, plaintiffs lack standing to
invoke our jurisdiction because they assert no private rights
of their own, seeking only to vindicate the putative constitu-
tional rights of individuals not before the Court.
A
The Court has previously asserted that the traditional rule
against third-party standing is “not constitutionally man-
dated, but rather stem[s] from a salutary `rule of self-
restraint' ” motivated by “prudential” concerns. Craig v.
Boren, 429 U. S. 190, 193 (1976) (quoting Barrows v. Jackson,
346 U. S. 249, 255 (1953)). The plurality repeats this well-
rehearsed claim, accepting its validity without question.
See ante, at 316–317. But support for this assertion is shal-
low, to say the least, and it is inconsistent with our more
recent standing precedents.
As an initial matter, this Court has never provided a co-
herent explanation for why the rule against third-party
standing is properly characterized as prudential. Many
cases reciting this claim rely on the Court's decision in Bar-
rows, which stated that the rule against third-party standing
is a “rule of self-restraint” “[a]part from the jurisdictional
requirement” of Article III, 346 U. S., at 255. But Barrows
provides no reasoning to support that distinction and even
admits that the rule against third-party standing is “not al-

362 JUNE
MEDICAL SERVICES L. L. C. v. RUSSO
Thomas, J., dissenting
ways clearly distinguished from the constitutional limita-
ti
on[s]” on standing. Ibid. The sole authority Barrows
cites in support of the rule's “prudential” label is a single-
Justice concurrence in Ashwander v. TVA, 297 U. S. 288,
346–348 (1936) (opinion of Brandeis, J.).
Justice Brandeis' concurrence, however, raises more ques-
tions than it answers. The opinion does not directly refer-
ence third-party standing. It only obliquely refers to the
concept by invoking the broader requirement that a plaintiff
must “show that he is injured by [the law's] operation.” Id.,
at 347. Justice Brandeis claims that this requirement was
adopted by the Court “for its own governance in the cases
confessedly within its jurisdiction.” Id., at 346. But most
of the cases he cites frame the matter in terms of the Court's
jurisdiction and authority; none of them invoke prudential
justifcations. See, e. g., Tyler v. Judges of Court of Reg-
istration, 179 U. S. 405, 407–410 (1900); Hendrick v. Mary-
land, 235 U. S. 610, 621 (1915); Massachusetts v. Mellon,
262 U. S. 447, 480 (1923). Thus, the “prudential” label for the
rule against third-party standing remains a bit of a mystery.
It is especially puzzling that a majority of the Court insists
on continuing to treat the rule against third-party standing
as prudential when our recent decision in Lexmark Int'l, Inc.
v. Static Control Components, Inc., 572 U. S. 118 (2014),
questioned the validity of our prudential standing doctrine
more generally. In that case, we acknowledged that requir-
ing a litigant who has Article III standing to also demon-
strate “prudential standing ” is inconsistent “with our recent
reaffrmation of the principle that `a federal court's “obliga-
tion” to hear and decide' cases within its jurisdiction `is “vir-
tually unfagging.” ' ” Id., at 125–126 (quoting Sprint Com-
munications, Inc. v. Jacobs, 571 U. S. 69, 77 (2013)). The
Court therefore suggested that the “prudential” label for
these doctrines was “inapt.” Lexmark, 572 U. S., at 127,
n. 3. As an example, it noted that the Court previously con-
sidered the rule against generalized grievances to be “pru-

Cite
as: 591 U. S. 299 (2020)
363
Thomas, J., dissenting
dential” but now recognizes that rule to be a part of Article
III'
s case-or-controversy requirement. Ibid. The Court
specifcally questioned the prudential label for the rule
against third-party standing, but because Lexmark did not
involve any questions of third-party standing, the Court
stated that “consideration of that doctrine's proper place in
the standing frmament [could] await another day.” Id., at
128, n. 3.
The Court's previous statements on the rule against third-
party standing have long suggested that the “proper place”
for that rule is in Article III's case-or-controversy require-
ment. The Court has acknowledged that the traditional
rule against third-party standing is “closely related to Art[i-
cle] III concerns.” Warth v. Seldin, 422 U. S. 490, 500
(1975). It has repeatedly noted that the rule “is not com-
pletely separable from Art[icle] III's requirement that a
plaintiff have a suffciently concrete interest in the outcome
of [the] suit to make it a case or controversy.” Secretary of
State of Md. v. Joseph H. Munson Co., 467 U. S. 947, 955, n. 5
(1984) (internal quotation marks omitted); see also Barrows,
supra, at 255 (the rule against third-party standing is “not
always clearly distinguished from the constitutional limita-
tion[s]” on standing). Moreover, the Court has even ex-
pressly stated that the rule against third-party standing is
“grounded in Art[icle] III limits on the jurisdiction of federal
courts to actual cases and controversies.” New York v. Fer-
ber, 458 U. S. 747, 767, n. 20 (1982).
And most recently, in Spokeo, Inc. v. Robins, 578 U. S. 330
(2016), the Court appeared to incorporate the rule against
third-party standing into its understanding of Article III's
injury-in-fact requirement. There, the Court stated that to
establish an injury-in-fact a plaintiff must “show that he or
she suffered `an invasion of a legally protected interest' that
is `concrete and particularized' and `actual or imminent, not
conjectural or hypothetical.' ” Id., at 339 (quoting Lujan v.
Defenders of Wildlife, 504 U. S. 555, 560 (1992)). The Court

364 JUNE
MEDICAL SERVICES L. L. C. v. RUSSO
Thomas, J., dissenting
further explained that whether a plaintiff “alleges that [the
defendant
] violated his statutory rights” rather than “the
statutory rights of other people ” was a question of “particu-
larization” for an Article III injury. 578 U. S., at 340 (inter-
nal quotation marks omitted). It is hard to reconcile this
language in Spokeo with the plurality's assertion that third-
party standing is permitted under Article III.
B
A brief historical examination of Article III's case-or-
controversy requirement confrms what our recent decisions
suggest: The rule against third-party standing is constitu-
tional, not prudential. The judicial power is limited to
“ ` “cases and controversies of the sort traditionally amenable
to, and resolved by, the judicial process.” ' ” Id., at 343
(Thomas, J., concurring) (quoting Vermont Agency of Natu-
ral Resources v. United States ex rel. Stevens, 529 U. S. 765,
774 (2000)); see also Muskrat v. United States, 219 U. S. 346,
356–357 (1911). Thus, to ascertain the scope of Article III's
case-or-controversy requirement, “we must `refer directly to
the traditional, fundamental limitations upon the powers of
common-law courts.' ” Spokeo, supra, at 344 (Thomas, J.,
concurring) (quoting Honig v. Doe, 484 U. S. 305, 340 (1988)
(Scalia, J., dissenting)). “One focus” of these traditional lim-
itations was “on the particular parties before the court, and
whether the rights that they [were] invoking [were] really
theirs to control.” Woolhandler & Nelson, Does History De-
feat Standing Doctrine? 102 Mich. L. Rev. 689, 732 (2004).
An examination of these limitations reveals that a plaintiff
could not establish a case or controversy by asserting the
constitutional rights of others.
The limitations imposed on suits at common law varied
based on the type of right the plaintiff sought to vindicate.
Spokeo, 578 U. S., at 344 (Thomas, J., concurring). The
rights adjudicated by common-law courts generally fell into

Cite
as: 591 U. S. 299 (2020)
365
Thomas, J., dissenting
one of two categories: public or private. Public rights are
those
“owed `to the whole community . . . in its social aggre-
gate capacity.' ” Id., at 345 (quoting 4 W. Blackstone, Com-
mentaries *5). Private rights, on the other hand, are those
“ `belong ing to individuals, considered as individuals. ' ”
Spokeo, supra, at 344 (Thomas, J., concurring) (quoting 3
Blackstone, Commentaries *2).
When a plaintiff sought to vindicate a private right,
“courts historically presumed that the plaintiff suffered a
de facto injury merely from having his personal, legal rights
invaded.” Spokeo, supra, at 344 (Thomas, J., concurring).
But a plaintiff generally “need[ed] to have a private interest
of his or her own to litigate; otherwise, no suffcient interest
[was] at stake on the plaintiff 's side, and the clash of interests
necessary for a `Case' or `Controversy' [did] not exist.”
Woolhandler & Nelson, supra, at 723. Thus, 19th-century
judges uniformly refused to “listen to an objection made to
the constitutionality of an act by a party whose rights” were
not at issue. Clark, 176 U. S., at 118 (internal quotation
marks omitted); see also, e. g., Tyler, 179 U. S., at 406–407;
Supervisors v. Stanley, 105 U. S. 305, 311 (1882); United
States v. Ferreira, 13 How. 40, 51–52 (1852); Owings v. Nor-
wood's Lessee, 5 Cranch 344, 348 (1809) (Marshall, C. J.); In
re Wellington, 33 Mass. 87, 96 (1834) (Shaw, C. J.).
2
Moreover, it was not enough for a plaintiff to allege dam-
num—i. e., real-world damages or practical injury—if the
2
Common-law courts' recog nition of prochein ami or “next friend”
standing is not inconsistent with this point. In those cases, the third
party was “no party to the suit in the technical sense” but rather served
as “an offcer of the court” and was legally “appointed by [the court] to
look after the interests of [the party lacking legal capacity],” who remained
the real party in interest on “whom the judgment in the action [was] conse-
quently binding.” Blumenthal v. Craig, 81 F. 320, 321–322 (CA3 1897)
(internal quotation marks omitted). In contrast, the real parties in inter-
est here—women seeking abortions in Louisiana—cannot be bound by a
judgment against abortionists and abortion clinics.

366 JUNE
MEDICAL SERVICES L. L. C. v. RUSSO
Thomas, J., dissenting
law he was challenging did not violate a legally protected
i
nterest of his own. At common law, this sort of “factual
harm without a legal injury was damnum absque injuria
and provided no basis for relief.” Hessick, Standing, Injury
in Fact, and Private Rights, 93 Cornell L. Rev. 275, 280–281
(2008). As Justice Dodderidge explained in 1625, “injuria &
damnum are the two grounds for the having [of] all actions,
and without [both of] these, no action lieth.” Cable v. Rog-
ers, 3 Bulst. 311, 312, 81 Eng. Rep. 259. In the 18th century,
many common-law courts ceased requiring damnum in suits
alleging violations of private rights. See, e. g., Ashby v.
White, 2 Raym. Ld. 938, 92 Eng. Rep. 126, 137 (K. B.) (Holt,
C. J.), aff 'd, 3 Raym. Ld. 320, 92 Eng. Rep. 710, 712
(H. L. 1703); see also Webb v. Portland Mfg. Co., 29 F. Cas.
506, 507 (No. 17,322) (CC Me. 1838) (Story, J.). But they con-
tinued to require legal injury, adhering to the “obvious” and
“ancient maxim” that one's real-world damages alone cannot
“lay the foundation of an action.” Parker v. Griswold, 17
Conn. 288, 302–303 (1846). Thus, a plaintiff had to assert
“[a]n injury, [which,] legally speaking, consists of a wrong
done to a person, or, in other words, a violation of his right.”
Id., at 302.
This brief historical review demonstrates that third-party
standing is inconsistent with the case-or-controversy re-
quirement of Article III. When a private plaintiff seeks to
vindicate someone else's legal injury, he has no private right
of his own genuinely at stake in the litigation. Even if the
plaintiff has suffered damages as a result of another's legal
injury, he has no standing to challenge a law that does not
violate his own private rights.
C
Applying these principles to the case at hand, plaintiffs
lack standing under Article III and we, in turn, lack jurisdic-
tion to decide these cases. Thus, “[i]n light of th[e] `overrid-
ing and time-honored concern about keeping the Judiciary's

Cite
as: 591 U. S. 299 (2020)
367
Thomas, J., dissenting
power within its proper constitutional sphere, we must put
aside
the natural urge to proceed directly to the merits of
[an] important dispute and to “settle” it for the sake of con-
venience and effciency.' ” Hollingsworth v. Perry, 570 U. S.
693, 704–705 (2013) (Roberts, C. J., for the Court) (quoting
Raines v. Byrd, 521 U. S. 811, 820 (1997)).
1
Contrary to the plurality's assertion otherwise, ante, at
320, abortionists' standing to assert the putative rights of
their clients has not been settled by our precedents. It is
true that this Court has refexively allowed abortionists and
abortion clinics to vicariously assert a woman's putative
right to abortion. But oftentimes the Court has not so much
as addressed standing in those cases. See, e. g., Whole
Woman's Health v. Hellerstedt, 579 U. S. 582 (2016); Gonza-
les v. Carhart, 550 U. S. 124 (2007); Ayotte v. Planned Par-
enthood of Northern New Eng., 546 U. S. 320 (2006); Stenberg
v. Carhart, 530 U. S. 914 (2000); Mazurek v. Armstrong, 520
U. S. 968 (1997) (per curiam); Planned Parenthood of South-
eastern Pa. v. Casey, 505 U. S. 833 (1992). And questions
“merely lurk[ing] in the record, neither brought to the atten-
tion of the court nor ruled upon,” are not “considered as hav-
ing been so decided as to constitute precedents.” Webster
v. Fall, 266 U. S. 507, 511 (1925); see also Illinois Bd. of Elec-
tions v. Socialist Workers Party, 440 U. S. 173, 183 (1979).
Specifcally, when it comes “to our own judicial power or ju-
risdiction, this Court has followed the lead of Mr. Chief Jus-
tice Marshall who held that this Court is not bound by a
prior exercise of jurisdiction in a case where it was not ques-
tioned and it was passed sub silentio.” United States v. L.
A. Tucker Truck Lines, Inc., 344 U. S. 33, 38 (1952) (citing
United States v. More, 3 Cranch 159, 172 (1805) (Marshall,
C. J., for the Court)).
The frst—and only—time the Court squarely addressed
this question with a reasoned decision was in Singleton v.

368 JUNE
MEDICAL SERVICES L. L. C. v. RUSSO
Thomas, J., dissenting
Wulff, 428 U. S. 106 (1976).
3
In
that case, a fractured Court
concluded that two abortionists had standing to challenge a
State's refusal to provide Medicaid reimbursements for abor-
tions. Perfunctorily applying this Court's requirements for
third-party standing, Justice Blackmun, joined by three
other Justices, asserted that abortionists generally had
standing to litigate their clients' rights. Id., at 113–118 (plu-
rality opinion). Justice Stevens concurred on considerably
narrower grounds, reasoning that the abortionists had stand-
ing because they had a fnancial stake in the outcome of the
litigation and sought to vindicate their own constitutional
rights as well. Id., at 121 (opinion concurring in part). No-
tably, Justice Stevens declined to join the plurality's discus-
sion of third-party standing, explaining that he was “not sure
whether [that analysis] would, or should, sustain the doctors'
standing, apart from” their own legal rights and fnancial in-
terests being at stake in that specifc case. Id., at 122. The
3
Although the Court concluded that the abortionists had standing to
challenge the constitutionality of abortion regulations in Doe v. Bolton,
410 U. S. 179 (1973), it did so only in dicta, id., at 188–189. The abortion-
ists' coplaintiffs were pregnant women whom the Court determined had
standing to assert their own rights, and thus whether the abortionists had
standing was “a matter of no great consequence.” Id., at 188. Even so,
the Court only cursorily considered the question whether the threat of
prosecution faced by the abortionists was a suffciently direct injury under
the Court's then-existing standing doctrine, id., at 188–189, which was
considerably more lenient than our current understanding. The Court did
not engage in any meaningful Article III analysis or refer to this Court's
third-party standing doctrine. Ibid.; see also Akron v. Akron Center for
Reproductive Health, Inc., 462 U. S. 416, 440, n. 30 (1983) (concluding with-
out any analysis that an abortionist had standing to raise a claim on behalf
of his minor patients). And notably, the abortionists in that case had
brought suit to vindicate their own constitutional rights to “practic[e] their
. . . professio[n].” Doe, supra, at 186; see also Planned Parenthood of
Central Mo. v. Dan forth, 428 U. S. 52, 62 (1976) (concluding, without any
analysis of Article III or the third-party standing doctrine, that abortion-
ists had standing in a suit alleging violations of both their own constitu-
tional rights and those of their clients).

Cite
as: 591 U. S. 299 (2020)
369
Thomas, J., dissenting
four remaining Justices dissented in part, concluding that the
abor
tionists lacked standing to litigate the rights of their cli-
ents. Id., at 122–131 (Powell, J., concurring in part and dis-
senting in part). Because Justice Stevens' opinion “con-
curred in the judgmen[t] on the narrowest grounds,” it is the
controlling opinion regarding abortionists' third-party stand-
ing. Marks v. United States, 430 U. S. 188, 193 (1977).
4
To the extent Justice Stevens' opinion could be read as
concluding that abortionists have standing to vicariously as-
sert their clients' rights so long as the abortionists establish
standing on their own legal claims, his position has been ab-
rogated by this Court's more recent decisions, which have
“confrm[ed] that a plaintiff must demonstrate standing for
each claim he seeks to press.” DaimlerChrysler Corp., 547
U. S., at 352. But more importantly, Justice Stevens' opin-
ion does not support the abortionists in these cases, because
his opinion rested on case-specifc facts not implicated here—
namely, the fact that the abortionists would directly receive
Medicaid payments from the defendant agency if they pre-
vailed and that they asserted violations of their own consti-
tutional rights. In these cases, there is no dispute that the
abortionists' sole claim before this Court is that Louisiana's
law violates the purported substantive due process rights of
their clients.
2
Under a proper understanding of Article III, plaintiffs lack
standing. As explained above, in suits seeking to vindicate
private rights, the owners of those rights can establish a suf-
fcient injury simply by asserting that their rights have been
violated. Constitutional rights are generally considered
4
Three Justices of this Court have recently taken the position that this
rule from Marks, 430 U. S. 188, does not necessarily apply in all 4–1–4
cases, and that such decisions can sometimes produce “no controlling opin-
ion at all.” Ramos v. Louisiana, 590 U. S. 83, 103 (2020) (principal opin-
ion). But even under their view, Justice Blackmun's plurality in Singleton
would not be considered binding precedent.

370 JUNE
MEDICAL SERVICES L. L. C. v. RUSSO
Thomas, J., dissenting
“private rights” to the extent they “ `belon[g] to individ-
ua
ls, considered as individuals.' ” Spokeo, 578 U. S., at 344
(Thomas, J., concurring) (quoting 3 Blackstone, Commentar-
ies *2); see also United States v. Sineneng-Smith, 590 U. S.
371, 389 (2020) (Thomas, J., concurring). And the purported
substantive due process right to abort an unborn child is no
exception—it is an individual right that is inherently per-
sonal. After all, the Court “creat[ed the] right” based on
the notion that abortion “ ` involv[es] the most intimate and
personal choices a person may make in a lifetime, choices
central to personal dignity and autonomy.' ” Whole Wom-
an's Health, 579 U. S., at 632–633 (Thomas, J., dissenting)
(quoting Casey, 505 U. S., at 851 (majority opinion)). Be-
cause this right belongs to the woman making that choice,
not to those who provide abortions, plaintiffs cannot estab-
lish a personal legal injury by asserting that this right has
been violated.
5
The only injury asserted by plaintiffs in this suit is the
possibility of facing criminal sanctions if the abortionists con-
duct abortions without admitting privileges in violation of
the law. See Response and Reply for Petitioners (No. 18–
1460)/Cross-Respondents (No. 18–1323), p. 34. But plaintiffs
do not claim any right to provide abortions, nor do they con-
test that the State has authority to regulate such proce-
dures.
6
They have therefore demonstrated only real-world
damages (or more accurately, the possibility of real-world
damages), but no legal injury, or “invasion of a legally pro-
5
Notably, plaintiffs point to no evidence in the record of women who
seek abortions in Louisiana actually opposing this law on the ground that
it violates their constitutional rights.
6
Although plaintiffs initially argued that Louisiana's law also violated
their procedural due process rights by requiring them to obtain admitting
privileges in an unreasonably short time, App. 24, 28, they have since
abandoned that claim. And even if they had asserted violations of their
own rights before this Court, those legal injuries would be insuffcient to
establish standing for a distinct claim based on their clients' putative
rights. See supra, at 369.

Cite
as: 591 U. S. 299 (2020)
371
Thomas, J., dissenting
tected interest,” that belongs to them. Spokeo, supra, at
339
(internal quotation marks omitted). Thus, under a
proper understanding of Article III, plaintiffs lack standing
and, consequently, this Court lacks jurisdiction.
II
Even if the plaintiffs had standing, the Court would still
lack the authority to enjoin Louisiana's law, which represents
a constitutionally valid exercise of the State's traditional po-
lice powers. The plurality and The Chief Justice claim
that the Court's judgment is dictated by “our precedents,”
particularly Whole Woman's Health. Ante, at 342 (plurality
opinion); see also ante, at 344–345, 354–358 (Roberts, C. J.,
concurring in judgment). For the detailed reasons ex-
plained by Justice Alito, this is not true. Post, at 379–399
(dissenting opinion).
But today's decision is wrong for a far simpler reason: The
Constitution does not constrain the States' ability to regulate
or even prohibit abortion. This Court created the right to
abortion based on an amorphous, unwritten right to privacy,
which it grounded in the “legal fction” of substantive due
process, McDonald v. Chicago, 561 U. S. 742, 811 (2010)
(Thomas, J., concurring in part and concurring in judgment).
As the origins of this jurisprudence readily demonstrate, the
putative right to abortion is a creation that should be
undone.
A
The Court frst conceived a free-foating constitutional
right to privacy in Griswold v. Connecticut, 381 U. S. 479
(1965). In that case, the Court declared unconstitutional a
state law prohibiting the use of contraceptives, fnding that
it violated a married couple's “right of privacy.” Id., at 486.
The Court explained that this right could be found in the
“penumbras” of fve different Amendments to the Constitu-
tion—the First, Third, Fourth, Fifth, and Ninth. Id., at 484.
Rather than explain what free speech or the quartering of

372 JUNE
MEDICAL SERVICES L. L. C. v. RUSSO
Thomas, J., dissenting
troops had to do with contraception, the Court simply de-
clared
that these rights had created “zones of privacy” with
their “penumbras,” which were “formed by emanations from
those guarantees that help give them life and substance.”
Ibid. This reasoning is as mystifying as it is baseless.
As Justice Black observed in his dissent, this general
“right of privacy” was never before considered a constitu-
tional guarantee protecting citizens from governmental in-
trusion. Id., at 508–510. Rather, the concept was one of
tort law, championed by Samuel Warren and the future Jus-
tice Louis Brandeis in their 1890 Harvard Law Review arti-
cle entitled, “The Right to Privacy.” 4 Harv. L. Rev. 193.
Over 20 years after the Fourteenth Amendment was ratifed
and a century after the Bill of Rights was adopted, Warren
and Brandeis were among the frst to advocate for this pri-
vacy right in the context of tort relief for those whose per-
sonal information and private affairs were exploited by oth-
ers. Id., at 193, 195–196, 214–220. By “exalting a phrase
. . . used in discussing grounds for tort relief, to the level of
a constitutional rule,” the Court arrogated to itself the
“power to invalidate any legislative act which [it] fnd[s] irra-
tional, unreasonable[,] or offensive” as an impermissible “in-
terfere[nce] with `privacy.' ” Griswold, supra, at 510, n. 1,
511 (Black, J., dissenting).
Just eight years later, the Court utilized its newfound
power in Roe v. Wade, 410 U. S. 113 (1973). There, the
Court struck down a Texas law restricting abortion as a vio-
lation of a woman's constitutional “right of privacy,” which
it grounded in the “concept of personal liberty” purportedly
protected by the Due Process Clause of the Fourteenth
Amendment. Id., at 153. The Court began its legal analy-
sis by openly acknowledging that the Constitution's text does
not “mention any right of privacy.” Id., at 152. The Court
nevertheless concluded that it need not bother with our
founding document's text, because the Court's prior deci-
sions—chief among them Griswold—had already divined

Cite
as: 591 U. S. 299 (2020)
373
Thomas, J., dissenting
such a right from constitutional penumbras. Roe, 410 U. S.,
at
152. Without any legal explanation, the Court simply
concluded that this unwritten right to privacy was “broad
enough to encompass a woman's [abortion] decision.” Id.,
at 153.
B
Roe is grievously wrong for many reasons, but the most
fundamental is that its core holding—that the Constitution
protects a woman's right to abort her unborn child—fnds
no support in the text of the Fourteenth Amendment. Roe
suggests that the Due Process Clause's reference to “liberty”
could provide a textual basis for its novel privacy right.
Ibid. But that Clause does not guarantee liberty qua lib-
erty. Rather, it expressly contemplates the deprivation
of liberty and requires only that such deprivations occur
through “due process of law.” Amdt. 14, § 1. As I have
previously explained, there is “ `considerable historical evi-
dence support[ing] the position that “due process of law” was
[originally understood as] a separation-of-powers concept . . .
forbidding only deprivations not authorized by legislation or
common law.' ” Johnson v. United States, 576 U. S. 591, 623
(2015) (opinion concurring in judgment) (quoting D. Currie,
The Constitution in the Supreme Court: The First Hundred
Years 1789–1888, p. 272 (1985)). Others claim that the origi-
nal understanding of this Clause requires that “statutes that
purported to empower the other branches to deprive persons
of rights without adequate procedural guarantees [be] sub-
ject to judicial review.” Chapman & McConnell, Due Proc-
ess as Separation of Powers, 121 Yale L. J. 1672, 1679 (2012).
But, whatever the precise requirements of the Due Process
Clause, “[t]he notion that a constitutional provision that
guarantees only `process' before a person is deprived of life,
liberty, or property could defne the substance of those rights
strains credulity for even the most casual user of words.”
McDonald, 561 U. S., at 811 (opinion of Thomas, J.).

374 JUNE
MEDICAL SERVICES L. L. C. v. RUSSO
Thomas, J., dissenting
More specifcally, the idea that the Framers of the Four-
teenth
Amendment understood the Due Process Clause to
protect a right to abortion is farcical. See Roe, 410 U. S., at
174–175 (Rehnquist, J., dissenting). In 1868, when the Four-
teenth Amendment was ratifed, a majority of the States and
numerous Territories had laws on the books that limited (and
in many cases nearly prohibited) abortion. See id., at 175,
n. 1.
7
It would no doubt shock the public at that time to
learn that one of the new constitutional Amendments con-
tained hidden within the interstices of its text a right to
abortion. The fact that it took this Court over a century to
fnd that right all but proves that it was more than hidden—
it simply was not (and is not) there.
C
Despite the readily apparent illegitimacy of Roe, “the
Court has doggedly adhered to [its core holding] again and
7
See, e. g., Ala. Rev. Code § 3605 (1867); Terr. of Ariz., Howell Code, ch.
10, § 45 (1865); Ark. Rev. Stat., ch. 44, div. III, Art. II, § 6 (1838); 1861
Ca l. St at., ch. 521, § 45, p. 588; Colo. (Terr.) Rev. St at. § 42 (1868);
Conn. Gen. Stat., Tit. 12, §§ 22–24 (1861); Fla. Acts 1st Sess., ch. 1637,
subch. III, §§ 10, 11, ch. 8, §§ 9, 10 (1868); Terr. of Idaho Laws, Crimes and
Punishments § 42 (1864); I l l. St at., ch. 30, § 47 (1868); Ind. Laws
ch. LXXXI, § 2 (1859); Iowa Rev. Gen. Stat., ch. 165, § 4221 (1860); Kan.
Gen. Stat., ch. 31, §§ 14, 15, 44 (1868); La. Rev. Stat., Crimes and Offenses
§ 24 (1856); Me. Rev. Stat., Tit. XI, ch. 124, § 8 (1857); 1868 Md. Laws ch.
179, § 2, p. 315; Mass. Gen. Stat., ch. 165, § 9 (1860); Mich. Rev. Stat., Tit.
XXX, ch. 153, §§ 32, 33, 34 (1846); Terr. of Minn. Rev. Stat., ch. 100, §§ 10,
11 (1851); Miss. Rev. Code, ch. LXIV, Arts. 172, 173 (1857); Mo. Rev. Stat.,
Art. II, §§ 9, 10, 36 (1835); Terr. of Mont. Laws, Criminal Practice Acts
§ 41 (1864); Terr. of Neb. Rev. Stat., Crim. Code § 42 (1866); Terr. of Nev.
Laws ch. 28, § 42 (1861); 1848 N. H. Laws ch. 743, §§ 1, 2, p. 708; 1849
N. J. Laws pp. 266–267; 1854 Terr. of N. M. Laws ch. 3, §§ 10, 11, p. 88;
1846 N. Y. Laws ch. 22, § 1, p. 19; 1867 Ohio Laws § 2, pp. 135–136;
Ore. Gen. Laws, Crim. Code, ch. XLIII, § 509 (1845–1864); 1860 Pa. Laws
no. 374, §§ 87, 88, 89, pp. 404–405; Tex. Gen. Stat. Dig., Penal Code, ch. VII,
Arts. 531–536 (1859); 1867 Vt. Acts & Resolves no. 57, §§ 1, 3, pp. 64–66;
1848 Va. Acts, Tit. II, ch. 3, § 9, p. 96; Terr. of Wash. Stat., ch. II, §§ 37, 38
(1854); Wis. Rev. Stat., ch. 164, §§ 10, 11, ch. 169, §§ 58, 59 (1858).

Cite
as: 591 U. S. 299 (2020)
375
Thomas, J., dissenting
again, often to disastrous ends.” Gamble v. United States,
587
U. S. 678, 725 (2019) (Thomas, J., concurring). In doing
so, the Court has repeatedly invoked stare decisis. See,
e. g., Casey, 505 U. S., at 854–869. And today, a majority of
the Court insists that this doctrine compels its result. See
ante, at 344 (plurality opinion); ante, at 344–345, 354 (opinion
of Roberts, C. J.).
The Court's current “formulation of the stare decisis
standard does not comport with our judicial duty under Arti-
cle III,” which requires us to faithfully interpret the Consti-
tution. Gamble, 587 U. S., at 711 (Thomas, J., concurring).
Rather, when our prior decisions clearly confict with the
text of the Constitution, we are required to “privilege [the]
text over our own precedents.” Id., at 719. Because Roe
and its progeny are premised on a “demonstrably erroneous
interpretation of the Constitution,” we should not apply
them here. 587 U. S., at 719 (Thomas, J., concurring).
Even under The Chief Justice's approach to stare deci-
sis, continued adherence to these precedents cannot be justi-
fed. Stare decisis is “not an inexorable command,” ante, at
346 (internal quotation marks omitted), and this Court has
recently overruled a number of poorly reasoned precedents
that have proved themselves to be unworkable, see Knick v.
Township of Scott, 588 U. S. 180, 202–205 (2019) (Roberts,
C. J., for the Court); Franchise Tax Bd. of Cal. v. Hyatt,
587 U. S. 230, 248–249 (2019); Janus v. State, County, and
Municipal Employees, 585 U. S. 878, 916–929 (2018). As I
have already demonstrated, supra, at 371–374, Roe's reason-
ing is utterly defcient—in fact, not a single Justice today
attempts to defend it.
Moreover, the fact that no fve Justices can agree on the
proper interpretation of our precedents today evinces that
our abortion jurisprudence remains in a state of utter en-
tropy. Since the Court decided Roe, Members of this Court
have decried the unworkability of our abortion case law and
repeatedly called for course corrections of varying degrees.

