Alito, J., dissenting
F. 4th 846, 859 (CA5 2022) (“The default rule is that vacatur is the appropriate remedy” under the APA); United Steel v. Mine Safety and Health Admin., 925 F. 3d 1279, 1287 (CADC 2019) (“The ordinary practice is to vacate unlawful agency action”).[1] We did not grant review on this very consequential question, and I would not reach out to decide it in a case in which Biden v. Texas resolves the issue of redressability.
To be clear, I would be less troubled than I am today if Justice Gorsuch’s concurrence had commanded a majority. At least then, Congress would be free to amend §1252(f). But the majority reaches out and redefines our understanding of the constitutional limits on otherwise-available lawsuits. It is to this misunderstanding that I now turn.
III
The majority adopts the remarkable rule that injuries from an executive decision not to arrest or prosecute, even in a civil case, are generally not “cognizable.” Ante, at 4 (internal quotation marks omitted). Its reasoning has three failings. First, it fails to engage with contrary precedent that is squarely on point. Second, it lacks support in the cases on which it relies. Third, the exceptions (or possible exceptions) that it notes do nothing to allay concern about the majority’s break from our established test for Article III standing. I address each of these problems in turn.
- ↑ Our decision three years ago in Department of Homeland Security v. Regents of Univ. of Cal., 591 U. S. ___ (2020), appears to have assumed that the APA authorizes this common practice. We held that the rescission of the Deferred Action for Childhood Arrivals program had to be “vacated” because DHS had violated the procedures required by the APA. Id., at ___ (slip op., at 2). If the court in that case had lacked the authority to set aside the rule adopting the program, there would have been no need to examine the sufficiency of DHS’s procedures.
