The Supreme Court of the United States

In re: Executive Order 002: Reforms to Immigration Agencies.

Case №20–07 101 M.S.Ct. 118

Bsddc, J., delivered the judgement of the Court and an opinion, in which IAmATinman, C.J., and Ibney00, J. join. Reagan0, J., joins in sections I-IV of that opinion, and concurs in the judgement. Cheatem, J., concurring in part and dissenting in part, with whom JJEaglehawk, J., joins.*

I. Introduction

To describe this case is to decide it. The exact question before the Court is whether the President may unilaterally order an officer of the United States to entirely disregard a statutory mandate. We hold that he may not. The President may not end enforcement of immigration law in the United States any more than he may decline to enforce the entirety of the Clean Air Act.

This decision is not about politics, it is about the separation of powers.[1] No individual has the awesome power to unilaterally extinguish a law of the United States. But that’s precisely what § 1(a) of the Order does. The President has failed to take care that the law of the United States is faithfully executed — his fundamental obligation under the Constitution. We hold § 1(a) of the Order void. We sustain the remainder of the Order as it is not contrary to a statutory mandate.

II. Facts

Shortly after taking office, President ZeroOverZero101 issued Executive Order 2: Reforms to Immigration Agencies. The relevant text of the Order provides:

1. It is hereby ordered:

A. The US Immigrations and Customs Enforcement will cease all immigration related enforcement indefinitely, including, but not limited to, detainments and deportations.

B. The US Border Patrol will close down all detention centers and will cease patrols across the US border indefinitely.

Petitioner challenges sections 1(a) and 1(b) for violating either 8 U.S.C. § 1373 or the Take Care Clause of the Constitution. According to Petitioner, ICE has mandatory statutory duties that are abrogated by the Order, including information sharing, immigration enforcement, border patrol, and operation of detention centers.

The United States disagrees. First, Respondent argues that information sharing under § 1373 is not prohibited. Second, the government contends that the Order is within the executive’s prosecutorial discretion, which is absolute and beyond the review of this Court and the Order doesn’t stop all immigration proceedings. Finally, Respondent asserts that 1(b) is sound because there is no statutory mandate to operate detention facilities

Of the statutes presented in the case, the Court highlights two. 6 U.S.C. § 211 provides that the Commissioner of U.S. Customs and Border Protection shall “with U.S. Immigration and Customs Enforcement . . . enforce and administer all immigration laws . . . including . . . detection, interdiction, removal,” and “departure from the United States” those “who have recently unlawfully entered, the United States.”

8 U.S.C. § 1373 requires certain information sharing between officials related to immigration. It prohibits a “Federal, State, or local government entity” from restricting communications to or from “the Immigration and Naturalization Service” about information related to “citizenship or immigration status” of any individual. 8 U.S.C. § 1373(a). It also imposes an affirmative obligation to respond to inquiries related to immigration status. 8 U.S.C. § 1373(c).

III. Construction of the Order and Statutes

The Order and attendant statutes must be interpreted according to their plain textual meaning. If that meaning is ambiguous, only then will we resort to additional canons of interpretation. See Horizon Lines v. President Bigg-boss, Case Nos. 17–07, 17–08, 101 M.S. Ct. 103 (2017) (Bsddc, J., concurring); In re: Public Law 98 (High Frequency Trading Regulation Act), Case №16–09, 100 M.S. Ct. 119 (2016); In re: Public Law B.137 (Gang Activity Prevention Act) Case №16–10, 100 M.S. Ct. 115 (2016).

Respondent is correct; when interpreting actions of co-equal branches, we presume they intended to act constitutionally. So when faced with two equally plausible interpretations, if “one interpretation would be unconstitutional, while the other is constitutionally sound, we would assume that Congress intended the laws they pass to be constitutional, and thus that meaning was Congress’s likely intent.” Gang Activity Prevention Act, supra.