376 JUNE
MEDICAL SERVICES L. L. C. v. RUSSO
Thomas, J., dissenting
See, e. g., 410 U. S., at 171–178 (Rehnquist, J., dissenting); Doe
v
. Bolton, 410 U. S. 179, 221–223 (1973) (White, J., dissent-
ing); Akron v. Akron Center for Reproductive Health, Inc.,
462 U. S. 416, 452–466 (1983) (O'Connor, J., dissenting);
Thornburgh v. American College of Obstetricians and Gyne-
cologists, 476 U. S. 747, 785–797 (1986) (White, J., dissenting);
Webster v. Reproductive Health Services, 492 U. S. 490, 532–
537 (1989) (Scalia, J., concurring in part and concurring in
judgment); Casey, 505 U. S., at 944–966 (Rehnquist, C. J., con-
curring in judgment in part and dissenting in part); id., at
979–1002 (Scalia, J., concurring in judgment in part and dis-
senting in part); Stenberg, 530 U. S., at 953–956 (Scalia, J.,
dissenting); id., at 980–983 (Thomas, J., dissenting); Whole
Woman's Health, 579 U. S., at 633–638 (Thomas, J., dissent-
ing). In Casey, the majority claimed to clarify this “juris-
prudence of doubt,” 505 U. S., at 844, but our decisions in the
decades since then have only demonstrated the folly of that
assertion, see Stenberg, 530 U. S., at 953–956 (Scalia, J., dis-
senting); id., at 960–979 (Kennedy, J., dissenting); Whole
Woman's Health, supra, at 633–638 (Thomas, J., dissenting).
They serve as further evidence that this Court's abortion
jurisprudence has failed to deliver the “ `principled and intel-
ligible' ” development of the law that stare decisis purports
to secure. Ante, at 346 (opinion of Roberts, C. J.) (quoting
Vasquez v. Hillery, 474 U. S. 254, 265 (1986)).
The Chief Justice advocates for a Burkean approach to
the law that favors adherence to “ `the general bank and capi-
tal of nations and of ages.' ” Ante, at 345 (quoting 3 E.
Burke, Refections on the Revolution in France 110 (1790)).
But such adherence to precedent was conspicuously absent
when the Court broke new ground with its decisions in Gris-
wold and Roe. And no one could seriously claim that these
revolutionary decisions—or Whole Woman's Health, decided
just four Terms ago—are part of the “inheritance from our
forefathers,” fdelity to which demonstrates “reverence to
antiquity.” E. Burke, Refections on the Revolution in
France 27–28 (J. Pocock ed. 1987).

Cite
as: 591 U. S. 299 (2020)
377
Alito, J., dissenting
More importantly, we exceed our constitutional authority
whene
ver we “appl[y] demonstrably erroneous precedent in-
stead of the relevant law's text.” Gamble, supra, at 711–712
(Thomas, J., concurring). Because we can reconcile neither
Roe nor its progeny with the text of our Constitution, those
decisions should be overruled.
***
Because we lack jurisdiction and our abortion jurispru-
dence fnds no basis in the Constitution, I respectfully
dissent.
8
Justice Alito, with whom Justice Gorsuch joins, with
whom Justice Thomas joins except as to Parts III–C and
IV–F, and with whom Justice Kavanaugh joins as to Parts
I, II, and III, dissenting.
The majority bills today's decision as a facsimile of Whole
Woman's Health v. Hellerstedt, 579 U. S. 582 (2016), and it's
true they have something in common. In both, the abortion
right recognized in this Court's decisions is used like a bull-
dozer to fatten legal rules that stand in the way.
In Whole Woman's Health, res judicata and our standard
approach to severability were laid low. Even Planned Par-
enthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992),
was altered.
Today's decision claims new victims. The divided major-
ity cannot agree on what the abortion right requires, but it
nevertheless strikes down a Louisiana law, Act 620, that the
legislature enacted for the asserted purpose of protecting
8
I agree with Justice Alito's application of our precedents except in
Part IV–F of his opinion, but I would not remand for further proceedings.
Because plaintiffs lack standing under Article III, I would instead remand
with instructions to dismiss for lack of jurisdiction. Alternatively, if I
were to reach the merits because a majority of the Court concludes we
have jurisdiction, I would affrm, as plaintiffs have failed to carry their
burden of demonstrating that Act 620 is unconstitutional, even under our
precedents.

378 JUNE
MEDICAL SERVICES L. L. C. v. RUSSO
Alito, J., dissenting
women's health. To achieve this end, the majority misuses
the
doctrine of stare decisis, invokes an inapplicable standard
of appellate review, and distorts the record.
The plurality eschews the constitutional test set out in
Casey and instead employs the balancing test adopted in
Whole Woman's Health. The plurality concludes that the
Louisiana law does nothing to protect the health of women,
but that is disproved by substantial evidence in the record.
And the plurality upholds the District Court's fnding that
the Louisiana law would cause a drastic reduction in the
number of abortion providers in the State even though this
fnding was based on an erroneous legal standard and a thor-
oughly inadequate factual inquiry.
The Chief Justice stresses the importance of stare de-
cisis and thinks that precedent, namely, Whole Woman's
Health, dooms the Louisiana law. But at the same time, he
votes to overrule Whole Woman's Health insofar as it
changed the Casey test.
Both the plurality and The Chief Justice hold that abor-
tion providers can invoke a woman's abortion right when
they attack state laws that are enacted to protect a woman's
health. Neither waiver nor stare decisis can justify this
holding, which clashes with our general rule on third-party
standing. And the idea that a regulated party can invoke
the right of a third party for the purpose of attacking legisla-
tion enacted to protect the third party is stunning. Given
the apparent confict of interest, that concept would be re-
jected out of hand in a case not involving abortion.
For these reasons, I cannot join the decision of the Court.
I would remand the case to the District Court and instruct
that court, before proceeding any further, to require the join-
der of a plaintiff with standing. If a proper plaintiff is
added, the District Court should conduct a new trial and
determine, based on proper evidence, whether enforcement
of Act 620 would diminish the number of abortion providers
in the State to such a degree that women's access to abor-

Cite
as: 591 U. S. 299 (2020)
379
Alito, J., dissenting
tions would be substantially impaired. In making that de-
ter
mination, the court should jettison the nebulous “good
faith” test that it used in judging whether the physicians who
currently lack admitting privileges would be able to obtain
privileges and thus continue to perform abortions if Act 620
were permitted to take effect. Because the doctors in ques-
tion (many of whom are or were plaintiffs in this case) stand
to lose, not gain, by obtaining privileges, the court should
require the plaintiffs to show that these doctors sought ad-
mitting privileges with the degree of effort that they would
expend if their personal interests were at stake.
I
Under our precedent, the critical question in this case is
whether the challenged Louisiana law places a “substantial
obstacle in the path of a woman seeking an abortion of a
nonviable fetus.” Casey, 505 U. S., at 877 (plurality opinion).
If a law like that at issue here does not have that effect,
it is constitutional. Id., at 884 ( joint opinion of O'Connor,
Kennedy, and Souter, JJ.).
Petitioners urge us to adopt a rule that is more favorable
to abortion providers. At oral argument, their attorney
maintained that a law that has no effect on women's access
to abortion is nevertheless unconstitutional if it is not needed
to protect women's health. See Tr. of Oral Arg. 18–19. Of
course, that is precisely the argument one would expect from
a business that wishes to be free from burdensome regula-
tions. But unless an abortion law has an adverse effect on
women, there is no reason why the law should face greater
constitutional scrutiny than any other measure that burdens
a regulated entity in the name of health or safety. See
Casey, 505 U. S., at 884–885 ( joint opinion). Many state and
local laws that are justifed as safety measures rest on debat-
able empirical grounds. But when a party saddled with
such restrictions challenges them as a violation of due proc-
ess, our cases call for the restrictions to be sustained if

380 JUNE
MEDICAL SERVICES L. L. C. v. RUSSO
Alito, J., dissenting
“it might be thought that the particular legislative measure
was
a rational way” to serve a valid interest. See William-
son v. Lee Optical of Okla., Inc., 348 U. S. 483, 488 (1955).
The test that petitioners advocate would give abortion pro-
viders an unjustifable advantage over all other regulated
parties, and for that reason, it was rejected in Casey. See
505 U. S., at 851 (majority opinion).
Casey also rules out the balancing test adopted in Whole
Woman's Health. Whole Woman's Health simply misinter-
preted Casey, and I agree that Whole Woman's Health
should be overruled insofar as it changed the Casey test.
Unless Casey is reexamined—and Louisiana has not asked
us to do that—the test it adopted should remain the govern-
ing standard.
II
Because the plura l ity adheres to the ba lanci ng test
adopted in Whole Woman's Health, it considers whether the
Louisiana law helps to protect the health of women seeking
abortions, and it concludes that “nothing in the record indi-
cates that the background vetting for admitting privileges
adds signifcantly to the vetting that the State Board of Med-
ica l Examiners a lready provides. ” An te, at 380. The
Chief Justice seems to agree, ante, at 356– 357 (opinion
concurring in judgment), although it is unclear why this issue
matters under the test he favors.
In any event, contrary to the view taken by the plurality
and (seemingly) by The Chief Justice, there is ample evi-
dence in the record showing that admitting privileges help
to protect the health of women by ensuring that physicians
who perform abortions meet a higher standard of compe-
tence than is shown by the mere possession of a license to
practice. In deciding whether to grant admitting privileges,
hospitals typically undertake a rigorous investigative proc-
ess to ensure that a doctor is responsible and competent and
has the training and experience needed to perform the proce-
dures for which the privileges are sought. As the Fifth Cir-

Cite
as: 591 U. S. 299 (2020)
381
Alito, J., dissenting
cuit explained, “hospitals verify an applicant's surgical abil-
ity
, training, education, experience, practice record, and
criminal history. These factors are reviewed by a board of
multiple physicians.” June Medical Services, L. L. C. v. Gee,
905 F. 3d 787, 805, n. 53 (2018).
The standards used by the great majority of hospitals in
deciding whether to grant privileges clearly show that hospi-
tals demand proof of a higher level of competence. The
Joint Commission, a nonproft organization that accredits
healthcare institutions, has issued standards for granting ad-
mitting privileges, and all of the hospitals whose rules are
relevant here (and the vast majority of Louisiana hospitals)
comply with those standards.
1
These standards call for an
examination of each applicant's licensure, education, training,
and current competence. See Joint Commission, 2020 Hos-
pital Accreditation Standards, pp. MS–23, 25, 26, 29. They
require an examination of a doctor's health records, clinical
data on performance, and peer recommendations, and they
demand that a hospital make a careful assessment of the pro-
cedures a physician may perform. Ibid.
Dr. Robert Marier, the former director of the Louisiana
Board of Medical Examiners (and the former dean of Louisi-
ana State University Medical School), testifed that the proc-
ess conducted by hospitals in deciding whether to grant
admitting privileges is “the primary way of determining
competency.” App. 818. That process, he explained, “thor-
oughly vet[s] the qualifcations of [applicants] to ensure that
[they] are competent to provide the services that are in ques-
tion.” Ibid.
June Medical's expert, Dr. Eva Pressman, agreed that “ad-
mitting privileges can serve the function of providing an
1
Quality Check, Find a Gold Seal Health Care Organization (2020), https://
www.qualitycheck.org/search/?keyword=louisiana#keyword=louisiana&
accreditationprogram=Hospital (listing “[o]rganizations that have achieved
The Gold Seal of Approval from the Joint Commission”).

382 JUNE
MEDICAL SERVICES L. L. C. v. RUSSO
Alito, J., dissenting
evaluation mechanism for physician competency.” Id., at
1042,
1091; Record 10864. Doe 3, one of the doctors who
currently performs abortions in Louisiana, also acknowl-
edged the credentialing value of admitting privileges, App.
247–248, as did Doe 4, another Louisiana abortion doctor,
Record 14155.
Although the plurality contends that the review conducted
by hospitals adds little to the vetting undertaken by the
State Board of Medical Examiners (Board), that is not true.
Hospitals look beyond the mere possession of a license, and
they do that for very obvious reasons. If nothing else, their
review process serves the hospitals' interests by diminishing
the risk of awards for malpractice committed by doctors
practicing on their premises. In Louisiana, hospitals that
perform negligent credentialing cannot beneft from the
State's medical malpractice cap. See Billeaudeau v. Opel-
ousas General Hospital Auth., 2016–0846, p. 21 (La. 10/19/
16), 218 So. 3d 513, 527. In addition, a hospital's “Medicare
participation and other certifcations depend on completing
the credentialing process.”
2
The review conducted by hospitals goes beyond that of
the Board in another way: it is continuous. Under the Joint
Commission Standards, hospitals must monitor physicians
with admitting privileges and can therefore make a running
assessment of their competence. See Record 11850. The
Board, on the other hand, conducts an inquiry before initially
issuing a license, but the annual license renewal process en-
tails nothing more than completing a standard form, paying
the required fee, and documenting a certain number of con-
2
Ryan, Negligent Credentialing: A Cause of Action for Hospital Peer
Review Decisions, 59 How. L. J. 413, 419 (2016); see also Eskine, Square
Pegs and Round Holes: Antitrust Law and the Privileging Decision, 44
U. Kan. L. Rev. 399, 401 (1996) (“[H]ospitals have strong incentives to
award staff privileges only to those physicians who have proven to be
capable and knowledgeable professionals”).

Cite
as: 591 U. S. 299 (2020)
383
Alito, J., dissenting
tinuing medical education credits. See 46 La. Admin. Code,
pt.
XLV, § 417 (2020).
Because hospitals continue to evaluate doctors after privi-
leges are granted, they may discover information that assists
the Board in carrying out its responsibilities. In the past,
hospitals have forwarded such information to the Board, and
such referrals have led the Board to take serious discipli-
nary actions.
3
The record shows that the vetting conducted by hospitals
goes far beyond what is done at Louisiana abortion clinics.
Some clinics demand nothing more than possession of a li-
cense. Take the example of petiti oner June Medica l.
Doe 3, the only person at that clinic who evaluates applicants,
testifed that he does not perform background checks of any
kind, not even criminal records checks. App. 249–250. In
the past, Doe 3 hired a radiologist and ophthalmologist to
perform abortions. Id., at 249.
Delta Clinic in Baton Rouge and Women's Clinic in New
Orleans have similarly lax practices. Leroy Brinkley, the
president of both clinics, testifed before a Pennsylvania
grand jury that, in making hiring decisions, “ `I don't judge
the license. If they have a license and the state gave
the license, it's not for me to determine if they are capa-
ble.' ”
4
A “ `background check,' ” he said, is not within his
“ `framework.' ”
5
Doe 4, who practiced at the now-defunct Causeway Clinic
near New Orleans, recounted the meager vetting that oc-
curred when he was hired at that facility. He had to
produce a valid medical license and DEA license but was
3
Brief for 207 Members of Congress as Amici Curiae 18–19 (lifetime
ban from obstetric surgery in Louisiana); id., at 19–20 (one-year probation
of medical license).
4
Brief for Louisiana State Legislators as Amici Curiae 8–9; App. to id.,
at 67a.
5
Ibid.

384 JUNE
MEDICAL SERVICES L. L. C. v. RUSSO
Alito, J., dissenting
not required “to undergo anything similar to review by a
credentia
ls committee.” Record 14156.
In light of these practices, it is no surprise that the Louisi-
ana Department of Health has issued Statements of Def-
ciency against abortion facilities for failing to adopt “ `a
detailed credentialing process for physicians,' ” failing to
investigate “ `possible restrictions' ” on physicians' licenses,
and failing to look into “ `evidence of prior malpractice
claims/settlements.' ”
6
Louisiana adopted Act 620 in the aftermath of the Kermit
Gosnell grand jury report, which expounded on the failures
of regulatory oversight that allowed Gosnell's practices to
continue for an extended period. See Report of Grand Jury
in No. 0009901–2008 (1st Jud. Dist. Pa., Jan. 14, 2011). The
grand jury concluded that closer supervision would have un-
covered Gosnell's egregious health and safety violations.
Gosnell had a medical license, but it is doubtful that any hos-
pital would have given him admitting privileges.
In sum, contrary to the plurality's assertion, there is ample
evidence in the record showing that requiring admitting
privileges has health and safety benefts. There is certainly
room for debate about the need for this requirement, but
under our case law, this Court's task is not to ascertain
whether a law “adds signifcantly” to the existing regulatory
framework. Instead, when confronted with a genuine dis-
pute about a law's benefts, we have afforded legislatures
“wide discretion” in assessing whether a regulation serves a
legitimate medical need and is medically reasonable even in
the face of medical and scientifc uncertainty. Gonzales v.
Carhart, 550 U. S. 124, 163 (2007); Mazurek v. Armstrong,
520 U. S. 968, 973 (1997) (per curiam); Akron v. Akron Cen-
ter for Reproductive Health, Inc., 462 U. S. 416, 458 (1983)
(O'Connor, J., dissenting) (“[L]egislatures are better suited”
than courts “to make the necessary factual judgments in this
6
Id., at 9.

Cite
as: 591 U. S. 299 (2020)
385
Alito, J., dissenting
area”); accord, Barsky v. Board of Regents of Univ. of
N
. Y., 347 U. S. 442, 451 (1954) (State has “legitimate concern
for maintaining high standards of professional conduct” in
the practice of medicine). Louisiana easily satisfed this
standard.
For these reasons, both the plurality and The Chief Jus-
tice err in concluding that the admitting-privileges require-
ment serves no valid purpose.
III
They also err in their assessment of Act 620's likely effect
on access to abortion. They misuse the doctrine of stare
decisis and the standard of appellate review for fndings of
fact.
A
Stare decisis is a major theme in the plurality opinion and
that of The Chief Justice. Both opinions try to create the
impression that this case is the same as Whole Woman's
Health and that stare decisis therefore commands the same
result. In truth, however, the two cases are very different.
While it is certainly true that the Texas and Louisiana stat-
utes are largely the same, the two cases are not. The deci-
sion in Whole Woman's Health was not based on the face of
the Texas statute, but on an empirical question, namely, the
effect of the statute on access to abortion in that State. 579
U. S., at 612. The Court's answer to that question depended
on numerous factors that may differ from State to State, in-
cluding the demand for abortions, the number and location
of abortion clinics and physicians, the geography of the State,
the distribution of the population, and the ability of phy-
sicians to obtain admitting privileges. Id., at 612–614.
There is no reason to think that a law requiring admitting
privileges will necessarily have the same effect in every
State. As a result, just because the Texas admitting-
privileges requirement was found by this Court, based on
evidence in the record of that case, to have substantially re-

386 JUNE
MEDICAL SERVICES L. L. C. v. RUSSO
Alito, J., dissenting
duced access to abortion in that State, it does not follow that
A
ct 620 would have comparable effects in Louisiana. See
id., at 610–614 (reviewing Texas record). The two States
are neighbors, but they are not the same. Accordingly, the
record-based empirical determination in Whole Woman's
Health is not controlling here.
The suggestion that Whole Woman's Health is materially
identical to this case is ironic, since the two cases differ
in a way that was critical to the Court's reasoning in
Whole Woman's Health, i. e., the difference between a pre-
enforcement facial challenge and a post-enforcement chal-
lenge based on evidence of the law's effects. See id., at
599. Before the Texas law went into effect, abortion provid-
ers mounted an unsuccessful facial challenge, arguing that
the law would drastically limit abortion access. The Fifth
Circuit held that the plaintiffs had not shown that the law
would create a substantial obstacle for women seeking abor-
tions, and a fnal judgment was entered against them.
Planned Parenthood of Greater Tex. Surgical Health Servs.
v. Abbott, 748 F. 3d 583, 590, 605 (2014). Then, after the law
had been in operation for some time, many of the same plain-
tiffs fled a second suit and again argued that the admitting-
privileges requirement violated Casey. Whole Woman's
Health v. Cole, 790 F. 3d 563, 577, and n. 14 (CA5 2015). The
state defendants sought dismissal based on the doctrine of
claim preclusion, but the Whole Woman's Health majority
rejected that argument. 579 U. S., at 599.
Why? Two words: “changed circumstances. ” Id., at
601. According to the Court, the pre-enforcement facial
challenge was not the same “claim” as the post-enforcement
claim because the “postenforcement consequences” of the
challenged Texas law were “unknowable before [the law]
went into effect.” Id., at 602 (emphasis added); see also ibid.
(“[I]t was still unclear how many clinics would be affected”);
id., at 599 (discussing “new material facts”); id., at 602 (re-
counting “later, concrete factual developments”).

Cite
as: 591 U. S. 299 (2020)
387
Alito, J., dissenting
The present case is in the same posture as the pre-
enforcement
facial challenge to the Texas law, and it should
therefore be obvious that this Court's decision in Whole
Woman's Health is not controlling.
B
1
Aside from suggesting that Whole Woman's Health is dis-
positive, the plurality and The Chief Justice provide one
other reason for concluding that Act 620, if allowed to go into
effect, would create a substantial obstacle for women seeking
abortions. Pointing to the District Court's fnding that the
Louisiana law would have a drastic effect on abortion access,
June Medical Services, LLC v. Kliebert, 250 F. Supp. 3d 27,
87 (MD La. 2017), the plurality and The Chief Justice note
that fndings of fact may be overturned only if clearly errone-
ous, and they see no such error here. Ante, at 322 (opinion
of Breyer, J.); ante, at 358 (opinion of Roberts, C. J.).
In taking this approach, they overlook the fawed legal
standard on which the District Court's fnding depends, and
they ignore the gross defciencies of the evidence in the
record.
Because the Louisiana law was not allowed to go into ef-
fect for any appreciable time, it was necessary for the Dis-
trict Court to predict what its effects would be. Attempting
to do that, the court apparently concluded that none of the
doctors who currently perform abortions in the State would
be replaced if the admitting-privileges requirement forced
them to leave abortion practice. 250 F. Supp. 3d, at 82.
That inference is debatable, as it primarily rests on the anec-
dotal testimony of June Medical's administrator. See id., at
81–82; App. 113–114. Neither the plurality nor The Chief
Justice explains why it should be accepted. That alone
casts doubt on the fnding to which the majority defers, but
the problems with the fnding do not stop there.

388 JUNE
MEDICAL SERVICES L. L. C. v. RUSSO
Alito, J., dissenting
The fnding was based on a fundamentally fawed test. In
attempti
ng to ascertain how many of the doctors who per-
form abortions in the State would have to leave abortion
practice for lack of admitting privileges, the District Court
received evidence in a variety of forms—some live testimony,
but also deposition transcripts, declarations, and even letters
from counsel—about the doctors' unsuccessful efforts to ob-
tain privileges. The District Court considered whether
these doctors had proceeded in “good faith”; it found that
they all met that standard; and it therefore concluded that
the law would leave the State with very few abortion
providers.
2
Under the reasoning just described, the factual fnding on
which the plurality and The Chief Justice rely—that the
Louisiana law would drastically reduce access to abortion in
the State—depends on the District Court's fnding that the
doctors in question exercised “good faith” in their quest for
privileges, but that test is woefully defcient.
It has aptly been said that “good faith” “ `is an elusive idea,
taking on different meanings and emphases as we move from
one context to another.' ” Black's Law Dictionary 836 (11th
ed. 2019). What the District Court understood the term to
mean in the present context is uncertain, but this is clear:
The District Court ignored a factor of the utmost impor-
tance, the incentives of the doctors in question.
When the District Court made its assessment of the
doctors' “good faith,” enforcement of Act 620 had been pre-
liminarily enjoined, and the doctors surely knew that en-
forcement would be permanently barred if the lawsuit was
successful. Thus, the doctors had everything to lose and
nothing to gain by obtaining privileges.
7
Two of the doc-
7
Petitioners maintain that an unsuccessful admitting-privileges applica-
tion is a “stain” on a doctor's medical record, because the rejection could
appear in a federal database and would need to be disclosed on future
applications for admitting privileges. Brief for Petitioners in No. 18–

Cite
as: 591 U. S. 299 (2020)
389
Alito, J., dissenting
tors—Does 1 and 2—are petitioners and cross-respondents
i
n this Court. Two others, Does 5 and 6, were plaintiffs ear-
lier but dropped out for unexplained reasons. See App.
1327. And Doe 3, although not a plaintiff, is the medical
director of June Medical, a party to this case. Id., at 186,
206, 245.
If these doctors had secured privileges, that would have
tended to defeat the lawsuit. Not only that, acquiring privi-
leges would have subjected all the doctors to the previously
described hospital monitoring, as well as any other obliga-
tions that a hospital imposed on doctors with privileges, such
as providing unpaid care for the indigent. See infra, at 396–
397. Thus, in light of the situation at the time when the
doctors made their attempts to get privileges, they had an
incentive to do as little as they thought the District Court
would demand, not as much as they would if they stood to
beneft from success.
Given this incentive structure, the District Court's “good
faith” test was not up to the task. Although the District
Court did not defne exactly what the test required, “good
faith” might easily mean only that a doctor lacked the subjec-
tive intent to avoid getting privileges. See Black's Law
Dictionary, at 836 (defning “good faith” to mean, among
other things, “absence of intent to defraud or seek uncon-
scionable advantage”).
In light of the doctors' incentives, more should have been
required. The court should have asked whether the doctors'
efforts to acquire privileges were equal to the efforts they
1323, p. 41, n. 7. As the record in this case shows, there is reason to doubt
that the prospect of rejection provides a suffcient incentive for doctors
to pursue privileges vigorously. See in fra, at 390–399. Perhaps that is
because only rejections for lack of “professional competence or profes-
sional conduct” need to be disclosed to the relevant federal database. 45
CFR §§ 60.12, 60.3 (2019). Petitioners also have not explained how a non-
competence-based rejection would have any bearing on future applications
for privileges.

390 JUNE
MEDICAL SERVICES L. L. C. v. RUSSO
Alito, J., dissenting
would have made if they knew that their ability to continue
to
perform abortions was at stake. The District Court did
not do that, and because its fnding on abortion access rests
on the wrong legal standard, it cannot stand. A fnding
based on an erroneous legal test is invalid; it cannot be sus-
tained under the “clearly erroneous” rule. See Abbott v.
Perez, 585 U. S. 379, 607 (2018) (“ `An appellate cour[t has]
power to correct errors of law, including those that . . . infect
. . . a fnding of fact that is predicated on a misunderstanding
of the governing rule of law' ” (quoting Bose Corp. v. Con-
sumers Union of United States, Inc., 466 U. S. 485, 501
(1984))); Pullman-Standard v. Swint, 456 U. S. 273, 287
(1982) (similar); see also 9C C. Wright & A. Miller, Federal
Practice and Procedure § 2585, p. 392 (3d ed. 2008) (Wright &
Miller) (“[I]t is axiomatic that the conclusions of law of
the trial judge are not protected by the `clearly erroneous'
test”).
8
3
Not only did the District Court apply the wrong test, but
the evidence in the record fails to show that the doctors
made anything more than perfunctory efforts to obtain
privileges.
There are three abortion clinics in Louisiana: June Medi-
cal, d/ b/a Hope Clinic, in Shreveport; Delta Clinic in Baton
Rouge; and Women's Clinic in New Orleans. Five doctors
perform abortions at those three locations: Doe 1, Doe 2, and
Doe 3 at June Medical; Doe 5 at Delta Clinic and Women's
8
The plurality claims that my criticism of the District Court's “good
faith” standard “is not a legal argument,” and instead refects a view of
the facts—namely, that the Does acted in “bad faith.” Ante, at 328–329.
But the District Court used “good faith” as the legal standard to assess
whether Act 620 would cause the Does to stop performing abortions.
Neither the District Court nor the plurality has defned “good faith.” Un-
less that term refects what the doctors would have done if the incentives
had been reversed—and the plurality does not argue that it does—there
is a legal issue.

Cite
as: 591 U. S. 299 (2020)
391
Alito, J., dissenting
Clinic; and Doe 6 at Women's Clinic. For purposes of the
ana
lysis that follows, I assume that Doe 1 could not get
privileges.
9
If we also assume that none of these doctors
would be replaced if they ceased to perform abortions,
the impact of the challenged law on abortion access in
the State depends on the ability of four doctors to secure
such privileges: Doe 2 (June Medical, Shreveport), Doe 3
(June Medical, Shreveport), Doe 5 (Delta Clinic, Baton
Rouge, and Women's Clinic, New Orleans), and Doe 6
(Women's Clinic, New Orleans). As I will show, under the
correct legal standard, June Medical failed to prove that Act
620 would drive these four doctors out of the abortion
practice.
Doe 2. The District Court concluded that Doe 2 made a
good-faith effort to obtain privileges, and the Court now af-
frms that holding. Ante, at 331. It is painfully obvious,
however, that Doe 2 did not act in the way one would expect
if compliance with Act 620 had been to his beneft.
E-mails in the record reveal that Doe 2 only half-heartedly
applied for privileges, did so on the advice of counsel, and
calculated that an outright denial would be best for his legal
challenge. See App. 1452 (“The lawyers think it is impor-
tant that I at least have an application pending at a hospi-
tal”); id., at 1453 (“It may, however, be more important from
9
The Fifth Circuit concluded that it would be “nearly impossible” for
Doe 1 to get privileges, June Medical Services L. L. C. v. Gee, 905 F. 3d
787, 812 (2018), and for this reason, the plurality does not linger on Doe 1.
Ante, at 328. Under the correct legal standard, however, it is not at all
clear that Doe 1 made the effort required, at least with respect to Christus
Health in Shreveport. He applied there for courtesy privileges, received
letters instructing him to pick up a badge, and when he called to clarify
the meaning of letters sent to him, an unnamed doctor supposedly told
him that he should apply for “some kind of a nonstaff caregiver type”
position, App. 725, and he then ceased all efforts to get courtesy staff
privileges at Christus, id., at 728. A person with a strong personal incen-
tive to obtain courtesy privileges would not necessarily have taken this
somewhat cryptic advice as a defnite rejection of his application.

