Justice Kavanaugh's decision in United States v. Texas does not cohere on many levels. Worse, the decision can only be understood as some sort of middling compromise to avoid revisiting Massachusetts v. EPA and national vacaturs under Section 706. (Jon Adler and Mike Dorf have more on these issues). Is U.S. v. Texas a ticket good for one ride, and one ride only? Part II-C of the majority opinion identifies five areas where the courts may "entertain cases involving the Executive Branch's alleged failure to make more arrests or bring more prosecutions." The third point may have some relevance for the never-ending DACA litigation.
Third, the standing calculus might change if the Executive Branch wholly abandoned its statutory responsibilities to make arrests or bring prosecutions. Under the Administrative Procedure Act, a plaintiff arguably could obtain review of agency non-enforcement if an agency "has consciously and expressly adopted a general policy that is so extreme as to amount to an abdication of its statutory responsibilities." Heckler, 470 U. S., at 833, n. 4 (internal quotation marks omitted); see id., at 839 (Brennan, J., concurring); cf. 5 U. S. C. §706(1). So too, an extreme case of non-enforcement arguably could exceed the bounds of enforcement discretion and support Article III standing. But the States have not advanced a Heckler-style"abdication" argument in this case or argued that the Executive has entirely ceased enforcing the relevant statutes. Therefore, we do not analyze the standing ramifications of such a hypothetical scenario.
This argument brings me back. For more than a decade, advocates have contended that DACA amounts to a wholesale abandonment of the immigration laws with respect to the Dreamers. Does DACA "exceed the bounds of enforcement discretion"? Usually, Heckler is understood as a merits question, rather than a standing question. But now, Justice Kavanaugh has seemed to merge, or at least conflate the inquiries. Justice Barrett pointed out this problem in her concurrence:
