Page:United States v. Texas (2023).pdf/39

Rh Second, even granting the broad principle the Court takes from Linda R. S., I doubt that it applies with full force in this case. Unlike the plaintiff in Linda R. S., the States do not seek the prosecution of any particular individual—or even any particular class of individuals. See ASARCO Inc. v. Kadish, 490 U. S. 605, 624 (1989) (“[F]ederal standing ‘often turns on the nature and source of the claim asserted’ ”). In fact, they disclaim any interest in the prosecution or nonprosecution of noncitizens. See Brief for Respondents 15; Tr. of Oral Arg. 124–125. They acknowledge that 8 U. S. C. §1226(c)(1)’s detention obligation “only applies until” the Government makes “a decision whether or not to prosecute.” Tr. of Oral Arg. 100. And they readily concede that if the Government decides not to prosecute, any detention obligation imposed by §1226(c)(1) “immediately ends.” Ibid. The States make similar concessions with respect to §1231(a)(2). They maintain, for example, that §1231(a)(2) applies “only where the United States has used its prosecutorial discretion to bring a notice to appear, to prosecute that all the way to a final … order of removal.” Id., at 130. But if the Government for any reason “choose[s] to discontinue proceedings,” the alleged detention obligation does not attach. Id., at 131.

The upshot is that the States do not dispute that the Government can prosecute whomever it wants. They seek, instead, the temporary detention of certain noncitizens during elective removal proceedings of uncertain duration. And the States’ desire to remove the Guidelines’ influence on the Government’s admittedly broad discretion to enforce immigration law meaningfully differs from the Linda R. S. plaintiff’s desire to channel prosecutorial discretion toward a particular target. Given all of this, I would not treat Linda R. S. as the “leading precedent” for resolving this case. In my view, the Court is striking new ground rather than applying settled principles.