392 JUNE
MEDICAL SERVICES L. L. C. v. RUSSO
Alito, J., dissenting
a legal challenge standpoint against this Bill just to have an
appl
ication pending or even denied” (emphasis added)).
Consistent with this attitude, Doe 2 declined to apply for
privileges at a Shreveport-area hospital, Christus Health,
where he previously had privileges while performing abor-
tions offsite and where another doctor who performed abor-
tions, Doe 3, maintained privileges. Id., at 382. Doe 2
knew that Doe 3 had privileges at Christus Health, a hospital
that grants “courtesy privileges,” which allow doctors to
admit patients but do not require a minimum number of ad-
missions. See id., at 406; Record 12125 (bylaws).
Doe 2's stated reasons for not applying to Christus Health
are not reasons that are likely to have deterred an individual
with a strong personal incentive to obtain privileges. He
testifed that Christus is a Catholic hospital and that he did
not apply there for that reason. App. 405–406. He added
that he applied to other hospitals where he “knew people
and might feel more comfortable,” “places that [he] thought
meant something ” and where he would have “the highest
likelihood” of obtaining privileges. Id., at 454. A person
with a strong personal incentive to get privileges is not likely
to have found these reasons suffcient to justify failing even
to apply.
The District Court did not address Doe 2's failure to apply
to Christus Health. 250 F. Supp. 3d, at 68–74. The plural-
ity, however, argues that Christus would not have granted
Doe 2 privileges because its bylaws object to abortion prac-
tice. Ante, at 330–331. But as noted, Christus Health had
previously granted privileges to doctors who perform abor-
tions. Not only did Doe 2 have privileges there while he was
performing abortions, but Doe 3 has had privileges at Christus
“off and on” for “30 years” and was reappointed to the Christus
Health staff in 2012 and again in 2014. App. 272; Record
12102 (2012–2014); id., at 12112 (2014–2016). Throughout
this time, he performed abortions. App. 206, 210.

Cite
as: 591 U. S. 299 (2020)
393
Alito, J., dissenting
Attempting to justify Doe 2's decision not to (re)apply to
Chr
istus, the plurality suggests that Doe 3 (and by extension
Doe 2) successfully concealed their abortion practice from
Christus, and that if Doe 2 had applied for privileges,
Christus would have discovered that he was performing
abortions and denied his application on that ground. It is
doubtful that Christus was actually in the dark, and specula-
tive that an application would have been denied for this rea-
son.
10
But the important point is that a doctor with a strong
10
The suggestion that Doe 2's abortion practice cou ld have eluded
Christus (and therefore that it would be an impediment to obtaining privi-
leges again) blinks reality. There is no evidence that the hospital was
unaware of Doe 2's abortion practice when he was on staff. Nor is there
reason to believe that Christus would not have reviewed Doe 2's profes-
sional practice history, Record 12190–12191, or demanded disclosure of
past malpractice claims at the time he held privileges there, id., at 12194;
App. 374 (medical malpractice claim against Doe 2 arising from practice at
June Medical); see also supra, at 380–383 (reviewing hospital credentialing).
The notion that Doe 3's abortion practice has escaped attention for 30
years is even harder to believe. Christus has reappointed Doe 3 in re-
cent years based on a biennial process that assesses “[p]erformance and
conduct in each hospital and/or other healthcare organizatio[n]” outside of
Christus. Record 12136; see also ibid. (requiring staff members to submit
“reapplication form [with] complete information to update his/her fle on
items listed in his/her original application”). Doe 3 spends “Thursday
afternoon” and “all day on Saturday” at the abortion clinic, App. 206, and
therefore presumably is unavailable for his on-call duties at Christus at
those times, Record 12123. Doe 3 is affliated with the National Abortion
Federation and has attended “many” of their national conferences to ob-
tain continuing medical education credits. App. 203. And Doe 3 in-
dicated that all eight OB/GYNs in Bossier City learned of his abortion
practice when discussing a possible on-call rotation system. See id., at
200–202. If those facts did not tip off the hospital, perhaps Christus
learned about Doe 3's abortion practice when one of his patients was trans-
ferred directly from June Medical to Christus, bleeding and in need of a
hysterectomy, id., at 217–218, or when Doe 1's privileges application
named Doe 3 as a peer reference, Record 13025. Whatever the Christus
bylaws say, abortion practice does not appear to have presented an obsta-
cle to a successful association with the hospital.

394 JUNE
MEDICAL SERVICES L. L. C. v. RUSSO
Alito, J., dissenting
personal incentive would have tried and not simply gone
through
the motions.
Instead of applying to Christus Health, Doe 2 made a for-
mal application to Willis-Knighton Bossier City (WKBC) and
an informal inquiry at University Hospital, but the record
does not show that he pursued those requests with any zeal.
At WKBC, he did not apply for courtesy privileges, which
do not require a minimum number of admissions, Record
9642–9643, but instead sought an active staff position, id., at
9751, and according to Doe 2, this application was doomed
because he could not satisfy the minimum-admissions re-
quirement for such a position, App. 384–390. Doe 2 later
sent a three-paragraph e-mail to a WKBC e-mail address
purporting to amend his 102-page application so as to seek
only courtesy privileges, id., at 1446, but the record does not
refect whether that e-mail was received or processed, and
subsequent correspondence from WKBC does not acknowl-
edge it, id., at 1435. Doe 2 stated that he sought an active
staff position “to keep [his] practice options for the future
open,” Record 9756, but that does not explain his lack of
diligence in seeking courtesy staff privileges. Although it
is true that WKBC requested inpatient records from Doe 2
for an active staff position, we do not know whether the hos-
pital would have made the same request had Doe 2 applied
for courtesy privileges. App. 1435.
11
Doe 2 said he made an informal inquiry about admitting
privileges at University Hospital, where he has consulting
privileges, but that the head of the OB/GYN Department,
11
Each year, a physician with courtesy staff privileges at WKBC may
have as many as 49 “patient contacts,” which are defned as “any admission
and management, consultation, procedure, response to emergency call, and
newborns.” Id., at 9628, 9642 (capitalization omitted). And contrary to
the plurality's suggestion, the fact that WKBC imposes the same “[f]actors
for [e]valuation” for courtesy and active staff-applicants says little, since
those factors do not set out any quantum of patient records, and require
only “relevant . . . experience” for the position sought. Id., at 9669.

Cite
as: 591 U. S. 299 (2020)
395
Alito, J., dissenting
Dr. Groome, “essentially said” that the hospital would not
upgrade
his credentials. Id., at 384. Doe 2 attributed this
to “the political nature of what I do and the controversy of
what I do.” Ibid. But Doe 2 did not introduce evidence (or
seek to elicit testimony from Dr. Groome) substantiating his
account of this informal inquiry.
Doe 2's account raises obvious questions. Since he was
already a member of the University Hospital staff, it is not
apparent why the hospital would reject his request for up-
graded privileges because of “the political nature” of his
practice. Id., at 440–441. And University Hospital has
long been on notice of Doe 2's abortion practice. He has
been affliated with that hospital since 1979, Record 9757,
and has performed abortions since 1980, id., at 9759.
In sum, Doe 2 all but admitted in his e-mails that his ef-
forts to obtain privileges were perfunctory; he declined to
apply at a hospital where he previously had privileges; at
the only hospital where he made a formal application, he
sought a position he knew he could not get for lack of a suff-
cient number of admissions; and at one other hospital (where
he already had consulting privileges) he did no more than
make an informal inquiry. The District Court should have
considered whether Doe 2's efforts were consistent with the
conduct of a person who really wanted to get privileges.
Doe 5. Doe 5 is an OB/GYN who performs abortions at
Women's Clinic in New Orleans and Delta Clinic in Baton
Rouge. Doe 5 did not testify at the hearing in District
Court, but the District Court found that he proceeded in
“good faith” based on a declaration and the transcript of a
deposition. 250 F. Supp. 3d, at 75–76.
Doe 5 obtained courtesy privileges at Touro Hospital in
New Orleans, see App. 1401, and therefore all agree that Act
620 would not prevent him from practicing at Women's
Clinic, id., at 1397. The remaining question is whether the
law would bar him from performing abortions in Baton
Rouge.

396 JUNE
MEDICAL SERVICES L. L. C. v. RUSSO
Alito, J., dissenting
Doe 5 could continue to do that if one hospital in that area
granted
him admitting privileges, and Doe 5 testifed that
one, Woman's Hospital, will grant him privileges once he
fnds a doctor who is willing to cover him when he is not
available. See id., at 1334. Doe 5 asked exactly one doctor
to serve as his covering physician. That does not show that
he “could not fnd a covering physician,” ante, at 328, if he
made other inquiries.
The plurality justifes Doe 5's meager effort based on pure
speculation. Because the one doctor Doe 5 asked had a
transfer agreement with the Baton Rouge abortion clinic, the
plurality reasons that “Doe 5 could have reasonably thought
that, if this doctor wouldn't serve as his covering physician,
no one would.” Ante, at 332. The plurality goes on to say
that “it was well within the District Court's discretion to
credit that reading of the record.” Ibid.
This argument shows how far the plurality is willing to go
to strike down the Louisiana law. The plurality relies on
speculation about why Doe 5 made only one inquiry and why
the District Court found this one inquiry suffcient. In fact,
however, Doe 5 never explained why he asked only one doc-
tor, and he never intimated that he gave up because that
doctor had a transfer agreement with the clinic. Nor did
the District Court rely on that inference in fnding that Doe
5 exhibited good faith. See 250 F. Supp. 3d, at 75–76. And
in any event, even if Doe 5 had a particularly strong reason
to hope that the doctor he asked would agree to cover for
him, it hardly follows that other inquiries would necessarily
fail.
Doe 5 applied for privileges at two other area hospitals,
Lane and Baton Rouge, but he did not even call back to check
on them because he thought his “best chances for privileges
[were] at Woman's Hospital,” App. 1334, and he noted that
Lane and Baton Rouge require that their doctors treat some
indigent patients “for free basically” while opening them-

Cite
as: 591 U. S. 299 (2020)
397
Alito, J., dissenting
selves up to liability, id., at 1335. Also, Doe 5 explained,
Lane
is “further away” from the Delta Clinic than the other
hospitals. Ibid.
To sum up Doe 5's situation: The challenged law would
have no effect on him if he could fnd a covering doctor in
Baton Rouge, but he asked only one doctor. He did little to
pursue applications at two other hospitals because he was
not optimistic about his chances and those hospitals required
a certain amount of unpaid service to the poor.
Doe 6. Doe 6 is a Board-certifed OB/GYN who practices
at Women's Clinic in New Orleans. There are nine qualify-
ing New Orleans-area hospitals, and according to his affda-
vit, Doe 6 made an informal inquiry at one and fled a formal
application at another. The District Court found that he at-
tempted in “good faith” to obtain admitting privileges even
though Doe 6 did not testify and was never subjected to ad-
versarial questioning. The only relevant information before
the court were several paragraphs in Doe 6's declaration, id.,
at 1307–1313, and hearsay in the declaration of the Women's
Clinic administrator, id., at 1119–1131; see also 250 F. Supp.
3d, at 76–77.
These questionable sources left many important questions
unanswered, for example, why Doe 6 did not apply for privi-
leges at Touro Hospital, where Doe 5, who also performs
abortions at Women's Clinic, has privileges.
The plurality provides an explanation that is found no-
where in the record, i.e., that Doe 6 could not get privileges
at Touro because, unlike Doe 5, who performs both surgical
and medication abortions, Doe 6 performs only medication
abortions. Ante, at 335. Not only is this pure speculation,
but it is not evident why this difference might matter. The
plurality notes that Doe 6's medication abortion patients
have never been admitted to a hospital, but the plurality also
argues that very few surgical abortion patients are admitted.
Ante, at 334, 341. If Doe 6 had testifed or been deposed, he

398 JUNE
MEDICAL SERVICES L. L. C. v. RUSSO
Alito, J., dissenting
could have been asked about his decision not to apply at
T
ouro, but that did not occur.
Aside from Touro, there are eight other hospitals in the
New Orleans area, but Doe 6 apparently made no attempt to
get privileges at six of these, and nothing in the scant record
explains why. He stated that he formally applied at East
Jefferson Hospital and made an informal inquiry at Tulane
Hospital, but much about these efforts is unknown. No rep-
resentative from Tulane or East Jefferson testifed or was
deposed, and no documents relating to either application
were offered.
With respect to Doe 6's informal inquiry at Tulane,
all that the District Court had before it was a single
paragraph in Doe 6's declaration in which he stated that
he spoke to an unnamed individual and was told he should
not bother to apply because he did not have the requisite
number of admissions per year. App. 1310. Nothing in the
record reveals the type of privileges about which Doe 6
inquired.
Doe 6 furnished even less information about his formal ap-
plication to East Jefferson hospital—a hospital which offers
courtesy privileges, and does not impose an admissions re-
quirement for those privileges. Record 10679. In his dec-
laration, which he signed in September 2014, Doe 6 wrote
that he had applied but had not received a response. App.
1311. A few weeks later, June Medical's counsel informed
the District Court by letter that Doe 6 had complied with
East Jefferson's request for additional information, id., at 54,
but the record says nothing about any later developments.
Presumably, East Jefferson did not grant privileges, but the
record does not disclose why. Did Doe 6 provide all the in-
formation that the hospital requested and do everything else
required by the application process? The record is silent,
and the District Court was incurious.
Doe 3. Doe 3, who performs abortions at the June Medi-
cal clinic in Shreveport, would not be directly affected by Act

Cite
as: 591 U. S. 299 (2020)
399
Alito, J., dissenting
620 because he maintains privileges at two area hospitals,
Chr
istus Health and WKBC, but he stated that he would
stop performing abortions if, as a result of that law, he was
left as the only abortion doctor in the northern part of the
State. Id., at 236. Thus, if Doe 1 or Doe 2 got privileges
and continued to perform abortions, Doe 3, according to his
testimony, would remain as well.
12
Putting all this together, it is apparent that the record
does not come close to showing that Doe 2, Doe 5, and Doe
6 made the sort of effort that one would expect if their ability
to continue performing abortions had depended on success.
These doctors had an incentive to do the bare minimum that
they thought the judge would demand—and as it turned out,
the judge did not demand much, not even an appearance in
his courtroom. In short, the record does not show that Act
620 would drive any of these doctors out of abortion practice,
and therefore the Act would not lead Doe 3 to leave either.
It follows that the District Court's fnding on Act 620's likely
effects cannot stand.
C
The Court should remand this case for a new trial under
the correct legal standards. The District Court should
apply Casey's “substantial obstacle” test, not the Whole
Woman's Health balancing test. And it should require
those challenging Act 620 to demonstrate that the doctors
who lack admitting privileges attempted to obtain them with
the same zeal they would have exhibited if the Act were in
effect and they stood to lose by failing in those efforts.
12
The plurality suggests that, if Doe 3 were to leave abortion practice,
it would be attributable to Act 620. But even the most ardent opponents
of Act 620 did not contemplate that the law would prompt abortion doctors
who satisfed the law's requirements to quit. Record 11231–11234, 11291.
And if this outcome was not foreseeable at the time of enactment, it
is hard to see how the District Court could blame Act 620 for causing
Doe 3 to leave abortion practice. Cf. Restatement (Second) of Torts § 440,
§ 442A (1964).

400 JUNE
MEDICAL SERVICES L. L. C. v. RUSSO
Alito, J., dissenting
IV
On
remand, the District Court should not permit June
Medical to assert the rights of women wishing to obtain an
abortion. The court should require the joinder of a plaintiff
whose own rights are at stake. Our precedents rarely per-
mit a plaintiff to assert the rights of a third party, and June
Medical cannot satisfy our established test for third-party
standing. Indeed, what June Medical seeks is something we
have never allowed. It wants to rely on the rights of third
parties whose interests confict with its own.
A
The plurality holds that Louisiana waived any objection to
June Medical's third-party standing, ante, at 316, but that is
a misreading of the record. The plurality relies on a passing
statement in a brief fled by the State in District Court in
connection with the plaintiffs' request for a temporary re-
straining order, but the statement is simply an accurate
statement of Circuit precedent on the standing of abortion
providers. See App. 44. It does not constitute a waiver.
It is true that Louisiana did not affrmatively make the
third-party standing argument until it fled its cross-petition
for certiorari, but “[w]e may make exceptions to our general
approach to claims not raised below.” Polar Tankers, Inc.
v. City of Valdez, 557 U. S. 1, 14 (2009) (plurality opinion).
A party's failure to raise an issue does not deprive us of the
power to take it up, so long as the court below has passed on
the question. See Lebron v. National Railroad Passenger
Corporation, 513 U. S. 374, 379 (1995) (“[E]ven if this were
a claim not raised by petitioner below, we would ordinarily
feel free to address it, since it was addressed by the court
below” (emphasis deleted)); S. Shapiro et al., Supreme Court
Practice § 6–26(b), p. 6–104 (11th ed. 2019) (collecting cases).
In this case, no one disputes that the Fifth Circuit passed
on the issue of third-party standing in Louisiana's appeal
from the District Court's entry of a preliminary injunction.

Cite
as: 591 U. S. 299 (2020)
401
Alito, J., dissenting
June Medical Services, L. L. C. v. Gee, 814 F. 3d 319, 322–
323
(2016). And when we granted the State's cross-petition,
we took up this question and received briefng and argument
on it. 588 U. S. 948 (2019).
We have a strong reason to decide the question of third-
party standing because it implicates the integrity of future
proceedings that should occur in this case. This case should
be remanded for a new trial, and we should not allow that
to occur without a proper plaintiff. Nothing compels us to
forbear from addressing this issue. See Carlson v. Green,
446 U. S. 14, 17, n. 2 (1980); Shapiro, Supreme Court Practice
§ 6.26(h), at 6–111.
B
This case features a blatant confict of interest between
an abortion provider and its patients. Like any other regu-
lated entity, an abortion provider has a fnancial interest in
avoiding burdensome regulations such as Act 620's admitting-
privileges requirement. Applying for privileges takes time
and energy, and maintaining privileges may impose addi-
tional burdens. See App. 1335. Women seeking abortions,
on the other hand, have an interest in the preservation of
regulations that protect their health. The confict inherent
in such a situation is glaring.
Some may not see the confict in this case because they
are convinced that the admitting-privileges requirement
does nothing to promote safety and is really just a ploy. But
an abortion provider's ability to assert the rights of women
when it challenges ostensible safety regulations should not
turn on the merits of its claim.
The problem with the rule that the plurality embraces is
highlighted if we consider challenges to other safety regula-
tions. Suppose, for example, that a clinic in a State that
allows certifed non-physicians to perform abortions claims
that the State's certifcation requirements are too onerous
and that they imperil the clinic's continued operation.
Should the clinic be able to assert the rights of women in

402 JUNE
MEDICAL SERVICES L. L. C. v. RUSSO
Alito, J., dissenting
attacking this regulation, which the state lawmakers thought
was
important to protect women's health?
When an abortion regulation is enacted for the asserted
purpose of protecting the health of women, an abortion pro-
vider seeking to strike down that law should not be able to
rely on the constitutional rights of women. Like any other
party unhappy with burdensome regulation, the provider
should be limited to its own rights.
C
This rule is supported by precedent and follows from gen-
eral principles regarding conficts of interest. We have al-
ready held that third-party standing is not appropriate
where there is a potential confict of interest between the
plaintiff and the third party. In Elk Grove Unifed School
Dist. v. Newdow, 542 U. S. 1, 9, 15, and n. 7 (2004), a potential
confict of interest between the plaintiff and his daughter
arose on appeal. The father had asserted that his daughter
had a constitutional right not to hear others recite the words
“ `under God' ” when the pledge of allegiance was recited at
her public school, but the child's mother maintained that her
daughter had “no objection either to reciting or hearing ” the
full pledge. Id., at 5, 9. The Court held that the father
lacked prudential standing, because “the interests of this
parent and this child are not parallel and, indeed, are poten-
tially in confict.” Id., at 15. The lower court's judgment
(based, as it was, on a presentation by a conficted party)
was therefore reversed.
Newdow recognized the seriousness of conficts of interest
in the specifc context of third-party claims, but the law is al-
ways sensitive to potential conficts when a party sues in a rep-
resentative capacity. Parties naturally “tailor their own
presentation to the interest that each of them has,” and a con-
fict therefore creates “a risk that the party will not provide
adequate representation of the interest of the absentee.” See
7C Wright & Miller § 1909 (2007). Thus, in class-action

Cite
as: 591 U. S. 299 (2020)
403
Alito, J., dissenting
suits, Federal Rule of Civil Procedure 23(a)(4) demands that
the
named plaintiff possess “the same interest and suffer the
same injury” as class members. General Telephone Co. of
Southwest v. Falcon, 457 U. S. 147, 156 (1982) (internal quo-
tation marks omitted). That requirement, we have said,
“serves to uncover conficts of interest between named par-
ties and the class they seek to represent.” Amchem Prod-
ucts, Inc. v. Windsor, 521 U. S. 591, 625 (1997). Similarly,
under Federal Rule of Civil Procedure 17(c), a party repre-
senting a minor or incompetent person may be replaced if
the representative has conficting interests. See Sam M. v.
Carcieri, 608 F. 3d 77, 86 (CA1 2010); 6A Wright & Miller
§ 1570 (2010). And of course, an attorney cannot represent
a client if their interests confict.
13
D
The confict of interest inherent in a case like this is reason
enough to reject third-party standing, and our standard
rules on third-party standing provide a second, independent
reason. As a general rule, a plaintiff “must assert his own
legal rights and interests, and cannot rest his claim to relief
on the legal rights or interests of third parties.” Warth v.
Seldin, 422 U. S. 490, 499 (1975). We have recognized a
“limited” exception to this rule, but in order to qualify, a
litigant must demonstrate (1) closeness to the third party
and (2) a hindrance to the third party's ability to bring suit.
Kowalski v. Tesmer, 543 U. S. 125, 129–130 (2004); see also
Powers v. Ohio, 499 U. S. 400, 410–411 (1991).
The record shows that abortion providers cannot satisfy
either prong of this test. First, a woman who obtains an
abortion typically does not develop a close relationship with
the doctor who performs the procedure. On the contrary,
their relationship is generally brief and very limited. In
Louisiana, a woman may make her frst visit to an abortion
13
See, e. g., ABA Model Rules of Professional Conduct 1.7–1.9, 1.18
(2016).

404 JUNE
MEDICAL SERVICES L. L. C. v. RUSSO
Alito, J., dissenting
clinic the day before the procedure, and if she goes to June
Medica
l, she is likely to have a short meeting with a coun-
selor, not the doctor who will actually perform the proce-
dure. See App. 784–786. She will typically meet the abor-
tion doctor for the frst time just before the procedure, and
if Doe 1's description is representative, their relationship
consists of the doctor's telling the woman what he will do,
offering to answer questions, informing her of his progress
as the abortion is performed, and asking her to remain calm.
Id., at 688. Doe 4 testifed that the surgical procedure itself
takes “two or three minutes.” Record 14144. Doe 3 testi-
fed that he can perform six abortions an hour and once per-
formed 64 abortions in a 2-day period. App. 207, 243.
In the case of medication abortions, patients are required
to schedule a follow-up appointment three weeks after the
procedure, see id., at 129–131, 690, but surgical abortions,
which constitute the majority of the procedures at June Med-
ical and across the State, do not require any follow-up, id.,
at 691, and the great majority of women never return to the
clinic, id., at 131; accord, id., at 1342 (Doe 5).
This description of doctor-patient interactions at June
Medical is similar to those recounted in testimony heard by
the legislature. See Record 11263 (“there was no doctor/
patient relationship”); id., at 11226 (“I can tell you, women
I've counseled, many times they don't know who the abortion
provider is”). Amici who have had abortions recount simi-
larly distant relationships with their abortion doctors.
14
For
these reasons, the frst prong of the third-party standing rule
cannot be met.
Nor can the second, which requires that there be a hin-
drance to the ability of the third party to bring suit. See
Kowalski, 543 U. S., at 130. The plurality opinion in Single-
14
See Brief for 2,624 Women Injured by Abortion et al. as Amici Curiae
14–22 (frsthand accounts of abortion procedures in Louisiana); Brief for
Priests for Life et al. as Amici Curiae 7–8, and App. (accounts from Loui-
siana and other States).

Cite
as: 591 U. S. 299 (2020)
405
Alito, J., dissenting
ton v. Wulff, 428 U. S. 106, 117 (1976), found that women
seek
ing abortions were hindered from bringing suit, but the
reasoning in that opinion is hard to defend. The opinion
identifed two purported obstacles to suits by women wish-
ing to obtain abortions—the women's desire to protect their
privacy and the prospect of mootness. Ibid. But as Justice
Powell said at the time, these “alleged `obstacles' . . . are
chimerical.” Id., at 126 (opinion concurring in part and dis-
senting in part).
First, a woman who challenges an abortion restriction can
sue under a pseudonym, and many have done so. Ibid.
(“Our docket regularly contains cases in which women, using
pseudonyms, challenge statutes that allegedly infringe their
right to exercise the abortion decision”). Other precautions
may be taken during the course of litigation to avoid re-
vealing their identities. See App. 196.
15
And there is little
reason to think that a woman who challenges an abortion
restriction will have to pay for counsel. See Brief for
Respondent/Cross-Petitioner 40–41.
Second, if a woman seeking an abortion brings suit, her
claim will survive the end of her pregnancy under the
capable-of-repetition-yet-evading-review exception to moot-
ness. See Roe v. Wade, 410 U. S. 113, 125 (1973) (“Preg-
nancy provides a classic justifcation for a conclusion of non-
15
Four cases to reach this Court have featured exclusively women
plaintiffs. See Beal v. Doe, 432 U. S. 438 (1977); Maher v. Roe, 432 U. S.
464 (1977); Poelker v. Doe, 432 U. S. 519 (1977) (per curiam); H. L. v.
Matheson, 450 U. S. 398 (1981). But there are a number of cases in which
women have been co-plaintiffs along with abortion clinics or providers.
See Leavitt v. Jane L., 518 U. S. 137 (1996) (per curiam); Ohio v. Akron
Center for Reproductive Health, 497 U. S. 502 (1990); Hodgson v. Minne-
sota, 497 U. S. 417 (1990); Williams v. Zbaraz, 448 U. S. 358 (1980); Harris
v. McRae, 448 U. S. 297 (1980); Bellotti v. Baird, 443 U. S. 622 (1979); Roe
v. Wade, 410 U. S. 113 (1973). More recently, abortion patients have liti-
gated in the lower courts using their names, those of legal guardians, or
pseudonyms. Brief for Respondent/Cross-Petitioner 39; see also Brief for
State of Arkansas et al. as Amici Curiae 3, and n. 1.

406 JUNE
MEDICAL SERVICES L. L. C. v. RUSSO
Alito, J., dissenting
mootness”). To be sure, when the pregnancy terminates, an
i
ndividual plaintiff 's immediate interest in prosecuting the
case may diminish. But this is generally true whenever the
capable-of-repetition-yet-evading-review exception applies.
See 13C Wright & Miller § 3533.8 (2008) (collecting examples).
The Singleton plurality opinion is the only opinion in
which any Members of this Court have ever attempted
to justi fy th ird-par ty st andi ng for abor ti on providers,
and judged on its own merits, the opinion is thoroughly
unconvincing.
E
The Court does not address the confict of interest inher-
ent in this challenge, or plaintiffs' failure to satisfy the two
prongs of our third-party standing doctrine. See Kowalski,
543 U. S., at 130. Instead, the plurality says that it “is . . .
common” in third-party standing case law for “plaintiffs [to]
challeng[e] a law ostensibly enacted to protect [a third party]
whose rights they are asserting.” Ante, at 320. In support
of this strange proposition, the plurality cites two of our
prior decisions, but neither decision acknowledged or ad-
dressed any potential confict of interest, and both cases in-
volved circumstances very different from those present here.
Both cases also featured facts ensuring that third-party in-
terests were fairly represented.
In the frst case, Craig v. Boren, 429 U. S. 190 (1976), the
sole appellant with a live claim at the time of decision was a
beer vendor who challenged a law that allowed females to
purchase 3.2% beer at the age of 18 but barred males from
making such purchases until they turned 21. Id., at 193.
The Court's lead explanation for its refusal to dismiss had
nothing to do with the merits of the vendor's third-party
standing claim. The Court noted that the other appellant,
Curtis Craig, had been under the age of 21 during the pro-
ceedings below, that the appellees had not raised a standing
objection below, and that they had not pressed an objection
in this Court. Id., at 192–194.

Cite
as: 591 U. S. 299 (2020)
407
Alito, J., dissenting
Only after this discussion did the Court say anything
about
the merits of the third-party claim, and even then, the
Court said nothing about a confict of interest between the
vendor and underage males. The plurality now claims there
was a potential confict: Young men under the age of 21 had
an interest in being barred from buying beer in order to
protect themselves from their own reckless conduct. Suffce
it to say that there is no indication that this supposed confict
occurred to anybody when Craig was before this Court.
The plurality's second case, Department of Labor v. Trip-
lett, 494 U. S. 715 (1990), is even weaker. A state bar ethics
committee fled a disciplinary proceeding in state court
against a lawyer who had entered into an attorney-fee ar-
rangement that was prohibited by a provision of the Black
Lung Benefts Act. When the State Supreme Court ruled
in favor of the lawyer on the ground that the provision in
question violated Black Lung claimants' constitutional right
to counsel, both the bar ethics committee and the Depart-
ment of Labor, which had intervened in state court, success-
fully petitioned for review in this Court. We then held that
the attorney could defend the decision below based on the
rights of his client.
Triplett is inapposite here for at least two reasons. First,
the lawyer in that case did not initiate the litigation. Sec-
ond, because the case arose in state court, his right to invoke
his client's rights in that forum was a question of state law.
Had we prevented him from asserting those rights in this
Court, he would have been unable to defend himself against
the petitioners' arguments. And on top of all this, Triplett,
as we noted in Kowalski, “involved the representation of
known claimants,” and that “existing attorney-client rela-
tionship [was] quite different from the hypothetical . . . rela-
tionship” between the abortion providers and clients in the
present case. 543 U. S., at 131 (emphasis deleted). That
Craig and Triplett are the best authorities the plurality can
fnd is telling proof of the weakness of its position.