The text of the Order is clear. It ceases “all immigration related enforcement” by ICE “indefinitely.” Order § 1(a). It likewise closes “down all detention centers” operated by the Border Patrol and ends “patrols across the US border indefinitely.” Order § 1(b). The plain meaning resolves our interpretation. We do not need to invoke any other canon when the meaning of the Order is apparent from the text.[2]

Are the statutes implicated by this meaning? One is; the other isn’t. As discussed, 8 U.S.C. § 1373 relates to information sharing. Section 1(a) of the Order prohibits immigration enforcement activities. To “enforce” is “to give force to” or “to carry out effectively.” “Enforce,” Merriam-Webster Online Dictionary (last accessed July 24, 2020). That is a different activity from the prohibition on restricting information sharing with INS under § 1373. We find that the communication obligations under 8 U.S.C. § 1373 are not reached by the President’s Order to halt enforcement activities. Accordingly, § 1373 does not conflict with the Order, and we find for the Respondent on this issue.

Section 211 is different. It requires ICE to work with the Commissioner to enforce immigration laws, specifically, the interdiction and removal of illegal aliens. 6 U.S.C. § 211.

So construed, we have a clear conflict between § 211 and the Order. The law of the United States tells ICE to interdict and remove illegal aliens. The Order tells them to refrain from doing that indefinitely. Because of this clear conflict, we must determine whether the President’s order can be sustained in the face of a statutory mandate to the contrary under the Take Care Clause.

It cannot.

IV. The Take Care Clause and Prosecutorial Discretion

The president must “take care that the laws be faithfully executed.” U.S. Const. art. II. It is beyond dispute that this clause obligates the President “to avail himself of every appropriate means not forbidden by law” to enforce the law of the United States. United States v. Tingy, 30 U.S. 115 (1831).

There is a corresponding prohibition on ordering an officer of the United States to refrain from enforcing the law. Marbury v. Madison, 5 U.S. 137 (1803) (“This is not a proceeding which may be varied if the judgment of the Executive shall suggest one more eligible, but is a precise course accurately marked out by law, and is to be strictly pursued. It is the duty of the Secretary of State to conform to the law, and in this he is an officer of the United States, bound to obey the laws.”).

Now we come to the most important part of the case — prosecutorial discretion. Respondent is absolutely correct that prosecutorial discretion receives absolute deference from this Court. Heckler v. Chaney, 470 U.S. 821, 831 (1985).

For that reason, as part of the discretion in carrying out executive duties, “an illegal entrant might be granted federal permission to continue to reside in this country.” Pyler v. Doe, 457 U.S. 202, 226 (1982). Sometimes removal may not even be considered at all. Arizona v. United States, 567 U.S. 387, 396 (2012). Moreover, the executive branch has broad discretion to shape policies to identify illegal entrants who should be removed and those who should not.

But Respondent’s reliance on Heckler is not concrete. In Heckler we expressly set aside the “situation where it could justifiably be found that the agency has ‘consciously and expressly adopted a general policy’ that is so extreme as to amount to an abdication of its statutory responsibilities.” Heckler, supra.

Those words of caution in Heckler are not unique. We have repeatedly explained that wholesale non-enforcement is apart from prosecutorial discretion. Dunlop v. Bachowski, 421 U.S. 560 (1975) (“The Secretary himself suggests that the rare case that might justify review beyond the confines of the reasons statement might arise, for example, “if the Secretary were to declare that he no longer would enforce Title IV, or otherwise completely abrogate his enforcement responsibilities . . . .”).

The protection afforded to prosecutorial discretion is a result of “[i]ndividual isolated nonenforcement decisions,” not policies of non-enforcement. See Heckler, supra at 839 (Brennan, J., concurring); see also Crowley Caribbean Transportation v. Pena, 37 F.3d 671, 676 (D.C. Cir. 1994). We presume that the executive will fulfill their duty to faithfully enforce the law, and thus permit the breathing room of prosecutorial discretion. That presumption is erased when a blanket non-enforcement policy is put in place.

A policy of non-enforcement is, by definition, not discretionary. It thus receives none of the protection afforded to prosecutorial discretion decisions. See, e.g., Nader v. Saxbe, 497 F.2d 676, 679 n.19 (D.C. Cir. 1974) (“It would seem to follow that the exercise of prosecutorial discretion, like the exercise of Executive discretion generally, is subject to statutory and constitutional limits enforceable through judicial review.”).

