Page:United States v. Texas (2023).pdf/58

16 police its borders and regulate the entry of aliens. The Constitution and federal immigration laws have taken away most of that power, but the statutory provisions at issue in this case afford the State at least some protection—in particular by preventing the State and its residents from bearing the costs, financial and non-financial, inflicted by the release of certain dangerous criminal aliens. Our law on standing should not deprive the State of even that modest protection. We should not treat Texas less favorably than Massachusetts. And even if we do not view Texas’s standing argument with any “special solicitude,” we should at least refrain from treating it with special hostility by failing to apply our standard test for Article III standing.

Despite the clear parallel with this case and the States’ heavy reliance on Massachusetts throughout their briefing, the majority can only spare a passing footnote for that important precedent. ; see Brief for Respondents 11, 12, 14, 16–18, 23; see also Brief for Arizona and 17 Other States as Amici Curiae 7–12. It first declines to say Massachusetts was correctly decided and references the “disagreements that some may have” with that decision. Ante, at 13, n. 6. But it then concludes that Massachusetts “does not control” since the decision itself refers to “ ‘key differences between a denial of a petition for rulemaking and an agency’s decision not to initiate an enforcement action,’ ” with the latter “ ‘not ordinarily subject to judicial review.’ ” Ante, at 13, n. 6 (quoting 549 U. S., at 527) (emphasis added).

The problem with this argument is that the portion of Massachusetts to which the footnote refers deals not with its key Article III holding, but with the scope of review that is “ordinarily” available under the statutory scheme. Importantly, Massachusetts frames its statement about declining enforcement as restating the rule of Heckler v. Chaney, 470 U. S. 821 (1985). See 549 U. S., at 527. And