408 JUNE
MEDICAL SERVICES L. L. C. v. RUSSO
Alito, J., dissenting
F
As
The Chief Justice points out, stare decisis generally
counsels adherence to precedent, and in deciding whether
to overrule a prior decision, we consider factors beyond the
strength of the precedent's reasoning. Ante, at 346. But
here, such factors weigh in favor of overruling.
Reexamination of a precedent may be appropriate when it
is an “outlier” and its reasoning cannot be reconciled with
other established precedents, see Franchise Tax Bd. of Cal.
v. Hyatt, 587 U. S. 230, 248 (2019); Janus v. State, County,
and Municipal Employees, 585 U. S. 878, 925 (2018); United
States v. Gaudin, 515 U. S. 506, 521 (1995); Rodriguez de Qui-
jas v. Shearson/American Express, Inc., 490 U. S. 477, 484
(1989), and that is true of the rule allowing abortion provid-
ers to assert their patients' rights. The parties have not
brought to our attention any other situation in which a party
is allowed to invoke the right of a third party with blatantly
adverse interests. The rule that the majority applies here
is an abortion-only rule.
The Chief Justice properly notes that subsequent legal
developments may support overruling a precedent, ante, at
346, and that factor too is present here. Both our general
standing jurisprudence and our treatment of third-party
standing have changed since Singleton. We have stressed
the importance of insisting that a plaintiff assert an injury
that is particular to its own situation. See, e. g., Spokeo, Inc.
v. Robins, 578 U. S. 330, 339 (2016); Clapper v. Amnesty Int'l
USA, 568 U. S. 398, 409 (2013); Lujan v. Defenders of Wild-
life, 504 U. S. 555, 560 (1992). Moreover, in Kowalski, 543
U. S. 125, we refned our rule for third-party standing, and
in Newdow, 542 U. S. 1, we made it clear that a plaintiff can-
not sue on behalf of a third party if the parties' interests
may confict.
The presence or absence of reliance is often a critical fac-
tor in applying the doctrine of stare decisis, see, e. g., Fran-
chise Tax Bd., 587 U. S., at 248; Janus, 585 U. S., at 926;

Cite
as: 591 U. S. 299 (2020)
409
Gorsuch, J., dissenting
South Dakota v. Wayfair, Inc., 585 U. S. 162, 186 (2018); Hil-
t
on v. South Carolina Public Railways Comm'n, 502 U. S.
197, 206–207 (1991), but neither the plurality nor The Chief
Justice claims that any reliance interests are at stake here.
Women wishing to obtain abortions have not taken any ac-
tion in reliance on the ability of abortion providers to sue on
their behalf, and eliminating third-party standing for provid-
ers would not interfere with the ability of women to sue.
Nor does it appear that abortion providers have done any-
thing in reliance on the special third-party standing rule
they have enjoyed. If that rule were abrogated, they could
still ask to intervene or appear as an amicus curiae in a suit
brought by a woman, but it is deeply offensive to our rules
of standing to permit them to sue in the name of their pa-
tients when they challenge laws enacted to protect their pa-
tients' safety.
On remand, the District Court should permit the joinder
of a plaintiff with standing and should not proceed until such
a plaintiff appears.
***
The decision in this case, like that in Whole Woman's
Health, twists the law, and I therefore respectfully dissent.
Justice Gorsuch, dissenting.
The judicial power is constrained by an array of rules.
Rules about the deference due the legislative process, the
standing of the parties before us, the use of facial challenges
to invalidate democratically enacted statutes, and the award
of prospective relief. Still more rules seek to ensure that
any legal tests judges may devise are capable of neutral and
principled administration. Individually, these rules may
seem prosaic. But, collectively, they help keep us in our
constitutionally assigned lane, sure that we are in the busi-
ness of saying what the law is, not what we wish it to be.
Today's decision doesn't just overlook one of these rules.
It overlooks one after another. And it does so in a case

410 JUNE
MEDICAL SERVICES L. L. C. v. RUSSO
Gorsuch, J., dissenting
touching on one of the most controversial topics in contempo-
rary
politics and law, exactly the context where this Court
should be leaning most heavily on the rules of the judicial
process. In truth, Roe v. Wade, 410 U. S. 113 (1973), is not
even at issue here. The real question we face concerns our
willingness to follow the traditional constraints of the judi-
cial process when a case touching on abortion enters the
courtroom.
*
When confronting a constitutional challenge to a law, this
Court ordinarily reviews the legislature's factual fndings
under a “deferential” if not “[u]ncritical” standard. Gonza-
les v. Carhart, 550 U. S. 124, 165–166 (2007). When facing
such a challenge, too, this Court usually accepts that “the
public interest has been declared in terms well-nigh conclu-
sive” by the legislature's adoption of the law—so we may
review the law only for its constitutionality, not its wisdom.
Berman v. Parker, 348 U. S. 26, 32 (1954). Today, however,
the plurality declares that the law before us holds no benefts
for the public and bears too many social costs. All while
sharing virtually nothing about the facts that led the legisla-
ture to conclude otherwise. The law might as well have
fallen from the sky.
Of course, that's hardly the case. In Act 620, Louisiana's
legislature found that requiring abortion providers to hold
admitting privileges at a hospital within 30 miles of the clinic
where they perform abortions would serve the public inter-
est by protecting women's health and safety. Those in to-
day's majority never bother to say so, but it turns out that
Act 620's admitting privileges requirement for abortion pro-
viders tracks longstanding state laws governing physicians
who perform relatively low-risk procedures like colonosco-
pies, Lasik eye surgeries, and steroid injections at ambula-
tory surgical centers. In fact, the Louisiana legislature
passed Act 620 only after extensive hearings at which ex-

Cite
as: 591 U. S. 299 (2020)
411
Gorsuch, J., dissenting
perts detailed how the Act would promote safer abortion
treatment
—by providing “a more thorough evaluation mech-
anism of physician competency,” promoting “continuity of
care” following abortion, enhancing inter-physician commu-
nication, and preventing patient abandonment.
Testifying physicians explained, for example, that abor-
tions carry inherent risks including uterine perforation, hem-
orrhage, cervical laceration, infection, retained fetal body
parts, and missed ectopic pregnancy. Unsurprisingly, those
risks are minimized when the physician providing the abor-
tion is competent. Yet, unlike hospitals which undertake
rigorous credentialing processes, Louisiana's abortion clinics
historically have done little to ensure provider competence.
Clinics have failed to perform background checks or to in-
quire into the training of doctors they brought on board.
Clinics have even hired physicians whose specialties were
unrelated to abortion—including a radiologist and an oph-
thalmologist. Requiring hospital admitting privileges, wit-
nesses testifed, would help ensure that clinics hire compe-
tent professionals and provide a mechanism for ongoing peer
review of physician profciency. Loss of admitting privi-
leges, as well, might signal a problem meriting further inves-
tigation by state offcials. At least one Louisiana abortion
provider's loss of admitting privileges following a patient's
death alerted the state licensing board to questions about
his competence, and ultimately resulted in restrictions on
his practice.
The legislature also heard testimony that Louisiana's clin-
ics and the physicians who work in them have racked up
dozens of citations for safety and ethical violations in recent
years. Violations have included failing to use sterile equip-
ment, maintaining unsanitary conditions, failing to monitor
patients' vital signs, permitting improper administration
of medications by unauthorized persons, and neglecting to
obtain informed consent from patients. Some clinics have

412 JUNE
MEDICAL SERVICES L. L. C. v. RUSSO
Gorsuch, J., dissenting
failed to maintain supplies of emergency medications and
medica
l equipment for treating surgical complications. One
clinic used single-use hoses and tubes on multiple patients,
and the solution needed to sterilize instruments was changed
so infrequently that it often had pieces of tissue foating in it.
Hospital credentialing processes, witnesses suggested, could
help prevent such violations. In the course of the creden-
tialing process, physicians' prior safety lapses, including
criminal violations and medical malpractice suits, would be
revealed and investigated, and incompetent doctors might be
weeded out.
The legislature heard, too, from affected women and emer-
gency room physicians about clinic doctors' record of aban-
doning their patients. One woman testifed that, while she
was hemorrhaging, her abortion provider told her, “ `You're
on your own. Get out.' ” Eventually, the woman went to a
hospital where an emergency room physician removed fetal
body parts that the abortion provider had left in her body.
Another patient who complained of severe pain following her
abortion was told simply to go home and lie down. When
she decided for herself to go to the emergency room, physi-
cians discovered a tear in her uterus and a large hematoma
containing a fetal head. The woman required an emergency
hysterectomy. In another case, a clinic physician allowed a
patient to bleed for three hours, yet a clinic employee testi-
fed that the physician would not let her call 911 because
of possible media involvement. In the end, the employee
called anyway and emergency room personnel discovered
that the woman had a perforated uterus and needed a hys-
terectomy. A different physician explained that she rou-
tinely treats abortion complications in the emergency room
when the physician who performed the abortion lacks admit-
ting privileges. In her experience, that situation “puts a
woman's health at an unnecessary, unacceptable risk that re-
sults from a delay of care . . . and a lack of continuity of
care.” Admitting privileges would mitigate these risks, she

Cite
as: 591 U. S. 299 (2020)
413
Gorsuch, J., dissenting
testifed, because “the physician who performed the proce-
dure
would be the one best equipped to evaluate and treat
the patient.”
Nor did the legislature neglect to consider the law's poten-
tial burdens. As witnesses explained, the admitting privi-
leges requirement in Act 620 for abortion clinic providers
would parallel existing requirements for many physicians
who work at ambulatory surgical centers. And there is no
indication this parallel admitting privileges requirement has
led to the closing of any surgical centers or otherwise pre-
sented obstacles to quality care in Louisiana. Further, leg-
islators learned that at least one Louisiana abortion provider
already had qualifying admitting privileges, suggesting
other competent abortion providers would be able to comply
with the new regulation as well.
Since trial, the State continues to accrue evidence support-
ing Act 620, and the State has sought to lodge that evidence
with this Court. In particular, the State has learned of ad-
ditional safety violations at Louisiana clinics, including evi-
dence of an abortion provider deviating from the standard of
care in a way that can result in the live births of nonviable
fetuses. The State has also proffered new evidence of po-
tential criminal conduct by Louisiana abortion providers, in-
cluding the failure to report the forcible rape of a minor and
performing an abortion on a minor without parental consent
or judicial bypass.
*
After overlooking so many facts and the deference owed
to the legislative process, today's decision misapplies many of
the rules that normally constrain the judicial process. Start
with the question who can sue. To establish standing in fed-
eral court, a plaintiff typically must assert an injury to her
own legally protected interests—not the rights of someone
else. Warth v. Seldin, 422 U. S. 490, 499 (1975). This rule
ensures that the judiciary stays focused on the “factual situa-
tion before [it],” New York v. Ferber, 458 U. S. 747, 768 (1982),

414 JUNE
MEDICAL SERVICES L. L. C. v. RUSSO
Gorsuch, J., dissenting
while “questions of wide public signifcance” remain with
“gover
nmental institutions . . . more competent to address”
them, Warth, 422 U. S., at 500.
No one even attempts to suggest this usual prerequisite is
satisfed here. The plaintiffs before us are abortion provid-
ers. They do not claim a constitutional right to perform
that procedure, and no one on the Court contends they hold
such a right. Instead, the abortion providers before us seek
only to assert the constitutional rights of an undefned, un-
named, indeed unknown, group of women who they hope will
be their patients in the future.
In narrow circumstances, to be sure, this Court has al-
lowed cases to proceed based on “third-party standing.”
But to qualify, the plaintiff must demonstrate both that he
has a “ `close' relationship” with the person whose rights he
wishes to assert and that some “ `hindrance' ” hampers the
right-holder's “ability to protect his own interests.” Kowal-
ski v. Tesmer, 543 U. S. 125, 130 (2004). Think of parents
and children, guardians and wards. In these special cases,
the logic goes, the plaintiff 's interests are so aligned with
those of a particular right-holder that the litigation will pro-
ceed in much the same way as if the right-holder herself
were present.
Nothing like that exists here. In the frst place, the plain-
tiff abortion providers identify no reason to think affected
women are unable to assert their own rights if they wish.
Instead, the plaintiffs merely gesture to a 1976 plurality
opinion suggesting that women seeking abortions “gener-
ally” face a hindrance in asserting their own rights. Single-
ton v. Wulff, 428 U. S. 106, 118 (1976). But whatever the
supposition of a 1976 plurality, in the years since interested
women have challenged abortion regulations on their own
behalf in case after case. See, e. g., McCormack v. Herzog,
788 F. 3d 1017 (CA9 2015); Jane L. v. Bangerter, 102 F. 3d
1112 (CA10 1996); Margaret S. v. Edwards, 794 F. 2d 994
(CA5 1986); see also Whole Woman's Health v. Hellerstedt,

Cite
as: 591 U. S. 299 (2020)
415
Gorsuch, J., dissenting
579 U. S. 582, 631–632 (2016) (Thomas, J., dissenting) (collect-
i
ng additional examples). And no one suggests this suit dif-
fers from those cases in any meaningful way. The truth is
transparent: The plaintiffs hardly try to carry their burden
of showing a hindrance because they can't.
Separately and additionally, the abortion providers cannot
claim a “close relationship” with the women whose rights
they assert. Normally, the fact that the plaintiffs do not
even know who those women are would be enough to pre-
clude third-party standing. This Court has held, for exam-
ple, that a future “hypothetical attorney-client relationship”
(as opposed to an “existing” one) cannot confer third-party
standing. Ko w alski, 543 U. S., at 131. Likew ise, th is
Court has held that a pediatrician lacks standing to defend a
State's abortion laws on the theory that fetuses are his fu-
ture potential patients. Diamond v. Charles, 476 U. S. 54,
66 (1986). If standing isn't present in cases like those, it is
hard to see how it might be present in this one.
Nor is that the end of the plaintiffs' standing problems.
Even when a plaintiff can identify an actual and close rela-
tionship, this Court will normally refuse third-party stand-
ing if the plaintiff has a potential confict of interest with the
person whose rights are at issue. See Elk Grove Unifed
School Dist. v. Newdow, 542 U. S. 1, 15, 17–18 (2004). And
it's pretty hard to ignore the potential for confict here.
After all, Louisiana's law expressly aims to protect women
from the unsafe conditions maintained by at least some abor-
tion providers who, like the plaintiffs, are either unwilling or
unable to obtain admitting privileges. Cf. ante, at 401–403
(Alito, J., dissenting).
Seeking to set all these diffculties aside, today's decision
contends that Louisiana has waived its prudential standing
arguments. But in doing so, today's decision mistakes three
more legal principles. First, what the plurality character-
izes as a waiver arises from the State's admission that appli-
cable circuit law allowed the plaintiffs standing. At worst,

416 JUNE
MEDICAL SERVICES L. L. C. v. RUSSO
Gorsuch, J., dissenting
that refects a forfeiture of, or a failure to pursue, a possible
arg
ument against standing, not an affrmative waiver of the
argument, or an intentional relinquishment of any interest
in the issue. Cf. ante, at 400–401 (Alito, J., dissenting).
Second, this Court typically relies on a forfeiture or even a
waiver only if the issue was “ `not pressed or passed upon' ”
in the lower courts. United States v. Williams, 504 U. S. 36,
41 (1992). That rule's disjunctive phrasing is no accident—
it “permit[s] review of an issue not pressed so long as it has
been passed upon” below. Ibid. Here, the Fifth Circuit
did pass upon the standing question—so forfeiture or waiver
presents no impediment to our review. See June Medical
Services, L.L.C. v. Gee, 814 F. 3d 319, 322–323 (2016). Fi-
nally, this Court has held that even truly forfeited or waived
arguments may be entertained when structural concerns or
third-party rights are at issue. Freytag v. Commissioner,
501 U. S. 868, 878–880 (1991). Both conditions are present
here.
*
Next consider our rules about facial challenges. Gener-
ally, courts decide the constitutionality of statutes as applied
to specifc people in specifc situations and disfavor facial
challenges seeking to forestall a law's application in every
circumstance. The reasons for this rule are many. Not
least, when a court focuses on the parties before it, it is able
to assess the law's application within a real factual context,
rather than left to imagine “every conceivable situation
which might possibly arise in the application of complex and
comprehensive legislation.” Barrows v. Jackson, 346 U. S.
249, 256 (1953). Importantly, too, as-applied challenges re-
duce the risk that a court will “short circuit the democratic
process” by interfering with legislation any more than neces-
sary to remedy a complaining party's injury. Washington
State Grange v. Washington State Republican Party, 552
U. S. 442, 451 (2008).

Cite
as: 591 U. S. 299 (2020)
417
Gorsuch, J., dissenting
As a result, the path for a litigant pursuing a facial chal-
lenge
is deliberately diffcult. Typically, a plaintiff seeking
to render a law unenforceable in all of its applications must
show that the law cannot be constitutionally applied against
anyone in any situation. United States v. Stevens, 559 U. S.
460, 472–473 (2010). This Court has carved out an exception
to this high bar for overbreadth challenges under the First
Amendment. Some suggest this exception is ill-advised.
United States v. Sineneng-Smith, 590 U. S. 371, 386–388
(2020) (Thomas, J., concurring). But even in First Amend-
ment overbreadth challenges, a plaintiff still must show that
the law in question has “ `a substantial number of . . . applica-
tions [ that] are unconstitutional, judged in relation to the
statute's plainly legitimate sweep.' ” Stevens, 559 U. S.,
at 473 (quoting Washington State Grange, 552 U. S., at 449,
n. 6); see also Stevens, 559 U. S., at 481–482 (holding law un-
constitutional under First Amendment where “impermissible
applications . . . far outnumber[ed] any permissible ones”).
Today, it seems any of these standards would demand too
much. Instead of asking whether the law has a “substantial
number of unconstitutional applications” compared to its “le-
gitimate sweep,” the plurality asks whether the law will im-
pose a “ `substantial obstacle' ” for a “ `large fraction' ” of
“ `those women for whom the provision is an actual rather
than an irrelevant restriction.' ” Ante, at 343. Concededly,
the two tests sound similar—after all, who could say whether
a “substantial number” is more or less than a “large frac-
tion”? But notice the switch at the end, where the plurality
limits our focus to women for whom the law is an “actual”
restriction. Because of that limitation, it doesn't matter
how many women continue to have convenient access to
abortions: Any woman not burdened by the challenged law
is deemed “irrelevant” to the analysis. So instead of asking
how the law's unconstitutional applications compare to its
legitimate sweep, the plurality winds up asking only whether
the law burdens a very large fraction of the people that it

418 JUNE
MEDICAL SERVICES L. L. C. v. RUSSO
Gorsuch, J., dissenting
burdens. The words might sound familiar, but this circular
test
is unlike anything we apply to facial challenges any-
where else.
Abandoning our usual caution with facial challenges leads,
predictably, to overbroad conclusions. Suppose that for a
substantial number of women Louisiana's law imposes no
burden at all. These women might live in an area well-
served by well-qualifed abortion providers who can easily
obtain admitting privileges. No one could dispute the law
is constitutional as applied to these women and providers.
But suppose the law makes it diffcult to obtain an abor-
tion on the other side of the State, where qualifed provid-
ers are fewer and farther between. Under the standard
applied today, it seems the entire law would fall state-
wide, notwithstanding its undeniable constitutionality in
many applications.
Nor is this possibility farfetched. Today's decision de-
clares the admitting privileges requirement unconstitutional
even as applied to Does 3 and 5, each of whom holds admit-
ting privileges. Not a single woman would be burdened by
requiring these doctors to maintain the privileges they al-
ready have. Yet the State may not enforce the law even
against them. In effect, the standard for facial challenges
has been fipped on its head: Rather than requiring that a
law be unconstitutional in all its applications to fall, today's
decision requires that Louisiana's law be constitutional in all
its applications to stand.
*
Even when it comes to assessing the law's effects on the
subset of women deemed “relevant,” this case proves un-
usual. Normally, to obtain a prospective injunction like the
one approved today, a plaintiff must show that irreparable
injury is not just possible, but likely. O'Shea v. Littleton,
414 U. S. 488, 501–502 (1974); Winter v. Natural Resources
Defense Council, Inc., 555 U. S. 7, 22 (2008). Yet, nothing
like that standard can be found at work today.

Cite
as: 591 U. S. 299 (2020)
419
Gorsuch, J., dissenting
The plaintiffs allege that statewide enforcement of Act 620
wou
ld irreparably injure Louisiana women by making it dif-
fcult for them to obtain abortions. To justify injunctive re-
lief on that theory, however, it can't be enough to show that
the law would induce any particular doctor or clinic to stop
providing abortions. Instead, the plaintiffs would have to
show that a suffcient number of clinics would close (without
enough new clinics opening) so that supply would no longer
meet demand for abortion in the State. And when assessing
claims like that, we usually proceed with caution, aware of
“the diffculties and uncertainties involved in determining
how [a] relevant market” would behave in response to
changed circumstances. Illinois Brick Co. v. Illinois, 431
U. S. 720, 743 (1977). At a minimum, we expect one change
in a marketplace—such as the introduction of a new regula-
tion—will induce other responsive changes. General Mo-
tors Corp. v. Tracy, 519 U. S. 278, 307–309 (1997). When
“the claim is one that simply makes no economic sense,” too,
the plaintiffs “must come forward with more persuasive evi-
dence to support their claim than would otherwise be neces-
sary.” Matsushita Elec. Industrial Co. v. Zenith Radio
Corp., 475 U. S. 574, 587 (1986).
Rather than follow these rules, today's decision proceeds
to accept one speculative proposition after another to arrive
at what can only be called a worst case scenario. Take the
question whether existing providers will be able to continue
their existing practices. On its way to predicting dire re-
sults, the plurality uncritically accepts that, if Act 620 went
into effect, Doe 5 would be unable to obtain admitting privi-
leges in Baton Rouge. The plurality does so even though it
is undisputed that the sole remaining step for him to obtain
privileges is to fnd a doctor willing to cover for him—and
that Doe 5 gave up on that effort after asking only one
doctor. Similarly, the plurality takes it as given that Doe
2 would be denied admitting privileges even though he
dropped a pending application when the hospital simply sent
him a request for additional information. Maybe these phy-

420 JUNE
MEDICAL SERVICES L. L. C. v. RUSSO
Gorsuch, J., dissenting
sicians didn't feel it was worth putting in much effort to ob-
t
ain admitting privileges given their chances of prevailing in
this lawsuit. But it “taxes the credulity of the credulous”
to think they would have treated the process so lightly if
their livelihood depended on securing admitting privileges.
Maryland v. King, 569 U. S. 435, 466 (2013) (Scalia, J., dis-
senting). Cf. ante, at 388–399 (Alito, J., dissenting).
That example only begins to illustrate the remarkably
static view of the market on display here. Today's decision
also appears to assume that, if Louisiana's law took effect,
not a single hospital would amend its rules to permit abor-
tion providers easier access to admitting privileges; no clinic
would choose to relocate closer to a hospital that offers ad-
mitting privileges rather than permanently close its doors;
the prospect of signifcant unmet demand would not prompt
a single Louisiana doctor with established admitting privi-
leges to begin performing abortions; and unmet demand
would not induce even one out-of-state abortion provider to
relocate to Louisiana.
All these assumptions are open to question. Hospitals can
(and do) change their policies in response to regulations.
Clinic operators have opened, closed, and relocated clinics
numerous times. There are hundreds of OB/GYNs with ac-
tive admitting privileges in Louisiana who could lawfully
perform abortions tomorrow. Millions of Americans move
between States every year to pursue their profession. Yet
with conditions ripe for market entry and expansion, today's
decision foresees nothing but clinic closures and unmet
demand.
Not only questionable, the plurality's assumptions are al-
ready contradicted by emerging evidence. For example, a
major hospital reacted to the law by developing a new type
of admitting privileges expressly for an abortion provider
seeking to comply with Act 620. Whether this type of privi-
leges satisfes the statute is yet unknown—so, again assum-
ing the worst, today's decision simply ignores the possibility.

Cite
as: 591 U. S. 299 (2020)
421
Gorsuch, J., dissenting
If nothing else, this development belies the prediction that
hospit
als statewide would stand idly by as thousands upon
thousands of requests for abortions go unfulflled.
What's more, as this suit was in progress, the State discov-
ered two additional Louisiana abortion providers not re-
fected in the district court's opinion. No one disputes the
accuracy of the State's information about these two provid-
ers. Nor could anyone deny the importance of this informa-
tion, when so much of today's decision seems to turn on the
exact quantity and distribution of a relatively small number
of abortion providers. Normally, this Court might hesitate
to deliver a fact-bound decision premised on facts we know
to be incorrect. But today's decision, assuming the worst
once more, simply proceeds as if these providers didn't
exist.
If there is a silver lining, though, it may be here. This
Court generally recognizes that facts can change over time—
and that, when they do, legal conclusions based on them may
have to change as well. Even so-called “permanent injunc-
tions” are actually provisional—open to modifcation “to pre-
vent the possibility that [they] may operate injuriously in the
future.” Glenn v. Field Packing Co., 290 U. S. 177, 179
(1933) (per curiam). After all, when the facts change, the
law cannot pretend nothing has happened. For that reason,
we have instructed lower courts to reconsider injunctions
“when the party seeking relief . . . can show a signifcant
change either in factual conditions or in law.” Agostini v.
Felton, 521 U. S. 203, 215 (1997) (internal quotation marks
omitted). And, given the fact-intensive nature of today's
analysis, the relief directed might well need to be reconsid-
ered below if, for example, hospitals start offering qualifying
admitting privileges to abortion providers, a handful of abor-
tion providers relocate from other States, or even a tiny
fraction of Louisiana's existing OB/GYNs decide to begin
performing abortions. Given the post-trial developments
Louisiana has already identifed but no court has yet consid-

422 JUNE
MEDICAL SERVICES L. L. C. v. RUSSO
Gorsuch, J., dissenting
ered, there's every reason to think the factual context here
is
prone to signifcant changes.
*
Another background rule, another exception. When it
comes to the factual record, litigants normally start the case
on a clean slate. While a previous case's legal rules can cre-
ate precedent binding in the current dispute, earlier “fact-
bound” decisions typically “provide only minimal help when
other courts consider” later cases with different factual
“circumstances.” Buford v. United States, 532 U. S. 59, 65–
66 (2001). We've long recog ni zed that th is arrange-
ment is required by due process—because while the law
binds everyone equally, parties are normally entitled to the
chance to present ev idence about their own unique
factual circumstances. See Blonder-Tongue Laboratories,
Inc. v. University of Ill. Foundation, 402 U. S. 313, 329
(1971).
No hint of these rules can be found in today's decision.
From beginning to end, the plurality treats Whole Woman's
Health's fact-laden predictions about how a Texas law would
impact the availability of abortion in that State in 2016 as if
they obviously and necessarily applied to Louisiana in 2020.
Most notably, the plurality cites Whole Woman's Health for
the proposition that admitting privileges requirements offer
no beneft when it comes to patient safety or otherwise. But
Whole Woman's Health found an absence of beneft based
only on the particular factual record before it. Nothing in
the decision suggested that its conclusions about the costs
and benefts of the Texas statute were universal principles
of law, medicine, or economics true in all places and at all
times. See, e. g., 579 U. S., at 610–611, 613–614, 619. Yet
that is exactly how the plurality treats those conclusions—
all while leaving unmentioned the facts Louisiana amassed
in an effort to show that its law promises patient benefts in
this place at this time.

Cite
as: 591 U. S. 299 (2020)
423
Gorsuch, J., dissenting
Not only does today's decision treat factual questions as if
they
were legal ones, it treats legal questions as if they were
facts. We have previously explained that it would “be in-
consistent with the idea of a unitary system of law” for the
Supreme Court to defer to lower court legal holdings. Or-
nelas v. United States, 517 U. S. 690, 697 (1996). Yet, the
plurality today reviews for clear error not only the district
court's fndings about how the law will affect abortion access,
but also the lower court's judgment that the law's effects
impose a “substantial obstacle.” The plurality defers not
only to the district court's fndings about the extent of the
law's benefts, but also to the lower court's judgment that
the benefts are so limited that the law's burden on abortion
access is “undue.” By declining to apply our normal de novo
standard of review to questions of law like these, today's de-
cision proceeds on the remarkable premise that, even if the
district court was wrong on the law, a duly enacted statute
must fall because the lower court wasn't clearly wrong.
*
After so much else, one might at least hope that the legal
test lower courts are tasked with applying in this area turns
out to be replicable and predictable. After all, “[l]iving
under a rule of law entails various suppositions, one of which
is that `all persons are entitled to be informed as to what the
State commands or forbids.' ” Papachristou v. Jackson-
ville, 405 U. S. 156, 162 (1972) (quotation modifed). The ex-
istence of an administrable legal test even lies at the heart
of what makes a case justiciable—as we have put it, federal
courts may not entertain a question unless there are “ `judi-
cially discoverable and manageable standards for resolving
it.' ” Rucho v. Common Cause, 588 U. S. 684, 700 (2019).
Nor does the need for clear rules dissipate as the stakes
grow. If anything, the judicial responsibility to avoid stand-
ardless decisionmaking is at its apex in “ `the most heated
partisan issues.' ” Id., at 704.

424 JUNE
MEDICAL SERVICES L. L. C. v. RUSSO
Gorsuch, J., dissenting
Consider, for example, our precedents involving the First
Amendment'
s right to free speech. In an effort to keep
judges from straying into the political fray, this Court has
provided a detailed roadmap: A court must determine
whether protected speech is at issue, whether the restriction
is content based or content neutral, whether the State's as-
serted interest is compelling or substantial, and whether the
State might rely on less restrictive alternatives to achieve
the same goals. At no point may a judge simply “ `balanc[e]'
the governmental interests . . . against the First Amendment
rights” at stake because, as we have recognized, it would be
“inappropriate” for any court “to label one as being more
important or more substantial than the other.” United
States v. Robel, 389 U. S. 258, 268, n. 20 (1967). Any such
raw balancing of competing social interests must be left
to the legislature—“[o]ur inquiry is more circumscribed.”
Ibid. Nor is this idea unique to the First Amendment con-
text. This Court has consistently rejected the idea that
courts may decide constitutional issues by relying on “ab-
stract opinions . . . of the justice of the decision” or “of the
merits of the legislation” at issue. Davidson v. New Or-
leans, 96 U. S. 97, 104 (1878).
By contrast, and as today's concurrence recognizes, the
legal standard the plurality applies when it comes to admit-
ting privileges for abortion clinics turns out to be exactly
the sort of all-things-considered balancing of benefts and
burdens this Court has long rejected. Really, it's little more
than the judicial version of a hunter's stew: Throw in any-
thing that looks interesting, stir, and season to taste. In
another context, this Court has described the sort of deci-
sionmaking on display today as “inherently, and therefore
permanently, unpredictable.” Crawford v. Washington, 541
U. S. 36, 68, n. 10 (2004). Under its terms, “[w]hether a [bur-
den] is deemed [undue] depends heavily on which factors the
judge considers and how much weight he accords each of
them.” Id., at 63.