Finally, it is notable that the executive branch agrees with this interpretation of the law, explaining “the individual prosecutorial decision is distinguishable from instances in which courts have reviewed the legality of general Executive Branch policies.” 8 U.S. Op. Off. Legal Counsel 101, 126 (O.L.C. 1984).

The Take Care Clause results in two principles: one of discretion and one of responsibility. The principle of discretion means that individual non-enforcement decisions in a particular case are (normally) beyond challenge in the courts. But the second principle imposes a duty of enforcement. And we hold that a complete abdication of that duty is reviewable in the courts of the United States.

V. Discussion

First, as a preliminary matter, we dispense with Respondent’s argument that the Order “does not halt all immigration proceedings.” That does not matter at all. ICE has a mandatory duty to engage in immigration enforcement. 6 U.S.C. § 211. Those duties were not modified by Pub. L. S.007, 2018. Further, we reject that possible funding issues of the immigration courts permit wholesale non-enforcement of immigration law.

For one, the duty to interdict would remain. And that’s beyond the fact that a liberal interpretation of the operative budget supports funding for immigration courts. In re: Executive Order 23, Case №20–08, 101 M.S. Ct. 117 (2020) (theorizing that funding for “truck nutz” could be found in the singular word “procurement”). If the word “procurement” means the Navy can buy sharks with laser beams, surely it means the immigration courts can be funded under the DOJ’s appropriation for administrative reviews (which immigration courts are) or under the civil division (which houses the Office of Immigration Litigation)[3]. No matter, the point is that funds exist, and hypothetical resource scarcity cannot serve as the basis for wholesale non-enforcement.[4]

Second, we must clarify precisely what this case is about. It is not about prosecutorial discretion. As the name suggests, prosecutorial discretion relates to whether or not prosecution (here removal) will take place. It’s a choice vested in the officers of the United States, necessitated by resource scarcity.

But here, the Order is not an action of prosecutorial discretion entitled to absolute deference from the courts. Prosecutorial discretion is, by its nature, limited to an individual person and individual case. Heckler, supra; Dunlop, supra. Of course policies can shape when that discretion should be exercised. But what the President may not do is eliminate that discretion and order the wholesale non-enforcement of a constitutional statute by a subordinate officer. Marbury, supra. Indeed, the Court is unaware of any case holding to the contrary.

It is easy to see why. And before we continue, let us be clear, the result in this case is not about immigration law. It is about something far more vital to our republic — the separation of powers. The President may not unilaterally extinguish a law, exactly what the Order does.

Otherwise the following would be completely permissible based on policy grounds:

• An order declining to enforce the Clean Air Act;
• An order that the FDA no longer needs to license prescription drugs;
• An order prohibiting all AUSAs from prosecuting murder.

The Dissent charges us with going “out of [our] way to search out a reason to declare the Executive Order” unconstitutional. To be clear, we are asking only whether the text of the Order is consistent with the text of the statute. That’s directly on our path, and certainly not “out of our way.”

It is the Dissent which strains to make its case.

It relies upon an atextual reading on the budget to conclude there is no funding for immigration courts to deport people. As discussed, that’s wrong and irrelevant. It is the text, not legislative history, that we rely on to interpret the budget. See In re: Executive Order 23, supra (JJEagleHawk, J.). The immigration courts have funding under a plain text reading of the budget.

It then concludes that deporting people without those courts is unconstitutional. Maybe, but that’s not the issue before the court. Not one person has raised their illegal deportation to this Court, so at best that’s a hypothetical argument.

And finally, the Dissent concludes that because hypothetical deportations in that hypothetical world where immigration courts lack funding under an incorrect interpretation of the budget would be unconstitutional, the Order is perfectly fine. Supposing that this attenuated argument is correctly premised, it would still fail.

First, the Order halts more than just unconstitutional deportations. It is unlawful to the extent it halts “all” other enforcement activities which are certainly constitutional, like the inspection and admission of immigrants. Likewise, the temporary interdiction and deferred deportation required by § 211 is not dependent on immigration courts. Second, if there is an absolute lack of funding, then in that instance the executive may absolutely use its discretion on an “individual” and “isolated” basis to defer deportations, Heckler, supra, which, of course, is not what the President’s Order does.

