Alito, J., dissenting
Judiciary. And it renders States already laboring under the effects of massive illegal immigration even more helpless.
Our Constitution gives the President important powers, and the precise extent of some of them has long been the subject of contention, but it has been widely accepted that “the President’s power reaches ‘its lowest ebb’ when he contravenes the express will of Congress, ‘for what is at stake is the equilibrium established by our constitutional system.’ ” Zivotofsky v. Kerry, 576 U. S. 1, 61 (2015) (Roberts, C. J., dissenting) (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 637–638 (1952) (Jackson, J., concurring)).
That is the situation here. To put the point simply, Congress enacted a law that requires the apprehension and detention of certain illegal aliens whose release, it thought, would endanger public safety. The Secretary of DHS does not agree with that categorical requirement. He prefers a more flexible policy. And the Court’s answer today is that the Executive’s policy choice prevails unless Congress, by withholding funds, refusing to confirm Presidential nominees, threatening impeachment and removal, etc., can win a test of strength. Relegating Congress to these disruptive measures radically alters the balance of power between Congress and the Executive, as well as the allocation of authority between the Congress that enacts a law and a later Congress that must go to war with the Executive if it wants that law to be enforced.[1]
- ↑ The majority suggests that any law that constrains an Executive’s “enforcement discretion” is “highly unusual,” and notes that the States cite no “similarly worded federal laws” that “require the Executive Branch to make arrests or bring prosecutions” in other, non-immigration contexts. Ante, at 12. But there is nothing peculiar about Congress’s reserving its mandates for an area—immigration—where it both exercises particularly broad authority, Fiallo v. Bell, 430 U. S. 787, 792 (1977), and identifies a unique “wholesale failure” by the enforcement authority, Demore v. Kim, 538 U. S. 510, 518 (2003).