Cite
as: 591 U. S. 299 (2020)
425
Gorsuch, J., dissenting
What was true there turns out to be no less true here.
The
plurality sides with the district court in concluding that
the time and cost some women might have to endure to ob-
tain an abortion outweighs the benefts of Act 620. Perhaps
the plurality sees that answer as obvious, given its apparent
conclusion that the Act would offer the public no benefts of
any kind. But for its test to provide any helpful guidance,
it must be capable of resolving cases the plurality can't so
easily dismiss. Suppose, for example, a factfnder credited
the State's evidence of medical beneft, fnding that a small
number of women would obtain safer medical care if the law
went into effect. But suppose the same factfnder also cred-
ited a plaintiff 's evidence of burden, fnding that a large num-
ber of women would have to endure longer wait times and
farther drives, and that a very small number of women
would be unable to obtain an abortion at all. How is a judge
supposed to balance, say, a few women's emergency hysterec-
tomies against many women spending extra hours traveling
to a clinic? The plurality's test offers no guidance. Nor can
it. The benefts and burdens are incommensurable, and they
do not teach such things in law school.
When judges take it upon themselves to assess the raw
costs and benefts of a new law or regulation, it can come as
no surprise that “[s]ome courts wind up attaching the same
signifcance to opposite facts,” and even attaching the oppo-
site signifcance to the same facts. Ibid. It can come as
no surprise, either, that judges retreat to their underlying
assumptions or moral intuitions when deciding whether a
burden is undue. For what else is left?
Some judges have thrown up their hands at the task put
to them by the Court in this area. If everything comes
down to balancing costs against benefts, they have observed,
“the only institution that can give an authoritative answer”
is this Court, because the question isn't one of law at all and
the only “balance” that matters is the one this Court strikes.
Planned Parenthood of Ind. & Ky. v. Box, 949 F. 3d 997, 999

426 JUNE
MEDICAL SERVICES L. L. C. v. RUSSO
Gorsuch, J., dissenting
(CA7 2019) (Easterbrook, J., concurring in denial of rehear-
i
ng en banc). The lament is understandable. Missing here
is exactly what judges usually depend on when asked to
make tough calls: an administrable legal rule to follow, a neu-
tral principle, something outside themselves to guide their
decision.
*
Setting aside the other departures from the judicial proc-
ess on display today, the concurrence suggests it can remedy
at least this one. We don't need to resort to a raw balancing
test to resolve today's dispute. A deeper respect for stare
decisis and existing precedents, the concurrence assures us,
supplies the key to a safe way out. Unfortunately, however,
the reality proves more complicated.
Start with the concurrence's discussion of Whole Woman's
Health. Immediately after paying homage to stare decisis,
the concurrence refuses to follow the all-things-considered
balancing test that decision employed when striking down
Texas's admitting privileges law. In the process, the con-
currence rightly recounts many of the problems with raw
balancing tests. But then, switching directions again, the
concurrence insists we are bound by an alternative holding
in Whole Woman's Health. According to the concurrence,
this alternative holding declared that the Texas law imposed
an impermissible “substantial obstacle” to abortion access in
light only of the burdens the law imposed—“independent of
[any] discussion of [the law's] benefts.” Ante, at 354 (Rob-
erts, C. J., concurring in judgment). And, the concurrence
concludes, because the facts of this suit look like those in
Whole Woman's Health, we must fnd an impermissible sub-
stantial obstacle here too.
But in this footwork lie at least two missteps. For one, the
facts of this suit cannot be so neatly reduced to Whole Wom-
an's Health redux. See ante, at 307–310; ante, at 385–387,
390–399 (Alito, J., dissenting). For another, Whole Woman's
Health nowhere issued the alternative holding on which the

Cite
as: 591 U. S. 299 (2020)
427
Gorsuch, J., dissenting
concurrence pins its argument. At no point did the Court
hold
that the burdens imposed by the Texas law alone—di-
vorced from any consideration of the law's benefts—could suf-
fce to establish a substantial obstacle. To the contrary,
Whole Woman's Health insisted that the substantial obstacle
test “requires that courts consider the burdens a law imposes
on abortion access together with the benefts th[e] la[w] con-
fer[s].” 579 U. S., at 607 (emphasis added). And whatever
else respect for stare decisis might suggest, it cannot demand
allegiance to a nonexistent ruling inconsistent with the ap-
proach actually taken by the Court.
The concurrence's fallback argument doesn't solve the
problem either. So what if Whole Woman's Health rejected
the benefts-free version of the “substantial obstacle” test
the concurrence endorses? The concurrence assures us that
Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S.
833 (1992), specifed this form of the test, so we must (or at
least may) do the same, whatever Whole Woman's Health
says.
But here again, the concurrence rests on at least one mis-
taken premise. In the context of laws implicating only the
State's interest in fetal life previability, the Casey plurality
did describe its “undue burden” test as asking whether the
law in question poses a substantial obstacle to abortion ac-
cess. 505 U. S., at 878. But when a State enacts a law “to
further the health or safety of a woman seeking an abortion,”
the Casey plurality added a key qualifcation: Only “[u]nnec-
essary health regulations that have the purpose or effect of
presenting a substantial obstacle to a woman seeking an
abortion impose an undue burden on the right.” Ibid. (em-
phasis added). That qualifcation is clearly applicable here,
yet the concurrence nowhere addresses it, applying instead
a new test of its own creation. In the context of medical
regulations, too, the concurrence's new test might even prove
stricter than strict scrutiny. After all, it's possible for a reg-
ulation to survive strict scrutiny if it is narrowly tailored to

428 JUNE
MEDICAL SERVICES L. L. C. v. RUSSO
Kavanaugh, J., dissenting
advance a compelling state interest. And no one doubts
that
women's health can be such an interest. Yet, under the
concurrence's test it seems possible that even the most com-
pelling and narrowly tailored medical regulation would have
to fail if it placed a substantial obstacle in the way of abor-
tion access. Such a result would appear to create yet an-
other discontinuity with Casey, which expressly disavowed
any test as strict as strict scrutiny. Id., at 871.
*
To arrive at today's result, rules must be brushed aside
and shortcuts taken. While the concurrence parts ways
with the plurality at the last turn, the road both travel leads
us to a strangely open space, unconstrained by many of the
neutral principles that normally govern the judicial process.
The temptation to proceed this direction, closer with each
step toward an unobstructed exercise of will, may be always
with us, a danger inherent in judicial review. But it is an
impulse this Court normally strives mightily to resist.
Today, in a highly politicized and contentious arena, we prove
unwilling, or perhaps unable, to resist that temptation.
Either way, respectfully, it is a sign we have lost our way.
Justice Kavanaugh, dissenting.
I join Parts I, II, and III of Justice Alito's dissent. A
threshold question in this case concerns the proper standard
for evaluating state abortion laws. The Louisiana law at
issue here requires doctors who perform abortions to have
admitting privileges at a hospital within 30 miles of the abor-
tion clinic. The State asks us to assess the law by applying
the undue burden standard of Planned Parenthood of South-
eastern Pa. v. Casey, 505 U. S. 833 (1992).
1
The plaintiffs
ask us to apply the cost-beneft standard of Whole Woman's
Health v. Hellerstedt, 579 U. S. 582 (2016).
1
The State has not asked the Court to depart from the Casey standard.

Cite
as: 591 U. S. 299 (2020)
429
Kavanaugh, J., dissenting
Today, fve Members of the Court reject the Whole Wom-
an's
Health cost-beneft standard. Ante, at 347–354 (Rob-
erts, C. J., concurring in judgment); ante, at 371–377
(Thomas, J., dissenting); ante, at 379–380 (Alito, J., joined
by Thomas, Gorsuch, and Kavanaugh, JJ., dissenting);
ante, at 423–426 (Gorsuch, J., dissenting). A different fve
Members of the Court conclude that Louisiana's admitting-
privileges law is unconstitutional because it “would restrict
women's access to abortion to the same degree as” the Texas
law in Whole Woman's Health. Ante, at 354 (opinion of
Roberts, C. J.); see also ante, at 321–344 (opinion of Breyer,
J., joined by Ginsburg, Sotomayor, and Kagan, JJ.).
I agree with the frst of those two conclusions. But I re-
spectfully dissent from the second because, in my view, addi-
tional factfnding is necessary to properly evaluate Louisi-
ana's law. As Justice Alito thoroughly and carefully
explains, the factual record at this stage of plaintiffs' facial,
pre-enforcement challenge does not adequately demonstrate
that the three relevant doctors (Does 2, 5, and 6) cannot ob-
tain admitting privileges or, therefore, that any of the three
Louisiana abortion clinics would close as a result of the
admitting-privileges law. I expressed the same concern
about the incomplete factual record more than a year ago
during the stay proceedings, and the factual record has not
changed since then. See June Medical Services, L.L.C. v.
Gee, 586 U. S. 1135 (2019) (opinion dissenting from grant of
application for stay). In short, I agree with Justice Alito
that the Court should remand the case for a new trial and
additional factfnding under the appropriate legal standards.
2
2
In my view, the District Court on remand should also address the
State's new argument (raised for the frst time in this Court) that these
doctors and clinics lack third-party standing.

430 OCTOBER
TERM, 2019
Syllabus
AGENCY FOR INTERNATIONAL DEVELOPMENT
et
al. v. ALLIANCE FOR OPEN SOCIETY
INTERNATIONAL, INC., et al.
certiorari to the united states court of appeals for
the second circuit
No. 19–177. Argued May 5, 2020—Decided June 29, 2020
In the United States Leadership Against HIV/AIDS, Tuberculosis, and
Malaria Act of 2003, as relevant here, Congress limited the funding of
American and foreign nongovernmental organizations to those with “a
policy explicitly opposing prostitution and sex traffcking.” 22 U. S. C.
§ 7631(f ). In 2013, that Policy Requirement, as it is known, was held to
be an unconstitutional restraint on free speech when applied to Ameri-
can organizations. Agency for Int'l Development v. Alliance for Open
Society Int'l, Inc., 570 U. S. 205. Those American organizations now
challenge the requirement's constitutionality when applied to their le-
gally distinct foreign affliates. The District Court held that the Gov-
ernment was prohibited from enforcing the requirement against the for-
eign affliates, and the Second Circuit affrmed.
Held: Because plaintiffs' foreign affliates possess no First Amendment
rights, applying the Policy Requirement to them is not unconstitutional.
Two bedrock legal principles lead to this conclusion. As a matter of
American constitutional law, foreign citizens outside U. S. territory do
not possess rights under the U. S. Constitution. See, e. g., Boumediene
v. Bush, 553 U. S. 723, 770–771. And as a matter of American corporate
law, separately incorporated organizations are separate legal units with
distinct legal rights and obligations. See, e. g., Dole Food Co. v. Pat-
rickson, 538 U. S. 468, 474–475. That conclusion corresponds to Con-
gress's historical practice of conditioning funding to foreign organiza-
tions, which helps ensure that U. S. foreign aid serves U. S. interests.
Plaintiffs' counterarguments are unpersuasive. First, they claim that
because a foreign affliate's policy statement may be attributed to them,
American organizations themselves possess a First Amendment right
against the Policy Requirement's imposition on their foreign affliates.
First Amendment cases involving speech misattribution between for-
mally distinct speakers, see, e. g., Hurley v. Irish-American Gay, Les-
bian and Bisexual Group of Boston, Inc., 515 U. S. 557, 574–575, how-
ever, are premised on something missing here: Government compulsion
to associate with another entity. Even protecting the free speech
rights of only those foreign organizations that are closely identifed with
American organizations would deviate from the fundamental principle

Cite
as: 591 U. S. 430 (2020)
431
Opinion of the Court
that foreign organizations operating abroad do not possess rights under
the
U. S. Constitution and enmesh the courts in diffcult line-drawing
exercises. Second, plaintiffs assert that the Court's 2013 decision en-
compassed both American organizations and their foreign affliates.
That decision did not facially invalidate the Act's funding condition, sug-
gest that the First Amendment requires the Government to exempt
plaintiffs' foreign affliates or other foreign organizations from the Pol-
icy Requirement, or purport to override longstanding constitutional law
and corporate law principles. Pp. 433–440.
911 F. 3d 104, reversed.
Kavanaugh, J., delivered the opinion of the Court, in which Roberts,
C. J., and Thomas, Alito, and Gorsuch, JJ., joined. Thomas, J., fled a
concurring opinion, post, p. 440. Breyer, J., fled a dissenting opinion, in
which Ginsburg and Sotomayor, JJ., joined, post, p. 441. Kagan, J.,
took no part in the consideration or decision of the case.
Christopher G. Michel argued the cause for petitioners.
With him on the briefs were Solicitor General Francisco,
Assistant Attorney General Hunt, Deputy Solicitor General
Kneedler, Benjamin H. Torrance, and Sharon Swingle.
David W. Bowker argued the cause for respondents.
With him on the brief were Catherine M. A. Carroll, David
A. Stoopler, Kevin M. Lamb, Alex Hemmer, and Emily J.
Barnet.*
Justice Kavanaugh delivered the opinion of the Court.
In 2003, Congress passed and President George W. Bush
signed the United States Leadership Against HIV/AIDS,
*Jay Alan Sekulow, Stuart J. Roth, Colby M. May, and Walter M. Weber
fled a brief for the American Center for Law and Justice as amicus curiae
urging reversal.
Briefs of amici curiae urging affrmance were fled for Adventist Devel-
opment and Relief Agency International by Eugene Volokh, Andrew L.
Frey, and Cleland B. Welton II; for the Cato Institute by Megan L. Brown,
Scott B. Wilkens, and Ilya Shapiro; for Current and Former Members of
Congress by Carter G. Phillips and Tobias S. Loss-Eaton; for Professors
of Public Health et al. by Jessica Ring Amunson; and for the Washington
Legal Foundation by Douglas W. Dunham, Cory L. Andrews, and Corbin
K. Barthold.

432 A
GENCY FOR INT'L DEVELOPMENT v. ALLIANCE
FOR OPEN SOCIETY INT'L, INC.
Opinion of the Court
Tuberculosis, and Malaria Act, known as the Leadership Act.
117
Stat. 711, as amended, 22 U. S. C. § 7601 et seq. Aiming
to enhance America's response to the ravages of the global
HIV/AIDS crisis, the Leadership Act launched “the largest
international public health program of its kind ever created.”
§ 7601(29). The Act has helped save an estimated 17 million
lives, primarily in Africa, and is widely viewed as the most
successful American foreign aid program since the Marshall
Plan.
To advance the global relief effort, Congress has allocated
billions of dollars to American and foreign nongovernmental
organizations that combat HIV/AIDS abroad. As relevant
here, Congress sought to fund only those organizations that
have, or agree to have, a “policy explicitly opposing prostitu-
tion and sex traffcking.” § 7631(f ); see also § 7631(e); 45
CFR § 89.1 (2019). Congress imposed that condition on
funding, known as the Policy Requirement, because Con-
gress found that prostitution and sex traffcking “are addi-
tional causes of and factors in the spread of the HIV/AIDS
epidemic” and that prostitution and sex traffcking “are de-
grading to women and children.” § 7601(23).
Plaintiffs are American nongovernmental organizations
that receive Leadersh ip Ac t funds to fight HIV/AIDS
abroad. Plaintiffs have long maintained that they do not
want to express their agreement with the American commit-
ment to eradicating prostitution. Plaintiffs consider a public
stance of neutrality toward prostitution more helpful to their
sensitive work in some parts of the world and also to their
full participation in the global efforts to prevent HIV/AIDS.
After enactment of the Leadership Act, plaintiffs chal-
lenged the Policy Requirement, alleging that it violated the
First Amendment. In 2013, this Court agreed, concluding
that the Policy Requirement ran afoul of the free speech
principle that the Government “may not deny a beneft to
a person on a basis that infringes his constitutionally pro-

Cite
as: 591 U. S. 430 (2020)
433
Opinion of the Court
tected . . . freedom of speech.” Agency for Int'l Develop-
men
t v. Alliance for Open Society Int'l, Inc., 570 U. S. 205,
214 (2013) (internal quotation marks omitted). Therefore,
the Policy Requirement no longer applies to American orga-
nizations that receive Leadership Act funds, meaning that
American organizations can obtain Leadership Act funds
even if they do not have a policy explicitly opposing prostitu-
tion and sex traffcking.
But as has been the case since 2003, foreign organizations
that receive Leadership Act funds remain subject to the Pol-
icy Requirement and still must have a policy explicitly oppos-
ing prostitution and sex traffcking. Following this Court's
2013 decision barring the Government from enforcing the
Policy Requirement against American organizations, plain-
tiffs returned to court, invoking the First Amendment and
seeking to bar the Government from enforcing the Policy
Requirement against plaintiffs' legally distinct foreign af-
fliates. The U. S. District Court for the Southern District
of New York agreed with plaintiffs and prohibited the Gov-
ernment from enforcing the Policy Requirement against
plaintiffs' foreign affliates. The U. S. Court of Appeals for
the Second Circuit affrmed. Judge Straub dissented. He
described as “startling ” the proposition that the First
Amendment could extend to foreign organizations operating
abroad. 911 F. 3d 104, 112 (2018). The Second Circuit's de-
cision was stayed pending this Court's review, meaning that
foreign organizations currently remain subject to the Policy
Requirement.
We granted certiorari, 589 U. S. 1119 (2019), and now re-
verse the judgment of the Second Circuit. Plaintiffs' posi-
tion runs headlong into two bedrock principles of American
law.
First, it is long settled as a matter of American constitu-
tional law that foreign citizens outside U. S. territory do not
possess rights under the U. S. Constitution. Plaintiffs do

434 A
GENCY FOR INT'L DEVELOPMENT v. ALLIANCE
FOR OPEN SOCIETY INT'L, INC.
Opinion of the Court
not dispute that fundamental principle. Tr. of Oral Arg. 58–
59;
see, e. g., Boumediene v. Bush, 553 U. S. 723, 770–771
(2008); Hamdi v. Rumsfeld, 542 U. S. 507, 558–559 (2004)
(Scalia, J., dissenting); United States v. Verdugo-Urquidez,
494 U. S. 259, 265–275 (1990); Johnson v. Eisentrager, 339
U. S. 763, 784 (1950); United States ex rel. Turner v. Wil-
liams, 194 U. S. 279, 292 (1904); U. S. Const., Preamble.
As the Court has recognized, foreign citizens in the United
States may enjoy certain constitutional rights—to take just
one example, the right to due process in a criminal trial.
See, e. g., Verdugo-Urquidez, 494 U. S., at 270–271; Plyler v.
Doe, 457 U. S. 202, 210–213 (1982); Kwong Hai Chew v. Cold-
ing, 344 U. S. 590, 596 (1953); Bridges v. Wixon, 326 U. S.
135, 148 (1945); Yick Wo v. Hopkins, 118 U. S. 356, 369 (1886);
cf. Bluman v. Federal Election Comm'n, 800 F. Supp. 2d 281,
286–289 (DC 2011), aff 'd, 565 U. S. 1104 (2012). And so too,
the Court has ruled that, under some circumstances, foreign
citizens in the U. S. Territories—or in “a territory” under the
“indefnite” and “complete and total control” and “within the
constant jurisdiction” of the United States—may possess
certain constitutional rights. Boumediene, 553 U. S., at
755–771. But the Court has not allowed foreign citizens
outside the United States or such U. S. territory to assert
rights under the U. S. Constitution. If the rule were other-
wise, actions by American military, intelligence, and law en-
forcement personnel against foreign organizations or foreign
citizens in foreign countries would be constrained by the for-
eign citizens' purported rights under the U. S. Constitution.
That has never been the law. See Verdugo-Urquidez, 494
U. S., at 273–274; Eisentrager, 339 U. S., at 784.* To be
*As Justice Jackson stated for the Court in Eisentrager:
“If the Fifth Amendment confers its rights on all the world . . . , the
same must be true of the companion civil-rights Amendments, for none of
them is limited by its express terms, territorially or as to persons. Such
a construction would mean that during military occupation irreconcilable
enemy elements, guerrilla fghters, and `werewolves' could require the

Cite
as: 591 U. S. 430 (2020)
435
Opinion of the Court
sure, Congress may seek to enact laws that afford foreign
citi
zens abroad statutory rights or causes of action against
misconduct by U. S. Government offcials, or laws that other-
wise regulate the conduct of U. S. offcials abroad. See
Verdugo-Urquidez, 494 U. S., at 275; cf. 10 U. S. C. §§ 2734(a),
2734a(a); 18 U. S. C. § 2340A; 21 U. S. C. § 904; 22 U. S. C.
§§ 2669, 2669–1; 42 U. S. C. § 2000dd; but see 28 U. S. C.
§ 2680(k) (Federal Tort Claims Act's exception for torts “aris-
ing in a foreign country”). Plaintiffs did not raise any such
statutory claim in this case.
Second, it is long settled as a matter of American corpo-
rate law that separately incorporated organizations are sepa-
rate legal units with distinct legal rights and obligations.
See Dole Food Co. v. Patrickson, 538 U. S. 468, 474–475
(2003); Cedric Kushner Promotions, Ltd. v. King, 533 U. S.
158, 163 (2001); P. Blumberg, K. Strasser, N. Georgako-
poulos, & E. Gouvin, Corporate Groups §§ 6.01, 6.02, 6.05
(2020 Supp.).
Plaintiffs' foreign affliates were incorporated in other
countries and are legally separate from plaintiffs' American
organizations. Even though the foreign organizations have
affliated with the American organizations, the foreign orga-
nizations remain legally distinct from the American organi-
zations. Plaintiffs do not ask this Court to pierce the corpo-
rate veil, nor do they invoke any other relevant exception to
American Judiciary to assure them freedoms of speech, press, and assem-
bly as in the First Amendment, right to bear arms as in the Second, secu-
rity against `unreasonable' searches and seizures as in the Fourth, as well
as rights to jury trial as in the Fifth and Sixth Amendments.
“Such extraterritorial application of organic law would have been so
signifcant an innovation in the practice of governments that, if intended
or apprehended, it could scarcely have failed to excite contemporary com-
ment. Not one word can be cited. No decision of this Court supports
such a view. Cf. Downes v. Bidwell, 182 U. S. 244. None of the learned
commentators on our Constitution has even hinted at it.” 339 U. S., at
784–785.

436 A
GENCY FOR INT'L DEVELOPMENT v. ALLIANCE
FOR OPEN SOCIETY INT'L, INC.
Opinion of the Court
that fundamenta l cor porate law pr i nciple. Tr. of Ora l
Arg
. 54.
Those two bedrock principles of American constitutional
law and American corporate law together lead to a simple
conclusion: As foreign organizations operating abroad, plain-
tiffs' foreign affliates possess no rights under the First
Amendment.
That conclusion corresponds to historical practice regard-
ing American foreign aid. The United States supplies more
foreign aid than any other nation in the world. Cong. Re-
search Serv., Foreign Assistance: An Introduction to U. S.
Programs and Policy (2020) (Summary). Acting with the
President in the legislative process, Congress sometimes im-
poses conditions on foreign aid. See 22 U. S. C. §§ 2271,
2272, 2371, 7110(g)(2). Congress may condition funding on
a foreign organization's ideological commitments—for exam-
ple, pro-democracy, pro-women's rights, anti-terrorism, pro-
religious freedom, anti-sex traffcking, or the like. Doing so
helps ensure that U. S. foreign aid serves U. S. interests.
By contrast, plaintiffs' approach would throw a constitutional
wrench into American foreign policy. In particular, plain-
tiffs' approach would put Congress in the untenable position
of either cutting off certain funding programs altogether, or
instead funding foreign organizations that may not align
with U. S. values. We see no constitutional justifcation
for the Federal Judiciary to interfere in that fashion with
Amer ican foreig n pol icy and Amer ican aid to foreig n
organizations.
In short, plaintiffs' foreign affliates are foreign organiza-
tions, and foreign organizations operating abroad have no
First Amendment rights.
To overcome that conclusion, plaintiffs advance two main
arguments. But neither persuades us.
First, plaintiffs theorize that the foreign affliates' re-
quired statement of policy against prostitution and sex traf-

Cite
as: 591 U. S. 430 (2020)
437
Opinion of the Court
fcking may be incorrectly attributed to the American orga-
ni
zations. Therefore, the theory goes, the American organi-
zations themselves possess a First Amendment right against
i mpositi on of the Pol icy Requirement on their foreig n
affliates.
As support, plaintiffs point to First Amendment cases in-
volving speech misattribution between formally distinct
speakers. See, e. g., Hurley v. Irish-American Gay, Les-
bian and Bisexual Group of Boston, Inc., 515 U. S. 557, 574–
575 (1995); Pacifc Gas & Elec. Co. v. Public Util. Comm'n of
Cal., 475 U. S. 1, 15 (1986) (plurality opinion); cf. PruneYard
Shopping Center v. Robins, 447 U. S. 74, 87 (1980). But the
constitutional issue in those cases arose because the State
forced one speaker to host another speaker's speech. See
Hurley, 515 U. S., at 572–573; Pacifc Gas, 475 U. S., at 15;
cf. PruneYard, 447 U. S., at 85, 87. Here, by contrast, the
United States is not forcing plaintiffs to affliate with foreign
organizations. Plaintiffs are free to choose whether to affl-
iate with foreign organizations and are free to disclaim
agreement with the foreign affliates' required statement of
policy. Any alleged misattribution in this case and any ef-
fect on the American organizations' message of neutrality
toward prostitution stems from their choice to affliate with
foreign organizations, not from U. S. Government compul-
sion. Because the First Amendment misattribution cases
are premised on government compulsion to associate with
another entity, those cases do not apply here.
In support of their misattribution argument, plaintiffs also
cite Regan v. Taxation With Representation of Wash., 461
U. S. 540, 544–545, and n. 6 (1983). But as relevant here,
that case simply explained that a speech restriction on a cor-
porate entity did not prevent a separate affliate from speak-
ing, a point that is not disputed in this case.
We appreciate that plaintiffs would prefer to affliate with
foreign organizations that do not oppose prostitution. But

438 A
GENCY FOR INT'L DEVELOPMENT v. ALLIANCE
FOR OPEN SOCIETY INT'L, INC.
Opinion of the Court
Congress required foreign organizations to oppose prostitu-
ti
on in return for American funding. And plaintiffs cannot
export their own First Amendment rights to shield foreign
organizations from Congress's funding conditions.
Stressing that their position is limited, plaintiffs empha-
size that the Court could narrowly decide to protect the free
speech rights of only those foreign organizations that are
closely identifed with American organizations—for exam-
ple, those foreign affliates that share similar names, logos,
and brands with American organizations. According to
plaintiffs, those “closely identifed” scenarios greatly in-
crease the risk of misattribution. But again, the First
Amendment cases involving speech misattribution arose
when the State forced one speaker to host another speaker's
speech. No compulsion is present here. Moreover, plain-
tiffs' proposed line-drawing among foreign organizations
would blur a clear rule of American law: Foreign organiza-
tions operating abroad do not possess rights under the U. S.
Constitution. Plaintiffs' carve-out not only would deviate
from that fundamental principle, but also would enmesh the
courts in diffcult line-drawing exercises—how closely identi-
fed is close enough?—and leave courts without any princi-
pled basis for making those judgments. We discern no good
reason to invent a new and legally unmoored exception to
longstanding principles of American constitutional and cor-
porate law.
Second, plaintiffs argue that the Court's 2013 decision in
this case encompassed both plaintiffs' American organiza-
tions and their foreign affliates, meaning that, in plaintiffs'
view, the Court has already resolved the issue before us.
That is not correct. The plaintiffs in the 2013 case were
these same American organizations. It is true that the
Court considered the possibility that an American organiza-
tion could work through affliates to potentially avoid the
burdens of the otherwise-unconstitutional application of the

Cite
as: 591 U. S. 430 (2020)
439
Opinion of the Court
Policy Requirement. But the Court rejected that alterna-
tive
, which in essence would have compelled the American
organizations to affliate with other organizations. The
Court instead ruled that the Policy Requirement may not
be applied to plaintiffs' American organizations. Therefore,
plaintiffs' current affliations with foreign organizations are
their own choice, not the result of any U. S. Government
compulsion.
Stated simply, in the prior decision, the Court did not fa-
cially invalidate the Act's condition on funding. The Court
did not hold or suggest that the First Amendment requires
the Government to exempt plaintiffs' foreign affliates or
other foreign organizations from the Policy Requirement.
And the Court did not purport to override the longstanding
constitutional law principle that foreign organizations oper-
ating abroad do not possess constitutional rights, or the ele-
mentary corporate law principle that each corporation is a
separate legal unit.
The dissent emphasizes that this case concerns “the First
Amendment rights of American organizations.” Post, at 441
(opinion of Breyer, J.). We respectfully disagree with that
characterization of the question presented. The Court's
prior decision recognized the First Amendment rights of
American organizations and held that American organiza-
tions do not have to comply with the Policy Requirement.
This case instead concerns foreign organizations that are vol-
untarily affliated with American organizations. Those for-
eign organizations are legally separate from the American
organizations. And because foreign organizations operating
abroad do not possess constitutional rights, those foreign
organizations do not have a First Amendment right to disre-
gard the Policy Requirement.
In sum, plaintiffs' foreign affliates are foreign organi-
zations, and foreign organizations operating abroad pos-
sess no rights under the U. S. Constitution. We reverse the

440 A
GENCY FOR INT'L DEVELOPMENT v. ALLIANCE
FOR OPEN SOCIETY INT'L, INC.
Thomas, J., concurring
judgment of the U. S. Court of Appeals for the Second
Circuit.
It
is so ordered.
Justice Kagan took no part in the consideration or deci-
sion of this case.
Justice Thomas, concurring.
I agree with the Court that the Policy Requirement does
not violate the First Amendment as applied to respondents'
foreign affliates, and I agree that nothing about this Court's
decision in Agency for Int'l Development v. Alliance for
Open Society Int'l, Inc., 570 U. S. 205 (2013) (AOSI I ), sug-
gests otherwise. See ante, at 439. I write separately to
note my continued disagreement with AOSI I and to explain
that the Policy Requirement does not violate the First
Amendment for a far simpler reason: It does not compel any-
one to say anything.
In AOSI I, the Court erred by holding that the Policy Re-
quirement violated respondents' First Amendment rights
by conditioning their receipt of Leadership Act* funds on
the affrmation of certain program objectives. “The First
Amendment does not mandate a viewpoint-neutral govern-
ment.” AOSI I, 570 U. S., at 221 (Scalia, J., joined by
Thomas, J., dissenting). Thus, the Government may require
those who seek to carry out federally funded programs to
support the Government's objectives with regard to those
programs. Ibid. After all, the Constitution itself “im-
pos[es] affrmative ideological commitments prerequisite to
assisting in the government's work.” Id., at 227. It ex-
cludes viewpoints such as communism and anarchism, stating
that those engaged in government work must swear an oath
*As the Court explains, the United States Leadership Against HIV/
AIDS, Tuberculosis, and Malaria Act of 2003 (Leadership Act), 22 U. S. C.
§ 7601 et seq., “allocate[s] billions of dollars to American and foreign non-
governmental organizations that combat HIV/AIDS abroad.” Ante, at 432.