But that hypothetical land is not the hypothetical one we exist in. So viewed, it is the Dissent which “goes out of its way to search out a reason to declare the Executive Order” constitutional. If anyone is on “stilts,” it’s certainly not us.

In sum, what the President did was not protected by prosecutorial discretion.[5] The Order actually eliminated all discretion by ICE to engage in enforcement and deportation proceedings. But that’s ICE’s statutory mandate. So what the President ordered was unlawful, meaning the President has failed to take care that the laws of the United States are faithfully executed. We hold § 1(a) void as it is inconsistent with the mandatory legal obligation under § 211.

We sustain the remainder of the Order, including § 1(b). Notably, under the relevant statutes, the Border Patrol does not operate detention centers — ICE does — and is not required to maintain physical border patrols. 6 U.S.C. § 211 (c )(8), (e). Thus, § 1(b) is not inconsistent with the law. And as discussed, § 1(b) does not run afoul of § 1373. Because the Order is severable, we do not strike § 1(b) or any remaining portion of the Order not before this Court.

VI. Conclusion

The law requires ICE to engage in immigration enforcement activities. The President may not order ICE to ignore that statutory duty. He may issue policies to shape prosecutorial discretion so long as such orders are not inconsistent with a statutory mandate. But he may not unilaterally issue an order that halts enforcement of a statute wholesale.

We find for the Petitioner on the second question before the Court: § 1(a) of the Order does violate the take care clause of the Constitution. We hold it void. We do not, however, order the mandatory enforcement of immigration law. The President is already under a constitutional duty to do just that, and we presume his future actions will take care that those laws are faithfully executed.

We find for the Respondent on the remaining questions, and sustain § 1(b) of the Order.

It is so ordered.

Reagan0, J., joins in sections I-IV of the plurality opinion, and concurring in the judgement.

I. How did we get here?

The court today is faced with a maze of legality. Both the majority opinion and dissent do a fair job of explaining this and so I shall refrain from rehashing all the details of the case once more. The bottom line is that, as the majority states, the President does not have the power to nullify a federal law. This does not mean, of course, that I agree entirely with how the majority has missed several key points raised by the dissent.

Ultimately, the key issue faced by the court today is the funding of our immigration court system. While the majority correctly holds that the President may not nullify a federal law, it fails to realize the complex situation into which Congress has, either intentionally or unintentionally, thrown the Executive. While the majority holds that immigration courts remain funded, the dissent rightfully points out that funding for said courts under the Executive Office for Immigration Review was cut from the final budget proposal passed by Congress. While it is never our role to look beyond the text of the written law, it is quite clear that no funding for immigration courts has been allotted.

While the majority claims that said funding can be gleaned from administrative reviews or the civil division, both of these fund operations independent of the courts themselves. Be it internal reviews within the Department of Justice or immigration attorneys, respectively. What remains unfunded is the courts themselves through the cut Executive Office for Immigration Review.

As is posited by the dissent, we owe a certain deal of deference to the Department of Justice’s own interpretation that the courts remain unfunded. However, the ultimate nail in the coffin for immigration courts is their conspicuous lack of appearance in the text of the budget. It is not up to this court to stretch the text of the budget in order to provide filling for holes created by Congress just because those holes had been plugged before. The previous funding of immigration does not give this court a whack-a-mole-style ability to find new appropriations. It is neither our role to look into our crystal ball of legislative intent nor to divine the sands of budgets past to construe funding for immigration courts based solely on their previous place in said budgets. It is our role to plainly read the text.

The blame for this unfortunate legal and budgetary kerfuffle lies at the feet of the wrongly decided /u/JacobInAustin v. United States In re: Executive Order 23, Case №20–08, 101 M.S.Ct. 117 (2020). Through our folly in deciding the above case, we have well and truly destroyed the necessity for Congress to utilize its authority of appropriation. We have left ourselves in a constitutional quagmire by which Congress passes vague budgets with weak mandates and unguided appropriations as the Executive scrambles to interpret each individual line.

