Page:United States v. Texas (2023).pdf/60

18 Branch’s … enforcement choices” regarding third parties.

Just last Term in Biden v. Texas, two States argued that their spending on the issuance of driver’s licenses and the provision of healthcare for illegal immigrants sufficed to establish Article III standing and thus enabled them to sue to compel enforcement of a detain-or-return mandate. See Texas v. Biden, 20 F. 4th 928, 970–971 (CA5 2021). The Court of Appeals held that the States had standing, ibid., and the majority in this Court, despite extended engagement with other jurisdictional questions, never hinted that Article III precluded the States’ suit. 597 U. S., at ___–___ (slip op., at 8–12).

If the new rule adopted by the Court in this case is sound, these decisions and others like them were all just wasted ink. I understand that what we have called “ ‘drive-by jurisdictional rulings’ ” are not precedents, see Arbaugh v. Y & H Corp., 546 U. S. 500, 511 (2006), but the Court should not use a practice of selective silence to accept or reject prominently presented standing arguments on inconsistent grounds.

Examination of the precedents the majority invokes only underscores the deficiencies in its analysis. The majority says that the “leading precedent” supporting its holding is Linda R. S. v. Richard D., 410 U. S. 614 (1973). But as notes, this Court has already definitively explained that the suit to compel prosecution in Linda R. S. was rejected “because of the unlikelihood that