Cite
as: 591 U. S. 430 (2020)
441
Breyer, J., dissenting
to support our Constitution's republican form of government.
See
Art. VI, cl. 3.
Moreover, the mere conditioning of funds on “ `the affr-
mation of a belief ' ” tied to the purpose of a government pro-
gram involves “no compulsion at all.” AOSI I, 570 U. S.,
at 226 (Scalia, J., joined by Thomas, J., dissenting). Such a
condition is “the reasonable price of admission to a limited
government-spending program that each organization re-
mains free to accept or reject.” Ibid. Just as respondents
are not compelled to associate with their foreign affliates,
see ante, at 436–438, they are not compelled to participate
in the Leadership Act program.
The Policy Requirement does not violate the First Amend-
ment, regardless of whether it is applied to respondents,
respondents' legally distinct foreign affliates, or any other
organization, foreign or domestic. Because the Court prop-
erly rejects respondents' attempt to extend our erroneous
precedent, I join its opinion in full.
Justice Breyer, with whom Justice Ginsburg and Jus-
tice Sotomayor join, dissenting.
The Court, in my view, asks the wrong question and gives
the wrong answer. This case is not about the First Amend-
ment rights of foreign organizations. It is about—and has
always been about—the First Amendment rights of Ameri-
can organizations.
The last time this case came before us, those American
organizations vindicated their constitutional right to speak
freely, both at home and abroad. In Agency for Int'l Devel-
opment v. Alliance for Open Society Int'l, Inc., 570 U. S. 205
(2013) (AOSI I ), we held that the First Amendment forbids
the Government from distorting their speech by requiring,
as a condition of receiving federal funds, that they “pledge
allegiance” to a state-sponsored message. Id., at 220.
This time, the question is whether the American organi-
zations enjoy that same constitutional protection against

442 A
GENCY FOR INT'L DEVELOPMENT v. ALLIANCE
FOR OPEN SOCIETY INT'L, INC.
Breyer, J., dissenting
government-compelled distortion when they speak through
clear
ly identifed affliates that have been incorporated over-
seas. The answer to that question, as I see it, is yes. I dis-
sent from the Court's contrary conclusion.
I
To understand the issue now before us, one must appreci-
ate how it got here. Given this litigation's lengthy history,
that requires a rather detailed look at why this dispute frst
arose, what we decided in our prior decision (namely,
AOSI I ), and where the case proceeded from there.
A
As we explained in AOSI I, the plaintiffs in this action
(respondents in this Court then and now) “are a group of
domestic organizations engaged in combating HIV/AIDS
overseas.” Id., at 210. Their lifesaving work spans multi-
ple continents. Id., at 211. For example, respondents run
“programs aimed at limiting injection drug use in Uzbeki-
stan, Tajikistan, and Kyrgyzstan, preventing mother-to-child
HIV transmission in Kenya, and promoting safer sex prac-
tices in India.” Ibid. Respondents also counsel high-risk
populations such as sex workers, encourage foreign govern-
ments to adopt benefcial public policies, and share informa-
tion about best practices in publications and at conferences.
See ibid.; App. 171, 217, 222, 419. To support these interna-
tional efforts, respondents must make fundraising appeals to
donors worldwide. See, e. g., id., at 366, 384, 431–433, 457.
But crucially for both their mission and for this case, re-
spondents also “receive billions [of dollars] annually in fnan-
cial assistance from the United States.” AOSI I, 570 U. S.,
at 210.
One of respondents' primary sources of federal funding is
the United States Leadership Against HIV/AIDS, Tubercu-
losis, and Malaria Act of 2003. 117 Stat. 711, as amended,
22 U. S. C. § 7601 et seq. (Leadership Act). Congress en-

Cite
as: 591 U. S. 430 (2020)
443
Breyer, J., dissenting
acted the Leadership Act with the goal of creating “a `com-
p
rehensive, i ntegrated' strateg y to combat HIV/AIDS
around the world.” AOSI I, 570 U. S., at 209 (quoting
§ 7611(a)). To that end, the statute allocates considerable
federal dollars to nongovernmental organizations fghting
HIV/AIDS abroad. Id., at 209–211.
But Leadership Act funding comes with strings attached.
Two, in particular. First, no Leadership Act funds “ `may
be used to promote or advocate the legalization or practice
of prostitution or sex traffcking.' ” Id., at 210 (quoting
§ 7631(e)). Second, with some exceptions not relevant here,
any recipient of Leadership Act funds must have “ `a policy
explicitly opposing prostitution and sex traffcking.' ” Id.,
at 210 (quoting § 7631(f )). The frst condition limiting how
Leadership Act funds may be spent has never been chal-
lenged in this litigation. Id., at 210. What has driven this
decades-long dispute is the second condition, the “Policy Re-
quirement” that requires recipients to espouse a government
message. Ibid.
Concerned that “adopting a policy explicitly opposing
prostitution” could “alienate certain host governments” and
“mak[e] it more diffcult to work with prostitutes in the fght
against HIV/AIDS,” respondents sued. Id., at 211. They
asserted that the Policy Requirement put an unconstitu-
tional condition on the receipt of federal funds and was thus
unenforceable. Id., at 212. Accordingly, as the case came
to us in AOSI I, the question was whether this funding condi-
tion violated respondents' First Amendment rights. Id.,
at 211.
B
The answer, we held in AOSI I, was yes. Our reasoning
then demands close inspection now.
To begin, we observed in AOSI I that “the Policy Require-
ment would plainly violate the First Amendment” if it
operated “as a direct regulation of speech.” Id., at 213.
Commanding someone to speak a government message

444 A
GENCY FOR INT'L DEVELOPMENT v. ALLIANCE
FOR OPEN SOCIETY INT'L, INC.
Breyer, J., dissenting
contravenes the “basic First Amendment principle that `free-
dom
of speech prohibits the government from telling people
what they must say.' ” Ibid. (quoting Rumsfeld v. Forum
for Academic and Institutional Rights, Inc., 547 U. S. 47, 61
(2006) (FAIR)); see also, e. g., West Virginia Bd. of Ed. v.
Barnette, 319 U. S. 624, 642 (1943); Wooley v. Maynard, 430
U. S. 705, 717 (1977).
That the Policy Requirement is a funding condition, rather
than a direct command, complicated the analysis in AOSI I
but did not change the outcome. True, Congress' Article I
spending power “includes the authority to impose limits on
the use of [federal] funds to ensure they are used” as “Con-
gress intends,” even conditions that “may affect the recipi-
ent's exercise of its First Amendment rights.” AOSI I, 570
U. S., at 213–214. That is all the frst (and unchallenged)
Leadership Act condition does by forbidding federal funds
from being used to promote prostitution or sex traffcking.
See id., at 217–218. Congress may not, however, “leverage
funding to regulate speech outside the contours” of the pro-
gram it has chosen to subsidize. Id., at 214–215. That, as
we will see, is what the Policy Requirement does—and why
we held in AOSI I that this second condition violated re-
spondents' First Amendment rights.
The constitutional line is whether a funding condition
helps “specify the activities Congress wants to subsidize” or
instead seeks to “reach [speech] outside” the federal pro-
gram. Id., at 214, 217. We recognized in AOSI I that this
line “is not always self-evident.” Id., at 217. To “hel[p] il-
lustrate the distinction,” our decision gave two examples
from our precedents. Id., at 215.
As an example of what the Government may not do, we
pointed to our decision FCC v. League of Women Voters of
Cal., 468 U. S. 364 (1984). There, the Government required
noncommercial broadcasters receiving federal fnancial as-
sistance to refrain from editorializing entirely; they could not
even “establish [an] `affliate' organizatio[n]” to editorialize

Cite
as: 591 U. S. 430 (2020)
445
Breyer, J., dissenting
on their behalf “with nonfederal funds.” Id., at 400. By
g
iving a broadcaster no way “to make known its views on
matters of public importance,” the funding condition in
League of Women Voters violated the First Amendment.
Id., at 400–401. That condition, as we put it in AOSI I,
“went beyond” ensuring that federal funds did not subsidize
the broadcasters' editorial content and therefore distorted
their “speech outside the scope of the program.” 570 U. S.,
at 216.
Just the opposite was true in Regan v. Taxation With Rep-
resentation of Wash., 461 U. S. 540 (1983), the case we cited
in AOSI I as an example of what the Government may do.
In Regan, a nonproft group received tax-exempt status as a
§ 501(c)(3) organization on the condition that the organization
not engage in lobbying. AOSI I, 570 U. S., at 215 (citing
Regan, 461 U. S., at 544). Even though this condition on fed-
eral fnancial assistance affected the nonproft's exercise of
First Amendment rights, the condition was constitutional be-
cause it “did not prohibit [the nonproft] from lobbying Con-
gress altogether.” 570 U. S., at 215.
Specifcally, the nonproft in Regan—unlike the broadcast-
ers in League of Women Voters—was permitted to establish
an affliate to carry on its lobbying activities as a § 501(c)(4)
organization. AOSI I, 570 U. S., at 215 (citing Regan, 461
U. S., at 544). The nonproft could thus act (and speak)
through two corporate entities: The § 501(c)(3) organization
could get the tax exemption (but not lobby), while the
§ 501(c)(4) organization could lobby (but not get the tax ex-
emption). 570 U. S., at 215. Since requiring the nonproft
to adopt this “ `dual structure' ” was not “ `unduly burden-
some,' ” the condition in Regan “did not deny the [nonproft]
a government beneft `on account of its intention to lobby.' ”
570 U. S., at 215 (quoting Regan, 461 U. S., at 545, and n. 6).
The condition was thus constitutional, even though it essen-
tially compelled the nonproft to affliate with other organiza-
tions. See 570 U. S., at 215.

446 A
GENCY FOR INT'L DEVELOPMENT v. ALLIANCE
FOR OPEN SOCIETY INT'L, INC.
Breyer, J., dissenting
In AOSI I, we held “that the Policy Requirement falls on
the
unconstitutional side of the line” separating League of
Women Voters (unconstitutional) and Regan (constitutional).
570 U. S., at 217. Like the funding condition in League of
Women Voters, we explained, the Policy Requirement affects
protected speech outside the scope of the federal program.
570 U. S., at 218. “By requiring recipients to profess a spe-
cifc belief,” it “goes beyond defning ” the program “to defn-
ing the recipient” in the eyes of their global audience. Ibid.
Respondents cannot “avow [a] belief dictated by” the Gov-
ernment “when spending Leadership Act funds, and then
turn around and assert a contrary belief, or claim neutrality,”
when acting on their “own time and dime.” Ibid. The Pol-
icy Requirement thus conditioned funding on an across-the-
board distortion of respondents' message. See ibid.
We further explained in AOSI I—and this is critical—why
we could not accept the Government's suggestion that the
case was just a redux of Regan. In AOSI I, the Government
suggested a similar “dual-structure” solution to the First
Amendment problem. Like the nonproft in Regan, the
Gover nment noted, respondents cou ld ac t (and speak)
through two corporate entities: One organization could re-
ceive Leadership Act funds on respondents' behalf (and com-
ply with the Policy Requirement), while a legally separate
affliate could communicate respondents' preferred message
(and not receive Leadership Act funds)—or vice versa.
AOSI I, 570 U. S., at 219. True enough. But we rejected
the Government's argument all the same.
Why did we reject it? Because corporate formalities do
nothing to ward off speech distortion where—like AOSI I,
but unlike Regan—the Government has required a speaker
to “espouse a specifc belief as its own.” 570 U. S., at 219.
“If the affliate is distinct from the recipient,” we reasoned,
“the arrangement does not afford a means for the recipient
to express its beliefs.” Ibid. And if “the affliate is more
clearly identifed with the recipient, the recipient can express

Cite
as: 591 U. S. 430 (2020)
447
Breyer, J., dissenting
those beliefs only at the price of evident hypocrisy.” Ibid.
W
ith respect to the latter situation, in other words, compel-
ling a recipient to disavow a message involuntarily uttered
by its clearly identifed affliate is forced hypocrisy, not free
speech. See ibid.
In sum, the Policy Requirement conditioned federal funds
on an unavoidable and irreversible distortion of respondents'
protected speech. We therefore held in AOSI I that the Pol-
icy Requirement “violates the First Amendment and cannot
be sustained.” Id., at 221.
C
On remand from our decision, the District Court did what
district courts ought to do. It “tailor[ed] `the scope of the
remedy' to ft `the nature and extent of the constitutional
violation' ” that we identifed in AOSI I. Hills v. Gau-
treaux, 425 U. S. 284, 294 (1976) (quoting Milliken v. Bradley,
418 U. S. 717, 744 (1974)).
The District Court, like our Court, recognized that re-
spondents' work—and with it their protected speech—has a
global reach. But respondents, it turns out, use different
organizational structures to deliver services in different
places. 106 F. Supp. 3d 355, 360–361 (SDNY 2015). Some-
times, particularly when foreign governments (or our own
government) require, respondents operate through legally
separate affliates incorporated abroad. Ibid.; see also, e. g.,
App. 368, 373–375.
In the District Court's view, those corporate formalities
did not meaningfully change the First Amendment calculus.
See 106 F. Supp. 3d, at 360–361. Respondents, together with
their affliates, convey a clear, consistent message to high-
risk populations, government offcials, healthcare profession-
als, prospective employees, and private donors across the
globe. See, e. g., App. 370–371, 391, 460–461. They share
the same name, logo, and branding—all of which use identical
colors, fonts, and imagery. See, e. g., id., at 445–455. They
adhere to shared values, work towards common goals, and

448 A
GENCY FOR INT'L DEVELOPMENT v. ALLIANCE
FOR OPEN SOCIETY INT'L, INC.
Breyer, J., dissenting
coordinate their collective message. See, e. g., id., at 385–
386,
404–429. To an outside observer, respondents and their
affliates are a single, cohesive unit. They speak as one.
The District Court consequently concluded that imposing
the Policy Requirement on respondents' affliates—wherever
they happen to have been incorporated—would force re-
spondents to “expres[s] contrary positions on the same mat-
ter through [their] different organizational components.”
106 F. Supp. 3d, at 361. To prevent that from happening,
and in keeping with the principles we set forth in AOSI I,
the District Court enjoined enforcement of the Policy Re-
quirement against respondents and their clearly identifed
affliates, including affliates that were incorporated over-
seas. Id., at 363. The District Court thought that remedial
order necessary to protect respondents' own First Amend-
ment rights—rights that, as American organizations, re-
spondents unquestionably have. Id., at 361.
The Court of Appeals understood the District Court's
order that way, too. “The narrow issue before” us, the
Court of Appeals explained, “is whether applying the Policy
Requirement to [respondents'] closely aligned foreign affli-
ates violates [respondents'] own First Amendment rights.”
911 F. 3d 104, 109 (CA2 2018). The Court of Appeals held
that the answer was yes and affrmed on that basis. Ibid.
We granted certiorari to review the Court of Appeals'
decision.
II
The road has been long, but we have arrived at the specifc
question now before us: whether enforcing the Policy Re-
quirement against respondents' clearly identifed foreign af-
fliates violates respondents' own First Amendment rights.
Like the District Court and the Court of Appeals, I believe
the answer is yes.
Our reasoning in AOSI I, along with the body of precedent
on which it relied, should decide this case. Just as com-

Cite
as: 591 U. S. 430 (2020)
449
Breyer, J., dissenting
pelling a clearly identifed domestic affliate to espouse a
gover
nment message distorts respondents' own protected
speech, AOSI I, 570 U. S., at 219, so too does compelling a
clearly identifed foreign affliate to espouse the same gov-
ernment message. Either way, federal funding conditioned
on that affrmative avowal of belief comes at an unconstitu-
tionally high “price of evident hypocrisy.” Ibid.
Properly understood, our speech-misattribution cases—in
particular Hurley v. Irish-American Gay, Lesbian and Bi-
sexual Group of Boston, Inc., 515 U. S. 557 (1995)—confrm
that commonsense conclusion. Any other result would un-
dermine First Amendment protections for the countless
American speakers who address audiences overseas.
A
Respondents should prevail here for the same reasons they
prevailed in AOSI I. When respondents speak through le-
gally separate but clearly identifed affliates, we held, that
speech is attributed to respondents for First Amendment
purposes. AOSI I, 570 U. S., at 219. So when the Govern-
ment demands as a condition of federal funding that their
clearly identifed affliate “espouse a specifc belief as its
own,” respondents may express a contrary view through
some other corporate channel only on pain of appearing hyp-
ocritical. Ibid. Leveraging Congress' Article I spending
power to distort respondents' protected speech in this way
therefore violates respondents' First Amendment rights—
whatever else might be said about the affliate's own First
Amendment rights (or asserted lack thereof ). Ibid.
These principles apply with full force to the dispute now
before us. Respondents and their affliates receive federal
funding to fght HIV/AIDS overseas. What has been at
stake in this case from the beginning, then, is protected
speech often aimed at audiences abroad. Our decision
in AOSI I shielded respondents' global message from
government-compelled distortion in the eyes of those foreign

450 A
GENCY FOR INT'L DEVELOPMENT v. ALLIANCE
FOR OPEN SOCIETY INT'L, INC.
Breyer, J., dissenting
audiences, as well as listeners here at home. Ibid. Yet in
the
wake of our ruling, respondents have continued to suffer
that exact same First Amendment harm.
True, respondents' international mission sometimes re-
quires that they convey their message through affliates in-
corporated in far-off countries, rather than registered here
at home. But so what? Audiences everywhere attribute
speech based on whom they perceive to be speaking, not on
corporate paperwork they will never see. What mattered
in AOSI I was thus how “clearly identifed” the affliates
were with respondents, not the fact that the affliates were
incorporated as separate legal entities. Ibid. And what
matters now is once again how “clearly identifed” the affli-
ates are with respondents, not the fact that the affliates
were incorporated as foreign legal entities.
The First Amendment question therefore hinges, as it did
before, on what an objective observer sees, hears, and under-
stands when respondents speak through their foreign affli-
ates. As to that, not even the Government meaningfully
disputes that respondents and their foreign affliates are
clearly identifed with one another. Their appearances are
the same. Their goals are the same. Their values are the
same. Their message is the same. Leveraging Congress'
spending power to demand speech from respondents' foreign
affliates distorts that shared message—and violates re-
spondents' First Amendment rights. So while respondents
and their clearly identifed foreign affliates may be techni-
cally different entities with respect to such matters as con-
tracts, taxes, and torts, they are constitutionally the same
speaker when it comes to the protected speech at issue in
this case.
This two-entities-one-speaker principle is an established
part of our First Amendment jurisprudence. Take Regan.
To refresh, in that case we upheld a ban on engaging in cer-
tain protected speech (lobbying) that the federal tax code
imposed on a nonproft's § 501(c)(3) organization because the

Cite
as: 591 U. S. 430 (2020)
451
Breyer, J., dissenting
nonproft could still speak through a separate § 501(c)(4) or-
gani
zation. See 461 U. S., at 544. Put simply, one speaker
(the nonproft) could act (and speak) through two legally sep-
arate entities (the § 501(c)(3) and § 501(c)(4) organizations).
Recall also our similar observation in League of Women
Voters. There we noted that a funding condition's ban on
editorializing would have been constitutional if, in contrast
to the law at issue, the statute let noncommercial broadcast-
ers “make known” their “views on matters of public impor-
tance” by speaking through legally separate “editorializing
affliate[s].” 468 U. S., at 400. Once again, we made clear
that a single speaker can act (and speak) through two legally
separate entities. But because the speaker in League of
Women Voters was not free to do so, we held that the Gov-
ernment's funding condition violated the First Amendment.
Id., at 400–401.
Regan and League of Women Voters are far from our only
precedents recognizing this frmly entrenched First Amend-
ment principle. See Legal Services Corporation v. Velaz-
quez, 531 U. S. 533, 546 (2001) (observing that organizational
affliates may provide “alternative channel[s] for expression”
by a single speaker); Rust v. Sullivan, 500 U. S. 173, 196–198
(1991) (similar). We reiterated that rule once again in
AOSI I. See 570 U. S., at 215–217, 219.
Thus, in the First Amendment context, the corporate veil
is not an iron curtain. Just the opposite. We attribute
speech across corporate lines all the time.
Rightly so. When a funding condition restricts speech,
this familiar framework often avoids First Amendment prob-
lems by allowing “alternative channel[s]” for speakers to ex-
press themselves. Velazquez, 531 U. S., at 546. And when
a funding condition compels speech, the same logic leads to
a similarly sensible result: The Government may not require
you to speak out of both sides of your mouth, even if each
side happens to have been incorporated as a separate legal
entity. See AOSI I, 570 U. S., at 219.

452 A
GENCY FOR INT'L DEVELOPMENT v. ALLIANCE
FOR OPEN SOCIETY INT'L, INC.
Breyer, J., dissenting
A contrary approach would have led to a rather surprising
resu
lt in AOSI I. Assume for a moment that the Policy Re-
quirement simply commanded respondents' clearly identifed
affliates to speak—the kind of “direct regulation of speech”
that we said “would plainly violate the First Amendment,”
id., at 213. Treating corporate lines as ironclad would mean
that respondents could not object to that direct distortion
of their own message. Under all the cases just discussed,
however, that cannot be right. And as discussed below,
it is equa l ly wrong under our cases i nvolv i ng speech
misattribution.
B
The First Amendment protects speakers from government
compulsion that is likely to cause an audience to mistake
someone else's message for the speaker's own views. See,
e. g., Hurley, 515 U. S., at 572–573; Pacifc Gas & Elec. Co.
v. Public Util. Comm'n of Cal., 475 U. S. 1, 15–16 (1986).
Corporate separation makes no meaningful difference in this
speech-misattribution context, either.
Consider our unanimous decision in Hurley. In that case,
a group called the South Boston Allied War Veterans Council
organized a parade. 515 U. S., at 560. The Irish-American
Gay, Lesbian and Bisexual Group of Boston—a separate
group who called themselves “GLIB” for short—wanted to
participate. Id., at 561. After the Veterans Council said
no, GLIB obtained a court order directing the Veterans
Council to let GLIB march in the parade. Id., at 561–562.
Recognizing that “every participating unit affects the mes-
sage conveyed by the parade organizers,” we held in Hurley
that the order distorted the Veterans Council's protected
speech. Id., at 572–573. Because GLIB wanted to “carr[y]
its own banner” with its own message, and because onlookers
would understand GLIB as “contribut[ing] something to” the
parade's “common theme,” the order “essentially requir[ed]”
the Veterans Council “to alter the expressive content of their

Cite
as: 591 U. S. 430 (2020)
453
Breyer, J., dissenting
parade.” Id., at 572–573, 576. That violated the First
Amendment.
Id., at 573.
The First Amendment violation in this case is even more
apparent. In Hurley, the Veterans Council had merely
“combin[ed] multifarious voices” of disparate groups without
bothering to “isolate an exact message,” yet the First
Amendment protec ted its message from gover nment-
compelled distortion all the same. Id., at 569. Respond-
ents in this case have done the Veterans Council one better.
They have carefully constructed a cogent message and mar-
shaled their clearly identifed foreign affliates to express it
across the globe. See supra, at 447–448, 450.
Furthermore, in Hurley we could only speculate about
what GLIB's exact message was and why the Veterans
Council did not want to be associated with it. See 515 U. S.,
at 574–575. But here we know exactly what the challenged
message is (“a policy explicitly opposing prostitution and sex
traffcking ”) and why respondents don't want to be associ-
ated with it (the message, among other things, purportedly
“ `stigmatizes one of the very groups whose trust [respond-
ents] must earn to conduct effective HIV/AIDS preven-
tion' ”). 22 U. S. C. § 7631(f ); Brief for Respondents 11. For
that reason as well, the First Amendment injury in this case
is open, obvious, and unusually well defned.
True, Hurley and our other speech-misattribution cases
dealt with a speaker complaining about being forced to affl-
iate with someone else's speech, rather than (as here) their
pre-existing affliate being forced to speak. Cf. ante, at 436–
437. But that factual distinction makes no constitutional
difference. From a First Amendment perspective, the lat-
ter situation is just as bad or even worse, not better.
Consider Hurley again. If, rather than requiring the Vet-
erans Council to let GLIB march while carrying its banner,
the state court had ordered a previously invited marcher (or
worse still, all previously invited marchers) to display
GLIB's banner, the Veterans Council would have prevailed

454 A
GENCY FOR INT'L DEVELOPMENT v. ALLIANCE
FOR OPEN SOCIETY INT'L, INC.
Breyer, J., dissenting
all the same. By compelling speech from an existing affli-
ate
(or all of them), that order would have required, even
more brazenly, that the Veterans Council “alter the expres-
sive content of their parade” in violation of the Veterans
Council's First Amendment rights. 515 U. S., at 572–573.
So too if the state court had decreed that GLIB's banner
must adorn a horse, oxen, or for that matter R2–D2, a
robot—even though those entities lack their own First
Amendment rights. Whether the transmitter of a speaker's
protected message does (or does not) have its own First
Amendment rights is beside the point. Cf. Wooley, 430
U. S., at 717 (prohibiting New Hampshire from requiring
that the state motto adorn a driver's car, even though cars
do not have First Amendment rights).
There is a reason why, until today, we had not confronted
a case like the one just described. Cf. ante, at 436–437.
Requiring someone to host another person's speech is often
a perfectly legitimate thing for the Government to do. See,
e. g., FAIR, 547 U. S., at 65 (holding that the Government
may require law schools to host speech from military recruit-
ers); PruneYard Shopping Center v. Robins, 447 U. S. 74, 87–
88 (1980) (holding that the Government may require the
owner of a private shopping mall to host speech from politi-
cally minded pamphleteers). Even the court order at issue
in Hurley was an understandable (though unconstitutional)
application of a “venerable” civil rights law. See 515 U. S.,
at 571. But because compelling people to profess a belief
they do not hold is almost always unconstitutional, see
AOSI I, 570 U. S., at 213, the Government rarely dares try.
The Government's well-founded reticence in the past is no
reason to bless its boldness at present.
Bottom line: The critical question here, as in Hurley, is
simply whether the Government has demanded a profession
of belief that will distort the speaker's message. How the
Government causes that distortion makes no constitutional
difference. And as explained, enforcing the Policy Require-

Cite
as: 591 U. S. 430 (2020)
455
Breyer, J., dissenting
ment against respondents' clearly identifed foreign affliates
wou
ld plainly distort respondents' message. See supra,
at 447–448, 450. That violates respondents' First Amend-
ment rights.
C
So far as I am aware, we have never before held that an
American speaker forfeits First Amendment protecti on
when it speaks though foreign affliates to reach audiences
overseas. It is easy to understand why.
Many American news networks operate through clearly
identifed foreign affliates when speaking abroad. Viewers
attribute that speech to an American speaker: the network.
That is the whole point of using clearly identifed foreign
affliates. For example, CNN speaks to audiences in the
Philippines, Brazil, Indonesia, and other countries using for-
eign affliates, usually styled as CNN Philippines, CNN Bra-
zil, CNN Indonesia, and so on. See CNN Worldwide Fact
Sheet (Oct. 2019), https://cnnpressroom.blogs.cnn.com/cnn-
fact-sheet. But does that corporate structure mean that
CNN—i. e., the American parent organization—has no First
Amendment protection against a Government effort to, say,
prevent CNN Mexico from covering the fatal shooting of a
Mexican child by a U. S. Border Patrol agent? Cf. Hernán-
dez v. Mesa, 589 U. S. 93 (2020) (Hernández II ). Or to com-
pel CNN Mexico to run a different story, perhaps one
produced by Government personnel, that praises American
policy at the border?
We should be highly skeptical. If the Government com-
mandeered CNN's clearly identifed foreign affliate in these
or similar ways, whether by monetary pressure or some
other means, CNN should have constitutional recourse.
Some critical foreign policy interests might complicate the
First Amendment calculus—say, a wartime need to keep
future battle plans secret. But noth i ng l ike that is
present here. And it is diffcult to accept the notion that
the First Amendment permits the Government to suppress,

456 A
GENCY FOR INT'L DEVELOPMENT v. ALLIANCE
FOR OPEN SOCIETY INT'L, INC.
Breyer, J., dissenting
compel, or otherwise distort any and all American speech
transmitted
abroad through a clearly identifed foreign
affliate.
III
The upshot is: (1) The messages at issue here belong
to American speakers; (2) clearly identifed foreign affliates
are a critical means of conveying those messages overseas;
and (3) enforcing the Policy Requirement against those
affiliates distorts respondents' own protected speech—
and thus v i olates respondents' own First Amendment
rights.
The majority justifes its contrary result on three main
grounds, two of which it says are “bedrock principles” of
American law. See ante, at 433–436, 438–439. I do not fnd
these arguments persuasive.
A
The frst “bedrock principle” on which the majority relies
is the supposedly long-settled, across-the-board rule “that
foreign citizens outside U. S. territory do not possess rights
under the U. S. Constitution.” Ante, at 433. That sweep-
ing assertion is neither relevant to this case nor correct on
the law.
It is not relevant because, as I have said, this case does
not concern the constitutional rights of foreign organizations.
This case concerns the constitutional rights of American or-
ganizations. Every respondent here is—and has always
been—American. AOSI I, 570 U. S., at 210; see also Brief
for Petitioners 7, 19 (acknowledging as much). No foreign
entities are party to this case, and respondents have never
claimed that the Policy Requirement violates anyone's First
Amendment rights apart from their own. Both the District
Court and the Court of Appeals decided the case on that
basis. The question before us is clear: whether the First
Amendment protects Americans when they speak through
clearly identifed foreign affliates to reach audiences over-

Cite
as: 591 U. S. 430 (2020)
457
Breyer, J., dissenting
seas. See supra, at 448. Whether the foreign affliates
themselves
have their own First Amendment rights is not at
issue. See Brief for Respondents 36, n. 3.
Even taken on its own terms, the majority's blanket asser-
tion about the extraterritorial reach of our Constitution does
not refect the current state of the law. The idea that for-
eign citizens abroad never have constitutional rights is not a
“bedrock” legal principle. At most, one might say that they
are unlikely to enjoy very often extraterritorial protection
under the Constitution. Or one might say that the matter
is undecided. But this Court has studiously avoided estab-
lishing an absolute rule that forecloses that protection in all
circumstances.
In Hernández v. Mesa, 582 U. S. 548 (2017) (per curiam)
(Hernández I), for example, we specifcally declined to decide
the “sensitive” question whether, on the facts then before
us, a Mexican citizen standing on Mexican soil had Fourth
Amendment rights—precisely because the answer to that ex-
traterritoriality question “may have consequences that are
far reaching.” Id., at 554. Hernández later came to this
Court again, and we decided the case on alternative grounds.
See Hernández II, 589 U. S., at 113–114. Were the majori-
ty's categorical rule of (non)extraterritoriality etched in
stone, we could have disposed of Hernández the frst time
around in a few short sentences.
Nor do the cases that the majority cites support an absolute
rule. See ante, at 434. The exhaustive review of our prece-
dents that we conducted in Boumediene v. Bush, 553 U. S. 723
(2008), pointed to the opposite conclusion. In Boumediene,
we rejected the Government's argument that our decision
in Johnson v. Eisentrager, 339 U. S. 763 (1950), “adopted a
formalistic” test “for determining the reach” of constitu-
tional protection to foreign citizens on foreign soil. 553
U. S., at 762. This is to say, we rejected the position that
the majority propounds today. See ante, at 434, 435, and n.
(quoting Eisentrager at length). Its “constricted reading ”

458 A
GENCY FOR INT'L DEVELOPMENT v. ALLIANCE
FOR OPEN SOCIETY INT'L, INC.
Breyer, J., dissenting
of Eisentrager and our other precedents is not the law. See
Bo
umediene, 553 U. S., at 764; see also, e. g., Neuman, Under-
standing Global Due Process, 23 Geo. Immigration L. J. 365,
400 (2009) (describing our cases as rejecting any absolute
view).
The law, we confrmed in Boumediene, is that constitu-
tional “questions of extraterritoriality turn on objective fac-
tors and practical concerns” present in a given case, “not
formalism” of the sort the majority invokes today. 553 U. S.,
at 764. Those considerations include the extent of de facto
U. S. Government control (if any) over foreign territory.
See ante, at 434. But they also include the nature of the
constitutional protection sought, how feasible extending it
would be in a given case, and the foreign citizen's status vis-
à-vis the United States, among other pertinent circum-
stances that might arise. 553 U. S., at 766; see also United
States v. Verdugo-Urquidez, 494 U. S. 259, 278 (1990) (Ken-
nedy, J., concurring) (providing the decisive ffth vote for re-
jecting a foreign citizen's claim to constitutional protection
on foreign soil outside U. S. control because “[t]he conditions
and considerations of this case would make adherence to the
Fourth Amendment's warrant requirement impracticable
and anomalous” (emphasis added)). Our precedents reject
absolutism. Indeed, even our most sweeping statements
about foreign citizens' (lack of ) constitutional rights while
outside U. S. Territory have come with limits. See, e. g.,
Landon v. Plasencia, 459 U. S. 21, 32 (1982) (noting that “an
alien seeking initial admission to” this country “has no con-
stitutional rights regarding his application” (emphasis
added)); Kleindienst v. Mandel, 408 U. S. 753, 762 (1972)
(similar).
There is wisdom in our past restraint. Situations where
a foreign citizen outside U. S. Territory might fairly assert
constitutional rights are not diffcult to imagine. Long-term
permanent residents are “foreign citizens.” Does the Con-
stitution therefore allow American offcials to assault them

Cite
as: 591 U. S. 430 (2020)
459
Breyer, J., dissenting
at will while “outside U. S. territory”? Many international
students
attend college in the United States. Does the First
Amendment permit a public university to revoke their ad-
mission based on an unpopular political stance they took on
social media while home for the summer? Foreign citizens
who have never set foot in the United States, for that matter,
often protest when Presidents travel overseas. Does that
mean Secret Service agents can, consistent with our Consti-
tution, seriously injure peaceful protestors abroad without
any justifcation?
We have never purported to give a single “bedrock” an-
swer to these or myriad other extraterritoriality questions
that might arise in the future. To purport to do so today, in
a case where the question is not presented and where the
matter is not briefed, is in my view a serious mistake.
And there is no need to set forth an absolute rule here.
Respondents have conceded that their foreign affliates lack
First Amendment rights of their own while acting abroad.
See ante, at 433–434. If in spite of everything else, the ma-
jority considers this point material to its decision, all that
need be said is: “We accept respondents' concession and pro-
ceed on that basis.” To say so much more “run[s] contrary
to the fundamental principal of judicial restraint,” a principle
that applies with particular force to constitutional interpre-
tation. Washington State Grange v. Washington State Re-
publican Party, 552 U. S. 442, 450 (2008); see also, e. g., Lyng
v. Northwest Indian Cemetery Protective Assn., 485 U. S.
439, 445 (1988); Three Affliated Tribes of Fort Berthold Res-
ervation v. Wold Engineering, P. C., 467 U. S. 138, 158 (1984);
United States v. Raines, 362 U. S. 17, 21 (1960); Liverpool,
New York & Philadelphia S. S. Co. v. Commissioners of Em-
igration, 113 U. S. 33, 39 (1885).
B
The majority's second supposedly “bedrock principle” is
that “separately incorporated organizations are separate

460 A
GENCY FOR INT'L DEVELOPMENT v. ALLIANCE
FOR OPEN SOCIETY INT'L, INC.
Breyer, J., dissenting
legal units with distinct legal rights and obligations.” Ante,
at
435. Sometimes true, sometimes not. This baseline rule
gives way in many contexts, and our First Amendment prec-
edents (including AOSI I ) refute any suggestion that a work-
aday principle of corporate law somehow resolves the consti-
tutional issue here in dispute.
As the majority acknowledges, corporate law itself permits
courts to pierce or otherwise disregard the corporate veil in
a variety of circumstances. See ante, at 435–436. Those
narrow exceptions, however, are not the only time the law
looks past corporate formalities. For instance, we have
treated “several nominally separate business entities” as “a
single employer” for purposes of federal labor law. Radio &
Television Technicians v. Broadcast Service of Mobile, Inc.,
380 U. S. 255, 256 (1965) (per curiam). Earlier this Term,
we reaffrmed that one corporate entity may sometimes in-
voke the right of another, legally separate entity to compel
arbitration. See GE Energy Power Conversion France
SAS v. Outokumpu Stainless USA, LLC, 590 U. S. 432, 437
(2020). And these are far from the only relevant examples.
See, e. g., American Needle, Inc. v. National Football League,
560 U. S. 183, 196 (2010) (observing that, in many antitrust
cases, corporate formalities are “not determinative”).
More to the point, our First Amendment precedents leave
no doubt that corporate formalities have little to say about
the issue now before us. We have made clear again and
again (and again) that speech may be attributed across cor-
porate lines in the First Amendment context—including in
our previous opinion in this very case. See AOSI I, 570
U. S., at 219 (concluding that speech uttered involuntarily by
legally separate affliates may be attributed to respondents
if the affliates are “clearly identifed” with respondents);
League of Women Voters, 468 U. S., at 400 (observing that
funding conditions that restrict speech can survive constitu-
tional scrutiny if the speaker may “make known its views
on matters of public importance through” a legally separate

Cite
as: 591 U. S. 430 (2020)
461
Breyer, J., dissenting
affliate—and if not, not); Regan, 461 U. S., at 544 (similar);
Ru
st, 500 U. S., at 196–198 (similar); Velazquez, 531 U. S., at
546–547 (similar). And these precedents further establish
that merely requiring speakers to work through affliates is
“not unduly burdensome” and can therefore cure, rather than
create, First Amendment concerns. Regan, 461 U. S., at
545, n. 6. Contra, ante, at 438–439 (suggesting that such a
requirement would be unconstitutional). Small wonder the
majority can muster only two context-specifc and statute-
specifc cases—one addressing the Foreign Sovereign Im-
munities Act, the other involving the Racketeer Infuenced
and Corrupt Organizations Act—as affrmative support for
its conclusion that corporate formalities somehow control the
First Amendment question before us. See ante, at 435 (cit-
ing Dole Food Co. v. Patrickson, 538 U. S. 468 (2003), and Ce-
dric Kushner Promotions, Ltd. v. King, 533 U. S. 158 (2001)).
The majority also attempts to distinguish the facts before
us now from the facts that were before us last time. It as-
serts that, in contrast to the affliations we addressed in
AOSI I, respondents' “current affliations with foreign orga-
nizations are their own choice.” Ante, at 439. There are
two problems with this. First, the description is not accu-
rate. Foreign governments—and increasingly, the U. S.
Government—often require respondents to work through
foreign affliates. See, e. g., App. 368, 373–375. Second,
even if respondents' associations with foreign affliates were
voluntary, it would not solve the First Amendment problem.
In Wooley, for example, it was the drivers' choice to own
a car, but that did not mean they could be compelled to con-
vey the Government's message on their car's license plate.
See 430 U. S., at 717. And in Hurley, as explained, the Gov-
ernment would have violated the parade organizers' First
Amendment rights just the same if it had compelled speech
from a previously invited marcher, whether human, animal,
or droid. See supra, at 453–454. Can the majority really
mean to suggest otherwise, simply because the parade orga-

462 A
GENCY FOR INT'L DEVELOPMENT v. ALLIANCE
FOR OPEN SOCIETY INT'L, INC.
Breyer, J., dissenting
nizers' decision to invite the marcher in the frst place was
“
their own choice”?
C
The majority also makes two practical arguments, but nei-
ther justifes the First Amendment costs of its decision.
The majority frst says that a ruling in respondents' favor
would disrupt American foreign policy by requiring the Gov-
ernment to fund “organizations that may not align with U. S.
values.” Ante, at 436. We dismissed this same concern in
AOSI I. The Policy Requirement, we explained, does not
merely help the Government “enlist the assistance of those
with whom it already agrees.” AOSI I, 570 U. S., at 218.
It pressures funding recipients “to adopt a particular belief.”
Ibid. (emphasis added). All that is at stake here, in other
words, is whether the Government may leverage the power
of the purse to win converts to its cause. That bare desire
to regulate protected speech is far from any foreign policy
interest that could conceivably overcome a speaker's First
Amendment r ight to convey its message free from
government-compelled distortion. Cf. New York Times Co.
v. United States, 403 U. S. 713 (1971) (per curiam).
The majority also fears that determining whether Govern-
ment action creates a risk of speech misattribution (and with
it speech distortion) is a “legally unmoored” standard rife
with “diffcult line-drawing exercises.” Ante, at 438. But
we have drawn just this kind of line many times. See, e. g.,
PruneYard, 447 U. S., at 87 (holding that “views expressed
by members of the public” in a privately owned shopping
mall “will not likely be identifed with those of the owner”);
Hurley, 515 U. S., at 572 (holding that a marcher's message
will likely be attributed to the parade organizer's, since
“every participating unit” in a parade “affects the [overall]
message”); FAIR, 547 U. S., at 65 (holding that nothing about
having military recruiters on campus “suggests that law
schools agree with any speech by recruiters”). I should
think that the price of making diffcult judgment calls is well

Cite
as: 591 U. S. 430 (2020)
463
Breyer, J., dissenting
worth paying to protect First Amendment rights. See Mc-
Cu
tcheon v. Federal Election Comm'n, 572 U. S. 185, 209
(2014); Lloyd Corp. v. Tanner, 407 U. S. 551, 570 (1972). And
“on the facts presented in this case,” at any rate, “the answer
is clear.” Id., at 570. Enforcing the Policy Requirement vi-
olates respondents' First Amendment rights, just as it did
before.
***
The Court today concludes that respondents' foreign affl-
iates “do not have a First Amendment right to disregard
the Policy Requirement.” Ante, at 439. Respondents have
never argued otherwise. Rather, throughout this litigation
they have asserted their own First Amendment right to
speak their mind, rather than the Government's message.
Here, respondents claim First Amendment protection when
they speak through foreign affliates to address audiences
abroad. By denying respondents that protection, I fear the
Court's decision will seriously impede the countless Ameri-
can speakers who communicate overseas in a similar way.
That weakens the marketplace of ideas at a time when the
value of that marketplace for Americans, and for others,
reaches well beyond our shores. With respect, I dissent.

Reporter’s Note
The next page is purposely numbered 1001. The numbers between 463
and 1001 were intentionally omitted, in order to make it possible to publish
the orders with permanent page numbers, thus making the offcial cita-
tions available upon publication of the preliminary prints of the United
States Reports.

ORDERS
FOR JUNE 18 THROUGH
JUNE 29, 2020
June 18, 2020
Miscellaneous Order
No. 19–1348. Bourgeois et al. v. Barr, Attorney Gen-
eral, et al. C. A. D. C. Cir. Motion to expedite consideration
of the petition for writ of certiorari granted. Respondents are
directed to fle a response to the petition on or before 5 p.m.,
Friday, June 19, 2020. Petitioners may fle a reply brief on or
before 5 p.m., Monday, June 22, 2020. Amicus curiae briefs may
be fled on or before 5 p.m., Friday, June 19, 2020.
June 22, 2020
Certiorari Dismissed
No. 19–8327. Ibeabuchi v. Brnovich, Attorney General
of Arizona, et al. C. A. 9th Cir. Motion of petitioner for
leave to proceed in forma pauperis denied, and certiorari dis-
missed. See this Court's Rule 39.8. As petitioner has repeat-
edly abused this Court's process, the Clerk is directed not to
accept any further petitions in noncriminal matters from peti-
tioner unless the docketing fee required by Rule 38(a) is paid and
the petition is submitted in compliance with Rule 33.1. See Mar-
tin v. District of Columbia Court of Appeals, 506 U. S. 1 (1992)
(per curiam).
No. 19–8365. Lopez v. California. Ct. App. Cal., 4th App.
Dist., Div. 3. Motion of petitioner for leave to proceed in forma
pauper is denied, and certiorari dismissed. See this Court's
Rule 39.8.
Miscellaneous Orders
No. 19M143. Rojas v. Meinster et al.; and
No. 19M144. Sesztak et ux. v. Great Northern Insur-
ance Co., Inc., et al. Motions to direct the Clerk to fle peti-
tions for writs of certiorari out of time denied.
1001

1002 OCTOBER
TERM, 2019
June 22, 2020 591 U. S.
No. 19M145. In re Wright;
N
o. 19M146. In re Wright; and
No. 19M147. Albritton v. Brnovich, Attorney General
of Arizona, et al.; and Albritton v. Shinn, Director, Ari-
zona Department of Corrections. Motions for leave to pro-
ceed as veterans denied.
No. 19–7597. Wazney v. Nelson, Warden. C. A. 4th Cir.
Motion of petitioner for reconsideration of order denying leave to
proceed in forma pauperis [589 U. S. 1304] denied.
No. 19–8575. In re Robinson; and
No. 19–8578. In re Smith. Petitions for writs of habeas cor-
pus denied.
No. 19–8276. In re Spence; and
No. 19–8278. In re Spence. Petitions for writs of manda-
mus denied.
Certiorari Denied
No. 19–601. Collabo Innovations, Inc. v. Sony Corp. et al.
C. A. Fed. Cir. Certiorari denied. Reported below: 778 Fed.
Appx. 954.
No. 19–868. Miner et al. v. Picatti. Sup. Ct. Idaho. Cer-
tiorari denied. Reported below: 165 Idaho 611, 449 P. 3d 403.
No. 19–924. Indiana v. Ruiz. Sup. Ct. Ind. Certiorari de-
nied. Reported below: 123 N. E. 3d 675.
No. 19–937. Cherokee Nation v. Bernhardt, Secretary
of the Interior, et al. C. A. 10th Cir. Certiorari denied.
Reported below: 936 F. 3d 1142.
No. 19–939. Gustus v. United States. C. A. 8th Cir. Cer-
tiorari denied. Reported below: 926 F. 3d 1037.
No. 19–980. Ariana M. v. Humana Health Plan of Texas,
Inc. C. A. 5th Cir. Certiorari denied. Reported below: 792
Fed. Appx. 287.
No. 19–1001. Cooper et al. v. Flaig et al. C. A. 5th Cir.
Certiorari denied. Reported below: 779 Fed. Appx. 269.
No. 19–1008. Hodge et al. v. United States. C. A. 5th Cir.
Certiorari denied. Reported below: 933 F. 3d 468.

ORDERS 1003
591 U. S.
J
une 22, 2020
No. 19–1009. Altera Corporation & Subsidiaries v. Com-
mis
sioner of Internal Revenue. C. A. 9th Cir. Certiorari
denied. Reported below: 926 F. 3d 1061.
No. 19–1037. Sok Bun v. United States; and
No. 19–8000. Peterson v. United States. C. A. 4th Cir.
Certiorari denied. Reported below: 945 F. 3d 144.
No. 19–1062. CJ Cheil Jedang Corp. et al. v. Interna-
tional Trade Commission et al. C. A. Fed. Cir. Certiorari
denied. Reported below: 932 F. 3d 1342.
No. 19–1074. Celgene Corp. v. Peter, Deputy Under Sec-
retary of Commerce for Intellectual Property and Dep-
uty Director, Patent and Trademark Ofce. C. A. Fed.
Cir. Certiorari denied. Reported below: 931 F. 3d 1342.
No. 19–1134. Baley et al. v. United States et al. C. A.
Fed. Cir. Certiorari denied. Reported below: 942 F. 3d 1312.
No. 19–1153. Suzuki et al. v. Deedy. C. A. 9th Cir. Certio-
rari denied. Reported below: 788 Fed. Appx. 549.
No. 19–1173. Comcast Corp. et al. v. International Trade
Commission et al. C. A. Fed. Cir. Certiorari denied. Re-
ported below: 951 F. 3d 1301.
No. 19 –1177. American Institute for International
Steel, Inc., et al. v. United States et al. C. A. Fed. Cir.
Certiorari denied.
No. 19–1216. Botofan-Miller v. Miller. Sup. Ct. Ore.
Certiorari denied.
No. 19–1222. Duckworth v. United States. C. A. 10th Cir.
Certiorari denied. Reported below: 792 Fed. Appx. 573.
No. 19–1224. Manning v. Kim. Ct. App. Cal., 1st App. Dist.,
Div. 1. Certiorari denied.
No. 19–1229. Mulcahy v. Aspen Skiing Co. Ct. App. Colo.
Certiorari denied.
No. 19–1230. Knight v. Chenega Security, Inc., et al.
C. A. 4th Cir. Certiorari denied. Reported below: 757 Fed.
Appx. 286.

1004 OCTOBER
TERM, 2019
June 22, 2020 591 U. S.
No. 19–1232. Bank v. Al Johnson’s Swedish Restaurant
&
Butik, Inc. C. A. Fed. Cir. Certiorari denied. Reported
below: 795 Fed. Appx. 822.
No. 19–1233. Doyle v. Palmer, Clerk, United States Dis-
trict Court for the Eastern District of New York. C. A.
2d Cir. Certiorari denied. Reported below: 787 Fed. Appx. 794.
No. 19–1235. Clark v. Virginia. Sup. Ct. Va. Certiorari
denied.
No. 19–1237. Wheeler v. North Dakota et al. C. A. 8th
Cir. Certiorari denied.
No. 19–1243. Armstrong v. Wilson County, North Caro-
lina, et al. C. A. 4th Cir. Certiorari denied.
No. 19–1256. Levin v. Florida. Dist. Ct. App. Fla., 5th Dist.
Certiorari denied. Reported below: 284 So. 3d 1072.
No. 19–1262. Greer v. Mehiel et al. C. A. 2d Cir. Certio-
rari denied. Reported below: 805 Fed. Appx. 25.
No. 19–1266. H. B., a Minor, Individually and as Succes-
sor in Interest to Shirley, By and Through His Guardian
ad Litem, Shirley v. City of Torrance, California, et al.
C. A. 9th Cir. Certiorari denied. Reported below: 790 Fed.
Appx. 60.
No. 19–1313. Dixon v. United States. C. A. 4th Cir. Cer-
tiorari denied. Reported below: 797 Fed. Appx. 95.
No. 19–7260. Kaufmann v. United States. C. A. 7th Cir.
Certiorari denied. Reported below: 940 F. 3d 377.
No. 19–7310. Smith v. Florida. Dist. Ct. App. Fla., 2d Dist.
Certiorari denied. Reported below: 284 So. 3d 452.
No. 19–7382. Johnson v. United States. C. A. 5th Cir.
Certiorari denied. Reported below: 781 Fed. Appx. 370.
No. 19–7544. Waggy v. United States. C. A. 9th Cir. Cer-
tiorari denied. Reported below: 936 F. 3d 1014.
No. 19–7699. Carr v. Mississippi. Sup. Ct. Miss. Certio-
rari denied.
No. 19–7743. Langley v. Oregon. Sup. Ct. Ore. Certio-
rari denied.

ORDERS 1005
591 U. S.
J
une 22, 2020
No. 19–7794. Fogleman v. Mississippi. Sup. Ct. Miss. Cer-
ti
orari denied. Reported below: 283 So. 3d 685.
No. 19–7834. Soto v. Ohio. Sup. Ct. Ohio. Certiorari denied.
Reported below: 158 Ohio St. 3d 44, 2019-Ohio-4430, 139 N. E.
3d 889.
No. 19–7865. Mecham v. United States. C. A. 5th Cir.
Certiorari denied. Reported below: 950 F. 3d 257.
No. 19–7991. Garcia v. United States. C. A. 10th Cir.
Certiorari denied. Reported below: 936 F. 3d 1128.
No. 19–8037. Ruttkamp v. Bank of New York Mellon, fka
Bank of New York. App. Ct. Conn. Certiorari denied.
No. 19–8229. Harris v. Oklahoma. Ct. Crim. App. Okla.
Certiorari denied. Reported below: 2019 OK CR 22, 450 P. 3d
933.
No. 19–8272. Tate v. Ford, Warden. Sup. Ct. Ga. Certio-
rari denied. Reported below: 307 Ga. 383, 835 S. E. 2d 198.
No. 19–8280. Jaime Jimenez v. Davis, Director, Texas De-
partment of Criminal Justice, Correctional Institutions
Division. C. A. 5th Cir. Certiorari denied.
No. 19–8281. Abdullah v. New Jersey. Super. Ct. N. J.,
App. Div. Certiorari denied.
No. 19–8283. Toney v. Dickson et al. C. A. 8th Cir. Cer-
tiorari denied. Reported below: 786 Fed. Appx. 612.
No. 19–8288. Truong et al. v. Barnard et al. C. A. 2d
Cir. Certiorari denied.
No. 19–8289. Yeyille v. Altonaga et al. C. A. 11th Cir.
Certiorari denied.
No. 19–8292. Tinsley v. Yates, Administrator, Adult Di-
agnostic and Treatment Center, et al. C. A. 3d Cir. Cer-
tiorari denied.
No. 19–8298. Kissi v. United States District Court for
the District of Maryland. C. A. 4th Cir. Certiorari denied.
No. 19–8299. Pattioay v. Hawaii. C. A. 9th Cir. Certio-
rari denied.

1006 OCTOBER
TERM, 2019
June 22, 2020 591 U. S.
No. 19–8303. Metoyer v. Fudge, in Her Individual and
Of
cial Capacity as Executive Director of the Oklahoma
Pardon and Parole Board, et al. C. A. 10th Cir. Certiorari
denied. Reported below: 786 Fed. Appx. 849.
No. 19–8305. Ononuju v. Virginia. Sup. Ct. Va. Certio-
rari denied.
No. 19–8306. Nwagu v. Davis, Director, Texas Depart-
ment of Criminal Justice, Correctional Institutions Divi-
sion. C. A. 5th Cir. Certiorari denied.
No. 19–8307. Lopez v. Cook, Commissioner, Connecticut
Department of Correction. App. Ct. Conn. Certiorari de-
nied. Reported below: 195 Conn. App. 904, 224 A. 3d 938.
No. 19–8309. Fisher v. Frontline National. C. A. 4th Cir.
Certiorari denied. Reported below: 775 Fed. Appx. 125.
No. 19–8313. Tully v. Clarke, Director, Virginia Depart-
ment of Corrections. C. A. 4th Cir. Certiorari denied.
Reported below: 791 Fed. Appx. 426.
No. 19–8314. Ward v. Crow, Director, Oklahoma Depart-
ment of Corrections. C. A. 10th Cir. Certiorari denied.
Reported below: 793 Fed. Appx. 712.
No. 19–8320. Talley v. Pennsylvania Department of Cor-
rections et al. C. A. 3d Cir. Certiorari denied. Reported
below: 791 Fed. Appx. 291.
No. 19–8321. Carney v. Virginia. Sup. Ct. Va. Certiorari
denied.
No. 19–8323. Coodey v. Oklahoma. Ct. Crim. App. Okla.
Certiorari denied.
No. 19–8324. Hornsby v. Davis, Director, Texas Depart-
ment of Criminal Justice, Correctional Institutions Divi-
sion. C. A. 5th Cir. Certiorari denied.
No. 19 – 8331. Rodriguez v. Griffin, Superintendent,
Green Haven Correctional Facility. C. A. 2d Cir. Certio-
rari denied.
No. 19–8343. Allen v. Vannoy, Warden. C. A. 5th Cir.
Certiorari denied.

ORDERS 1007
591 U. S.
J
une 22, 2020
No. 19–8360. Parra-Interian v. Obenland. C. A. 9th Cir.
Cer
tiorari denied.
No. 19–8369. Hoskins v. GE Aviation. C. A. 5th Cir. Cer-
tiorari denied. Reported below: 803 Fed. Appx. 740.
No. 19–8404. Gittens v. Kelly, Judge, Court of Common
Pleas of Pennsylvania, Erie County, et al. C. A. 3d Cir.
Certiorari denied. Reported below: 790 Fed. Appx. 439.
No. 19–8413. Pope v. Dunn, Commissioner, Alabama De-
partment of Corrections. C. A. 11th Cir. Certiorari denied.
No. 19–8445. Curry v. United States. C. A. 4th Cir. Cer-
tiorari denied. Reported below: 792 Fed. Appx. 267.
No. 19–8459. Becker v. United States. C. A. 11th Cir.
Certiorari denied. Reported below: 762 Fed. Appx. 668.
No. 19–8474. Thomas v. United States. C. A. 4th Cir.
Certiorari denied. Reported below: 794 Fed. Appx. 283.
No. 19–8477. Kendrick v. United States. C. A. 8th Cir.
Certiorari denied.
No. 19–8493. Stinson v. Hendrix, Warden. C. A. 8th Cir.
Certiorari denied.
No. 19–8503. Williams v. United States. C. A. 5th Cir.
Certiorari denied. Reported below: 793 Fed. Appx. 321.
No. 19–8504. Antonio Garcia v. United States. C. A. 9th
Cir. Certiorari denied. Reported below: 801 Fed. Appx. 525.
No. 19–8508. Villar v. United States. C. A. 11th Cir.
Certiorari denied. Reported below: 792 Fed. Appx. 764.
No. 19–8509. Gonzales v. California. Ct. App. Cal., 1st
App. Dist., Div. 5. Certiorari denied. Reported below: 42 Cal.
App. 5th 1144, 256 Cal. Rptr. 3d 325.
No. 19–8510. Garcia Torres v. United States. C. A. 4th
Cir. Certiorari denied. Reported below: 781 Fed. Appx. 267.
No. 19–8512. Mhlanga v. Hicks. C. A. 6th Cir. Certiorari
denied.
No. 19–8513. Catano Lopez v. United States. C. A. 5th
Cir. Certiorari denied. Reported below: 794 Fed. Appx. 431.

1008 OCTOBER
TERM, 2019
June 22, 2020 591 U. S.
No. 19–8515. Munday v. United States. C. A. 11th Cir.
Cer
tiorari denied. Reported below: 798 Fed. Appx. 566.
No. 19–8530. Clark v. United States. C. A. 8th Cir. Cer-
tiorari denied. Reported below: 934 F. 3d 843.
No. 19–8535. Johnson v. United States. C. A. 11th Cir.
Certiorari denied. Reported below: 805 Fed. Appx. 740.
No. 19–8537. Su v. United States. C. A. 9th Cir. Certio-
rari denied. Reported below: 797 Fed. Appx. 349.
No. 19–8543. Burdick v. United States. C. A. 2d Cir.
Certiorari denied. Reported below: 789 Fed. Appx. 886.
No. 19–8544. Carter v. United States. C. A. 8th Cir.
Certiorari denied. Reported below: 794 Fed. Appx. 554.
No. 19–8546. Annamalai et al. v. United States. C. A.
11th Cir. Certiorari denied. Reported below: 785 Fed. Appx.
819.
No. 19–8558. Hardman v. United States. C. A. 11th Cir.
Certiorari denied.
No. 19–1020. Bikundi v. United States. C. A. D. C. Cir.
Certiorari denied. Justice Kavanaugh took no part in the con-
sideration or decision of this petition. Reported below: 926 F. 3d
761.
No. 19–1031. Capron et al. v. Ofce of the Attorney
General of the Commonwealth of Massachusetts et al.
C. A. 1st Cir. Certiorari denied. Justice Breyer took no part
in the consideration or decision of this petition. Reported below:
944 F. 3d 9.
No. 19–1051. Kansas v. Boettger (Reported below: 310 Kan.
800, 450 P. 3d 805); and Kansas v. Johnson (310 Kan. 835, 450
P. 3d 790). Sup. Ct. Kan. Motion of respondents for leave to
proceed in forma pauperis granted. Certiorari denied.
Justice Thomas, dissenting.
Kansas asks us to decide whether the First Amendment prohib-
its States from criminalizing threats to “[c]ommit violence . . . in
reckless disregard of the risk of causing . . . fear.” Kan. Stat.
Ann. § 21–5415(a)(1) (2018). Respondent Timothy Boettger was

ORDERS 1009
1008
Thomas,
J., dissenting
convicted for telling the son of a police detective that he “ `was
goi
ng to end up fnding [his] dad in a ditch.' ” 310 Kan. 800,
802, 450 P. 3d 805, 807 (2019). Respondent Ryan Johnson was
separately convicted for telling his mother that he “ `wish[ed] [she]
would die,' ” that he would “ `help [her] get there,' ” and that he
was “ `going to f ***ing kill [her] a***.' ” 310 Kan. 835, 837, 450
P. 3d 790, 792 (2019). The Kansas Supreme Court overturned
both convictions and held that reckless threats are protected by
the First Amendment, relying on Virginia v. Black, 538 U. S.
343 (2003).
In my view, the Constitution likely permits States to criminal-
ize threats even in the absence of any intent to intimidate. See
Elonis v. United States, 575 U. S. 723, 760–767 (2015) (dissenting
opinion). It appears to follow that threats of violence made in
reckless disregard of causing fear may be prohibited. The Kan-
sas Supreme Court reached the opposite conclusion by overread-
ing our decision in Black, which did not answer the question
presented here. Other courts looking to Black, however, have
upheld similar statutes. State v. Taupier, 330 Conn. 149, 193
A. 3d 1 (2018); Major v. State, 301 Ga. 147, 800 S. E. 2d 348 (2017).
I would grant the petition for certiorari to resolve the split on
this important question.
I
The Fourteenth Amendment provides that “[n]o State shall
make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States.” § 1. As I have
previously explained, “[t]he evidence overwhelmingly demon-
strates that the privileges and immunities of such citizens in-
cluded individual rights enumerated in the Constitution.” Mc-
Donald v. Chicago, 561 U. S. 742, 823 (2010) (opinion concurring
in part and concurring in judgment). One of those rights is
“the freedom of speech” in the First Amendment. See, e. g.,
Cong. Globe, 39th Cong., 1st Sess., 2765 (1866) (speech of Sen.
Howard).
It does not appear that the ratifers of the First or Fourteenth
Amendments understood the freedom of speech to protect reck-
less threats. In 1754, Parliament passed a statute making it a
crime to “knowingly send any Letter without any Name sub-
scribed thereto, or signed with a fctitious Name . . . threatening
to kill or murder any of his Majesty's Subject or Subjects, or
to burn their [property], though no Money or Venison, or other

1010 OCTOBER
TERM, 2019
Thomas J., dissenting 591 U. S.
valuable Thing shall be demanded.” 27 Geo. 2, ch. 15. English
cour
ts interpreted this statute to require what is known today as
general intent—“that is, that the defendant posses[s] knowledge
with respect to the actus reus of the crime.” Carter v. United
States, 530 U. S. 255, 268 (2000). As the trial court instructed
the jurors in one leading case, “if they were of opinion that” the
“terms of the letter conveyed an actual threat to kill or murder
. . . and that the prisoner knew the contents of it, they ought to
fnd him guilty.” King v. Girdwood, 1 Leach 142, 143, 168 Eng.
Rep. 173 (1776). Only “if they thought [the defendant] did not
know the contents, or that the words might import any thing less
than to kill or murder” should they acquit. Ibid. The Court of
Crown approved this instruction. Ibid., 168 Eng. Rep., at 174;
see also Rex v. Boucher, 4 Car. & P. 562, 563, 172 Eng. Rep. 826,
827 (N. P. 1831).
More than a dozen States and Territories enacted “copies” of
this statute between the founding and Reconstruction. Elonis,
supra, at 761 (Thomas, J., dissenting). New Jersey, for example,
made it a crime to “knowingly send or deliver any letter or writ-
ing, with or without a name subscribed thereto, or signed with a
fctitious name, . . . threatening to maim, wound, kill or murder
any person, or to burn his or her [property], though no money,
goods or chattels, or other valuable thing shall be demanded.”
1796 N. J. Laws § 57, p. 108; see also Colo. Rev. Stat., ch. 22, § 112
(1868); 1864 Mont. Laws p. 205; 1864 Idaho Sess. Laws ch. 8, § 116;
1860 Pa. Laws p. 390; 1859 Neb. Laws p. 64; 1850 Cal. Stats. ch.
99, § 110; Mo. Rev. Stat. ch. 47, Art. 7, § 16 (1845); 1839 Iowa Acts
p. 161; 1832 Fla. Laws § 34, pp. 68–69; 1827 Ill. Laws p. 145; 1816
Mich. Pub. Acts p. 24; 1816 Ga. Laws p. 178. The founding and
Reconstruction generations would have understood these statutes
to require a mental state of general intent. Girdwood and other
English decisions were familiar to American lawyers. See, e. g.,
7 N. Dane, A General Abridgement and Digest of American Law
31–32 (1824). And “where English statutes . . . have been
adopted into our own legislation; the known and settled construc-
tion of those statutes by courts of law, has been considered
as silently incorporated into the acts, or has been received with
all the weight of authority.” Pennock v. Dialogue, 2 Pet. 1, 18
(1829); see also Elonis, supra, at 760–763 (Thomas, J., dissenting).
The prevalence of statutes from the founding through Reconstruc-
tion that did not require intent to intimidate provides strong

ORDERS 1011
1008
Thomas,
J., dissenting
evidence of the meaning of the freedom of speech protected by
the
Fourteenth Amendment.
This evidence is reinforced by the fact that many of these
States also guaranteed the freedom of speech in their constitu-
tions. See, e. g., Fla. Const., Art. I, § 5 (1838); Mich. Const., Art.
I, § 7 (1835); Mo. Const., Art. XIII, § 16 (1820); Ill. Const.,
Art. VIII, § 22 (1818); N. J. Const., Art. I, § 5 (1844); Pa. Const.,
Art. IX, § 7 (1790). If statutes criminalizing reckless threats vio-
lated the freedom of speech, one would expect these States not
to have such laws, but many of them did. At the very least, one
would expect state courts to hold such laws unconstitutional, but
it appears that none did. Near the end of the 19th century, one
court observed that these laws had “never been supposed to be
obnoxious to freedom of speech.” State v. McCabe, 135 Mo. 450,
459, 37 S. W. 123, 126 (1896).
Finally, none of this Court's precedents have held that the First
Amendment requires States to include intent to intimidate as an
element in criminal threat statutes. The Court's decision in
Watts v. United States, 394 U. S. 705 (1969) (per curiam), “ex-
pressly declined to address the mental state required under the
First Amendment for a `true threat.' ” Elonis, 575 U. S., at 765
(Thomas, J., dissenting). The state statute in Black required
“intent to intimidate,” Va. Code Ann. § 18.2–423 (1996), so the
Court did not decide whether such intent was required to make
the law comport with the First Amendment, Elonis, 575 U. S., at
765 (Thomas, J., dissenting).
II
The Kansas Supreme Court, however, concluded that Black pro-
hibited the State from criminalizing reckless threats. In reach-
ing that conclusion, the court created a split with the Supreme
Courts of Connecticut and Georgia. We should resolve this con-
fict and provide clear guidance to the lower courts.
In Black, a majority of the Court stated in passing that “ `[t]rue
threats' encompass those statements where the speaker means to
communicate a serious expression of an intent to commit an act
of unlawful violence to a particular individual or group of individ-
uals.” 538 U. S., at 359. The majority also stated in passing
that “[t]he speaker need not actually intend to carry out the
threat.” Id., at 359–360. Four Members of the majority added
that “[t]he First Amendment does not permit” state law to “ig-
nor[e] all of the contextual factors that are necessary to decide

1012 OCTOBER
TERM, 2019
June 22, 2020 591 U. S.
whether [an act] is intended to intimidate.” Id., at 367 (plural-
ity
opinion).
State courts of last resort have divided over the meaning of
this language. The Kansas Supreme Court held the State's reck-
less threat statute unconstitutional, relying on Black's statement
that “ `[i]ntimidation in the constitutionally proscribable sense of
the word is a type of true threat, where a speaker directs a threat
to a person or group of persons with the intent of placing the
victim in fear of bodily harm or death.' ” 310 Kan., at 822, 450
P. 3d, at 818 (quoting Black, 538 U. S., at 360; emphasis deleted).
But two other state courts of last resort have read Black differ-
ently. The Supreme Court of Connecticut found that “nothing in
Black itself suggests that the [C]ourt intended to overrule the
preexisting consensus among the federal circuit courts of appeals
that threateni ng speech may be punished under the [ F]irst
[A]mendment when a reasonable person wou ld interpret the
speech as a serious threat.” Taupier, 330 Conn., at 173, 193
A. 3d, at 18–19. And the Supreme Court of Georgia likewise
read Black to allow States to prohibit threats made with reckless
disregard. Major, 301 Ga., at 151, 800 S. E. 2d, at 352.
This split regarding the mental state required by the First
Amendment for these offenses will only deepen with time. Six-
teen States and the District of Columbia fled an amicus brief
representing that numerous statutes would be subject to chal-
lenge under the reasoning of the Supreme Court of Kansas.
Brief for Virginia et al. as Amici Curiae 11–12. If state high
courts hold even a fraction of these statutes unconstitutional, we
will have no choice but to intervene. I would do so now to ad-
dress the problem caused by our language in Black.
***
The decisions in these cases—and the split among state courts
of last resort—resulted from the lack of clarity in Black. Be-
cause the Court should squarely decide whether the Constitution
permits States to criminalize threats of violence made in reckless
disregard of causing fear, I respectfully dissent from the denial
of certiorari.
No. 19–1097. Enzo Life Sciences, Inc. v. Becton, Dickin-
son & Co. et al. C. A. Fed. Cir. Certiorari denied. Justice
Alito took no part in the consideration or decision of this peti-
tion. Reported below: 780 Fed. Appx. 903.

ORDERS 1013
591 U. S.
J
une 22, 25, 26, 2020
No. 19–8506. Ward v. United States. C. A. 3d Cir. Certio-
rar
i denied. Justice Alito took no part in the consideration or
decision of this petition.
No. 19–8540. Spencer et al. v. United States. C. A. 8th
Cir. Certiorari before judgment denied.
No. 19–8548. Harrison v. United States. C. A. 10th Cir.
Certiorari denied. Justice Gorsuch took no part in the consid-
eration or decision of this petition. Reported below: 785 Fed.
Appx. 534.
Rehearing Denied
No. 18–9554. In re Allen, 590 U. S. 941;
No. 19–955. Hirshauer v. AQ Holdings, LLC, et al., 589
U. S. 1295;
No. 19–6961. Navarro v. United States, 589 U. S. 1184;
No. 19–7349. Osornio v. Supreme Court of the United
States et al., 589 U. S. 1282;
No. 19–7405. Grant v. Williams, 589 U. S. 1296;
No. 19–7461. Cheeks v. Joyner, 589 U. S. 1297;
No. 19–7576. Davis v. Angleton Independent School Dis-
trict et al., 589 U. S. 1298;
No. 19 –7749. Bridges v. Gray, Warden, 589 U. S. 1288;
and
No. 19–8148. Cole v. United States, 590 U. S. 927. Peti-
tions for rehearing denied.
June 25, 2020
Miscellaneous Order
No. 19A1054. Thompson et al. v. DeWine, Governor of
Ohio, et al. C. A. 6th Cir. Application to vacate stay, pre-
sented to Justice Sotomayor, and by her referred to the
Court, denied.
June 26, 2020
Miscellaneous Order
No. 19A1055. Texas Democratic Party et al. v. Abbott,
Governor of Texas, et al. C. A. 5th Cir. Application to va-
cate stay, presented to Justice Alito, and by him referred to
the Court, denied.

1014 OCTOBER
TERM, 2019
June 26, 29, 2020 591 U. S.
Statement of Justice Sotomayor respecting the denial of ap-
pl
ication to vacate stay.
This application raises weighty but seemingly novel questions
regarding the Twenty-sixth Amendment. I do not disagree with
the decision to refrain from addressing them for the frst time
here, in the context of an emergency application to vacate a stay
of an injunction. But I hope that the Court of Appeals will con-
sider the merits of the legal issues in this case well in advance
of the November election.
June 29, 2020
Certiorari Dismissed
No. 19–8585. Jackson v. United States. C. A. 7th Cir. Mo-
tion of petitioner for leave to proceed in forma pauperis denied,
and certiorari dismissed. See this Court's Rule 39.8.
Miscellaneous Orders
No. 19A1045. Bugarenko v. Barr, Attorney General.
Application for stay of removal, addressed to Justice Sotomayor
and referred to the Court, denied.
No. 19M149. Schubert v. United States. Motion to direct
the Clerk to fle petition for writ of certiorari out of time denied.
No. 19–1039. PennEast Pipeline Co., LLC v. New Jersey
et al. C. A. 3d Cir.; and
No. 19–1143. FMC Corp. v. Shoshone-Bannock Tribes.
The Solicitor General is invited to fle briefs in these cases ex-
pressing the views of the United States.
No. 19–7905. Arunachalam v. Exxon Mobil Corp. C. A.
5th Cir. Motion of petitioner for reconsideration of order denying
leave to proceed in forma pauperis [590 U. S. 940] denied.
No. 19–7910. Arunachalam v. Intuit, Inc. C. A. 5th Cir.
Motion of petitioner for reconsideration of order denying leave to
proceed in forma pauperis [590 U. S. 940] denied.
No. 19–8029. Arunachalam v. Lyft, Inc. C. A. 5th Cir.
Motion of petitioner for reconsideration of order denying leave to
proceed in forma pauperis [590 U. S. 941] denied. The Chief
Justice took no part in the consideration or decision of this
motion.

ORDERS 1015
591 U. S.
J
une 29, 2020
No. 19–8059. Arunachalam v. Uber Technologies, Inc.
C
. A. 5th Cir. Motion of petitioner for reconsideration of order
denying leave to proceed in forma pauperis [590 U. S. 957]
denied.
No. 19–8374. In re Sims. Motion of petitioner for leave to
proceed in forma pauperis denied. Petitioner is allowed until
July 20, 2020, within which to pay the docketing fee required by
this Court's Rule 38(a).
No. 19–8626. In re DeCarlo. Motion of petitioner for leave
to proceed in forma pauperis denied, and petition for writ of
habeas corpus dismissed. See this Court's Rule 39.8.
Certiorari Denied
No. 18–1469. Department of Homeland Security et al.
v. Casa de Maryland et al. C. A. 4th Cir. Certiorari denied.
Reported below: 924 F. 3d 684.
No. 19–185. Mutond et al. v. Lewis. C. A. D. C. Cir. Cer-
tiorari denied. Reported below: 918 F. 3d 142.
No. 19–638. N. B. D. v. Kentucky Cabinet for Health and
Family Services. Sup. Ct. Ky. Certiorari denied.
No. 19– 673. Luna-Garcia v. Barr, Attorney General.
C. A. 5th Cir. Certiorari denied. Reported below: 932 F. 3d 285.
No. 19–814. McCoy v. United States. C. A. 4th Cir. Cer-
tiorari denied. Reported below: 773 Fed. Appx. 164.
No. 19–874. Pesnell et al. v. Sessions et al. Ct. App.
La., 2d Cir. Certiorari denied. Reported below: 52,646 (La.
App. 2 Cir. 5/22/19), 274 So. 3d 697.
No. 19–933. Monex Deposit Co. et al. v. Commodity Fu-
tures Trading Commission. C. A. 9th Cir. Certiorari denied.
Reported below: 931 F. 3d 966.
No. 19–975. Center for Biological Diversity et al. v.
Wolf, Acting Secretary of Homeland Security, et al.
D. C. D. C. Certiorari denied.
No. 19 –1022. Mat thews v. Barr, At torney General.
C. A. 2d Cir. Certiorari denied.

1016 OCTOBER
TERM, 2019
June 29, 2020 591 U. S.
No. 19–1035. Rose v. Select Portfolio Servicing, Inc.,
et
al. C. A. 5th Cir. Certiorari denied. Reported below: 945
F. 3d 226.
No. 19–1059. Hamm et vir v. Tennessee. Sup. Ct. Tenn.
Certiorari denied. Reported below: 589 S. W. 3d 765.
No. 19–1082. Linder v. United States. C. A. 7th Cir. Cer-
tiorari denied. Reported below: 937 F. 3d 1087.
No. 19–1087. Hallinan v. United States. C. A. 3d Cir.
Certiorari denied. Reported below: 787 Fed. Appx. 81.
No. 19–1100. Cropper v. Arizona. Super. Ct. Ariz., Mari-
copa County. Certiorari denied.
No. 19–1115. American Bankers Assn. v. National Credit
Union Administration. C. A. D. C. Cir. Certiorari denied.
Reported below: 934 F. 3d 649.
No. 19–1121. Welsh v. Fort Bend Independent School
District. C. A. 5th Cir. Certiorari denied. Reported below:
941 F. 3d 818.
No. 19–1123. Lech et al. v. Jackson, Chief of Police,
Greenwood Village, Colorado, et al. C. A. 10th Cir. Cer-
tiorari denied. Reported below: 791 Fed. Appx. 711.
No. 19–1124. Chrimar Systems, Inc., dba CMS Technolo-
gies, Inc., et al. v. Ale USA Inc. et al. C. A. Fed. Cir.
Certiorari denied. Reported below: 785 Fed. Appx. 854.
No. 19–1145. Ng Lap Seng v. United States. C. A. 2d Cir.
Certiorari denied. Reported below: 934 F. 3d 110.
No. 19–1154. Robinson Nursing and Rehabilitation Cen-
ter, LLC, et al. v. Phillips, as Personal Representative
of the Estate of Phillips, et al. Sup. Ct. Ark. Certiorari
denied. Reported below: 2019 Ark. 305, 586 S. W. 3d 624.
No. 19–1158. Airbus Helicopters, Inc. v. Riggs et al.
C. A. 9th Cir. Certiorari denied. Reported below: 939 F. 3d 981.
No. 19–1166. Dine Citizens Against Ruining Our Envi-
ronment et al. v. Bureau of Indian Affairs et al. C. A.
9th Cir. Certiorari denied. Reported below: 932 F. 3d 843.

ORDERS 1017
591 U. S.
J
une 29, 2020
No. 19–1195. Palacios-Solis v. United States. C. A. 11th
Cir
. Certiorari denied. Reported below: 949 F. 3d 567.
No. 19–1214. Friend v. Indiana. Ct. App. Ind. Certiorari
denied. Reported below: 134 N. E. 3d 441.
No. 19–1244. Johnson v. Storix, Inc. C. A. 9th Cir. Certio-
rari denied. Reported below: 792 Fed. Appx. 501.
No. 19–1249. Davis v. Echo Valley Condominium Assn.
et al. C. A. 6th Cir. Certiorari denied. Reported below: 945
F. 3d 483.
No. 19–1250. Clark v. Celebrity Cruises, Inc., et al.
Dist. Ct. App. Fla., 3d Dist. Certiorari denied. Reported below:
271 So. 3d 1169.
No. 19–1263. Thompson v. Chicago Board of Education
et al. C. A. 7th Cir. Certiorari denied. Reported below: 790
Fed. Appx. 811.
No. 19–1268. Springer et al. v. Wells Fargo Bank, N. A.,
et al. C. A. 11th Cir. Certiorari denied. Reported below: 784
Fed. Appx. 721.
No. 19–1270. Fodge et al. v. Trustmark National Bank
et al. C. A. 5th Cir. Certiorari denied. Reported below: 945
F. 3d 880.
No. 19–1274. Arnold v. Slatery, Attorney General of
Tennessee. C. A. 6th Cir. Certiorari denied.
No. 19–1275. Thomas v. Blocker et al. C. A. 3d Cir. Cer-
tiorari denied. Reported below: 799 Fed. Appx. 131.
No. 19–1308. Morello et al. v. Seaway Crude Pipeline
Co., LLC. Ct. App. Tex., 1st Dist. Certiorari denied. Re-
ported below: 585 S. W. 3d 1.
No. 19–1333. Monster Energy Co., fka Hansen Beverage
Co. v. City Beverages LLC, dba Olympic Eagle Distribut-
ing. C. A. 9th Cir. Certiorari denied. Reported below: 940
F. 3d 1130.
No. 19–1345. Butcher v. Vishniac. Sup. Jud. Ct. Mass.
Certiorari denied. Reported below: 483 Mass. 742, 136 N. E. 3d
719.

1018 OCTOBER
TERM, 2019
June 29, 2020 591 U. S.
No. 19 –7487. Blades v. United States. Ct. App. D. C.
Cer
tiorari denied. Reported below: 200 A. 3d 230.
No. 19–7603. Jensen v. Pollard. C. A. 7th Cir. Certiorari
denied. Reported below: 924 F. 3d 451.
No. 19–7674. Clark v. Lindsay, Warden. C. A. 6th Cir.
Certiorari denied. Reported below: 936 F. 3d 467.
No. 19–7753. Pineda-Fernandez v. United States. C. A.
5th Cir. Certiorari denied. Reported below: 785 Fed. Appx. 252.
No. 19 –7780. Harper v. United States. C. A. 6th Cir.
Certiorari denied. Reported below: 792 Fed. Appx. 385.
No. 19–7821. Cantu-Siguero v. United States (Reported
below: 794 Fed. Appx. 424); Gomez-Lopez, aka Antonio Truji-
llo, aka Escalante v. United States (789 Fed. Appx. 494);
Gutierrez-Murillo v. United States (793 Fed. Appx. 302);
Hernandez Castellanos v. United States (792 Fed. Appx.
352); Palacios Guevara v. United States (791 Fed. Appx. 508);
Palomeque-Ramos, aka Lopez v. United States (791 Fed.
Appx. 501); Vargos Castro v. United States (791 Fed. Appx.
507); Zarate-Hernandez v. United States (792 Fed. Appx.
336); and Trevino-Villarreal v. United States (793 Fed.
Appx. 353). C. A. 5th Cir. Certiorari denied.
No. 19–7996. Mayorga v. United States. C. A. 5th Cir.
Certiorari denied. Reported below: 787 Fed. Appx. 263.
No. 19– 8043. Steward v. United States. C. A. 4th Cir.
Certiorari denied. Reported below: 793 Fed. Appx. 188.
No. 19–8045. Mata v. Nebraska. Sup. Ct. Neb. Certiorari
denied. Reported below: 304 Neb. 326, 934 N. W. 2d 475.
No. 19–8061. Weixing Wang v. Marcotte. Sup. Ct. N. H.
Certiorari denied.
No. 19– 8090. Smith v. Nevada. Sup. Ct. Nev. Certiorari
denied. Reported below: 135 Nev. 718, 449 P. 3d 460.
No. 19–8107. Guzman-Ibarez v. United States. C. A. 9th
Cir. Certiorari denied. Reported below: 789 Fed. Appx. 588.
No. 19–8175. Powell v. Nevada. Sup. Ct. Nev. Certiorari
denied. Reported below: 135 Nev. 702, 448 P. 3d 552.

ORDERS 1019
591 U. S.
J
une 29, 2020
No. 19–8192. Bejarano v. Gittere, Warden, et al. Sup.
Ct.
Nev. Certiorari denied. Reported below: 135 Nev. 613, 448
P. 3d 551.
No. 19–8239. Ybarra v. Gittere, Warden, et al. Sup. Ct.
Nev. Certiorari denied. Reported below: 135 Nev. 740, 448
P. 3d 551.
No. 19 – 8317. Taebel v. Ducey, Governor of Arizona,
et al. C. A. 9th Cir. Certiorari denied.
No. 19–8330. Spataru v. Florida Department of Trans-
portation et al. Dist. Ct. App. Fla., 3d Dist. Certiorari de-
nied. Reported below: 275 So. 3d 248.
No. 19–8335. Willoughby v. Hart, Warden. C. A. 6th Cir.
Certiorari denied. Reported below: 786 Fed. Appx. 506.
No. 19–8346. Jones v. Capozza, Superintendent, State
Correctional Institution at Fayette, et al. C. A. 3d Cir.
Certiorari denied.
No. 19–8347. Daniels v. Virginia. Sup. Ct. Va. Certiorari
denied.
No. 19 – 8348. Kehano v. Harrington, Warden, et al.
C. A. 9th Cir. Certiorari denied. Reported below: 787 Fed.
Appx. 964.
No. 19–8349. Charest v. Stankoski, Judge, Circuit Court
of Alabama, Baldwin County. Sup. Ct. Ala. Cer ti orari
denied.
No. 19–8352. K. S. v. Price et al. Super. Ct. Pa. Certiorari
denied. Reported below: 222 A. 3d 817.
No. 19–8354. Romero v. Davis, Director, Texas Depart-
ment of Criminal Justice, Correctional Institutions Divi-
sion. C. A. 5th Cir. Certiorari denied.
No. 19–8355. Ray v. Stitt, Governor of Oklahoma. Ct.
Civ. App. Okla. Certiorari denied.
No. 19–8356. Logan et al. v. Logan. Ct. App. Tex., 2d Dist.
Certiorari denied.
No. 19–8357. Lout v. Montana. Sup. Ct. Mont. Certiorari
denied. Reported below: 398 Mont. 447, 455 P. 3d 457.

1020 OCTOBER
TERM, 2019
June 29, 2020 591 U. S.
No. 19–8358. Meads v. Illinois. App. Ct. Ill., 4th Dist.
Cer
tiorari denied. Reported below: 2019 IL App (4th) 170229–U.
No. 19–8359. Phillips v. Sherman, Warden. C. A. 9th Cir.
Certiorari denied.
No. 19–8367. Coleman v. Texas. Ct. Crim. App. Tex. Cer-
tiorari denied.
No. 19–8368. Gittens v. Transforce, Inc. C. A. 4th Cir.
Certiorari denied. Reported below: 785 Fed. Appx. 168.
No. 19–8370. Fisher v. Walgreen Co. C. A. 4th Cir. Cer-
tiorari denied. Reported below: 780 Fed. Appx. 61.
No. 19–8372. Ismaiyl v. Nugent. C. A. 6th Cir. Certiorari
denied.
No. 19–8373. Roque v. Arizona. Ct. App. Ariz. Certiorari
denied.
No. 19– 8377. Knight v. Monterey County, California.
C. A. 9th Cir. Certiorari denied.
No. 19–8395. Gakuba v. O’Brien et al. C. A. 7th Cir. Cer-
tiorari denied.
No. 19–8397. Lockhart v. North Carolina. Sup. Ct. N. C.
Certiorari denied.
No. 19–8402. Pacchiana v. Florida. Sup. Ct. Fla. Certio-
rari denied. Reported below: 289 So. 3d 857.
No. 19–8406. Shahaddah v. Gotcher et al. C. A. 4th Cir.
Certiorari denied. Reported below: 792 Fed. Appx. 277.
No. 19–8408. McPherson v. Tompkins Trust Co. et al.
C. A. 2d Cir. Cer ti orar i denied. Reported below: 792 Fed.
Appx. 142.
No. 19–8410. Pinney v. Payne, Director, Arkansas Divi-
sion of Correction. C. A. 8th Cir. Certiorari denied.
No. 19–8417. Stone v. Kentucky. Sup. Ct. Ky. Certiorari
denied.
No. 19–8426. Twitty v. Indiana. Ct. App. Ind. Certiorari
denied. Reported below: 138 N. E. 3d 974.

ORDERS 1021
591 U. S.
J
une 29, 2020
No. 19–8497. Lyman v. Kansas. Sup. Ct. Kan. Certiorari
denied.
Reported below: 311 Kan. 1, 455 P. 3d 393.
No. 19–8520. Mohn v. Progressive Insurance. C. A. 10th
Cir. Certiorari denied. Reported below: 802 Fed. Appx. 391.
No. 19–8523. James v. United States. C. A. 5th Cir. Cer-
tiorari denied. Reported below: 800 Fed. Appx. 290.
No. 19–8524. Coker v. United States. C. A. 4th Cir. Cer-
tiorari denied. Reported below: 794 Fed. Appx. 341.
No. 19–8525. Gabriel Diaz v. United States. C. A. 9th Cir.
Certiorari denied. Reported below: 792 Fed. Appx. 491.
No. 19–8542. Brown v. Nevada et al. C. A. 9th Cir. Cer-
tiorari denied. Reported below: 798 Fed. Appx. 76.
No. 19–8555. Troiano v. United States. C. A. 9th Cir.
Certiorari denied.
No. 19–8557. Dorsett v. United States. C. A. 3d Cir.
Certiorari denied.
No. 19–8559. Jepsen v. United States. C. A. 8th Cir. Cer-
tiorari denied. Reported below: 944 F. 3d 1019.
No. 19–8562. Rosenblatt v. United States. C. A. 5th Cir.
Certiorari denied. Reported below: 788 Fed. Appx. 960.
No. 19–8563. Lee v. United States. C. A. 1st Cir. Certio-
rari denied.
No. 19–8564. Ojeda v. United States. C. A. 2d Cir. Cer-
tiorari denied. Reported below: 951 F. 3d 66.
No. 19–8566. Thompson v. United States. C. A. 4th Cir.
Certiorari denied. Reported below: 794 Fed. Appx. 350.
No. 19–8567. Taylor v. United States. C. A. 9th Cir. Cer-
tiorari denied. Reported below: 789 Fed. Appx. 52.
No. 19–8568. Thorpe v. United States. C. A. 4th Cir.
Certiorari denied. Reported below: 803 Fed. Appx. 691.
No. 19–8569. Wilson v. United States. C. A. 7th Cir. Cer-
tiorari denied.
No. 19–8570. Vega v. United States. C. A. 11th Cir. Cer-
tiorari denied. Reported below: 794 Fed. Appx. 918.

1022 OCTOBER
TERM, 2019
June 29, 2020 591 U. S.
No. 19–8572. Chambers v. United States. C. A. 5th Cir.
Cer
tiorari denied. Reported below: 788 Fed. Appx. 993.
No. 19–8576. Robinson v. United States. C. A. 4th Cir.
Certiorari denied. Reported below: 785 Fed. Appx. 200.
No. 19–8579. Davis v. United States. C. A. 9th Cir. Cer-
tiorari denied. Reported below: 785 Fed. Appx. 374.
No. 19–8582. Edwards v. United States. C. A. 11th Cir.
Certiorari denied.
No. 19–8584. Kidd v. United States. C. A. 5th Cir. Certio-
rari denied. Reported below: 796 Fed. Appx. 221.
No. 19–8586. Ramirez v. United States. C. A. 8th Cir.
Certiorari denied. Reported below: 782 Fed. Appx. 521.
No. 19 – 8589. Acosta v. United States. C. A. 11th Cir.
Certiorari denied.
No. 19–8603. White v. Internal Revenue Service. C. A.
4th Cir. Certiorari denied. Reported below: 785 Fed. Appx. 168.
No. 19–1026. Ford Motor Co. v. United States. C. A. Fed.
Cir. Motion of American Association of Exporters and Importers
for leave to fle brief as amicus curiae granted. Certiorari de-
nied. Reported below: 926 F. 3d 741.
No. 19–1251. Armstrong v. School District of Philadel-
phia et al. C. A. 3d Cir. Certiorari denied. Justice Alito
took no part in the consideration or decision of this petition.
No. 19–1259. Loumiet v. United States et al. C. A. D. C.
Cir. Certiorari denied. Justice Kavanaugh took no part in
the consideration or decision of this petition. Reported below:
948 F. 3d 376.
No. 19–1348 (19A1050). Bourgeois et al. v. Barr, Attor-
ney General, et al. C. A. D. C. Cir. Application for stay of
mandate pending disposition of the petition for writ of certiorari,
presented to The Chief Justice and referred to the Court, de-
nied. Certiorari denied. Justice Ginsburg and Justice Soto-
mayor would grant the application and the petition for writ of
certiorari. Reported below: 955 F. 3d 106.

ORDERS 1023
591 U. S.
J
une 29, 2020
No. 19–8350. Desmond v. Delaware. C. A. 3d Cir. Certio-
rar
i denied. Justice Alito took no part in the consideration or
decision of this petition. Reported below: 792 Fed. Appx. 241.
Rehearing Denied
No. 19–6483. Robinson v. Mason, Superintendent, State
Correctional Institution at Retreat, 589 U. S. 1147;
No. 19–6963. Prenatt v. Inch, Secretary, Florida De-
partment of Corrections, et al., 589 U. S. 1216;
No. 19–7337. Palmer v. United States, 589 U. S. 1228;
No. 19–7556. Jacobs v. Maricopa Integrated Health Care
System, 589 U. S. 1307;
No. 19–7644. Jones v. Grifth, Warden, 589 U. S. 1308;
No. 19–7673. El Bey, fka Warren v. Weaver et al., 590
U. S. 908;
No. 19–7678. El Bey, fka Warren v. Doughtery County
State Court et al., 590 U. S. 909;
No. 19–7679. Brownlee v. Hearns et al., 589 U. S. 1308;
No. 19–7693. Mills v. Saul, Commissioner of Social Secu-
rity, 590 U. S. 931;
No. 19–7697. Lovell v. Children’s Corner Daycare, 589
U. S. 1287;
No. 19–7701. Kerns v. Wenner, 590 U. S. 924;
No. 19–7702. Jackson v. Berean et al., 590 U. S. 924;
No. 19–7727. In re Davis, 590 U. S. 922;
No. 19–7968. Ndoromo v. Barr, Attorney General, et al.,
590 U. S. 947;
No. 19–8011. Dellinger v. Tennessee, 590 U. S. 948; and
No. 19 – 8067. Mohammed v. DuPage Legal Assistance
Foundation et al., 590 U. S. 926. Petiti ons for rehear ing
denied.
No. 19–7625. Swinton v. Florida, 589 U. S. 1286. Motion for
leave to fle petition for rehearing denied.