This is budgetary bedlam.

II. The Next Steps

Where we go from here depends on Congressional resolve to remedy these issues. It is not incumbent upon this court to either “stretch armstrong” the budget or allow the Executive to do so by tearing down the separation of powers. My support for the majority hinges on the simple fact that the President, in his executive order, has bitten off more than is constitutionally permissible to chew. Even though the courts are unfunded his order extends far beyond the bounds of the Attorney General’s original memorandum. It extends far beyond the dissent’s allegation of necessary constitutionality by virtue of the cessation of unconstitutional actions.

Though I must urgently caution both the Justice Department and Congress to resolve this dispute posthaste. Once again I admonish Congress for being derelict in their budgetary duties and I urge them to fix the incongruent nature of the budget and their mandates for the sake of the constitutional rights of those facing the naturalization or denaturalization processes. As for the President, the overbroad § 1(a) must be struck down in order to ensure proper separation of powers no matter how tenuous the surrounding circumstances.

I concur hesitantly with the majority in their judgment.

CHEATEM, J., concurring in part and dissenting in part, with whom JJEAGLEHAWK, J., joins.

The Majority correctly upholds section 1(b) of Executive Order 2, but erroneously declares section 1(a) of that Order unconstitutional. I write separately to make clear the Majority’s error.

The Majority proclaims that “[t]o describe this case is to decide it,” supra, only to then erroneously describe the case. From that flawed premise it ineluctably arrives at an erroneous holding: the President is prohibited from instructing an agency to not violate the Constitution. Today the Court concludes that the best way for the President to fulfill his oath to support and defend the Constitution is to actively violate it. This is a preposterous farce that elevates form over substance and flies in the face of well-established precedent.[6]

I.

The challenged Executive Order is constitutional because no other constitutionally-permissible path was available to the President. This is because the immigration courts are unfunded and, accordingly, immigration enforcement cannot proceed.

The Majority erroneously contends that under In re: Executive Order 23, Case №20–08, 101 M.S.Ct. 117 (2020), “the immigration courts can be funded under the DOJ’s appropriation for administrative reviews (which immigration courts are) or under the civil division (which houses the Office of Immigration Litigation).” This interpretation is erroneous, as it is in direct conflict with the interpretation of the Attorney General, an interpretation to which we owe deference. See, e.g., Dewey Cheatem, Department of Justice, A.G. Cheatem: DOJ Unable to Process Any ICE Warrants (Feb. 3, 2020), available at https://docs.google.com/document/d/1AwQIzWWCWCh-uTEJB2NXCrtDS_hTSowgQU68hiKhNWI/edit. Under the Attorney General’s interpretation, “[t]he Department of Justice is unable to issue any warrants for arrest or detention of undocumented [immigrants], as the Executive Office for Immigration Review, under which the immigration courts are constituted, has not been funded since 2018.” Id.

These interpretations are given deference because they are often better informed than those of the Court. It is no different here, as the brilliant Attorney General’s interpretation is based on and corroborated by the legislative record. Notably, the Attorney General specifically requested $500 million in funding for the Executive Office for Immigration Review — the office, as the Attorney General pointed out, charged with processing warrants for the arrest or detention of undocumented immigrants. Yet the President and Congress rejected this request. Dewey Cheatem, Department of Justice Budget Request for the Fiscal Year 2020, available at https://docs.google.com/spreadsheets/d/13GOZeIrbxH9DKM5qKSOK8N9Sb7nD9yeA5gyKVIS5BpM/edit#gid=0.

Congress undoubtedly knows how to allocate funds for the operation of the immigration courts, especially in light of the Attorney General’s public comments. It is therefore reasonable to conclude that it made the affirmative choice not to. Thus, for example, in Central Bank of Denver v. First Interstate Bank, 511 U.S. 164 (1994), we found that a private plaintiff may not maintain an aiding and abetting suit under a section of the Securities Exchange Act of 1934 because “Congress knew how to impose aiding and abetting liability when it chose to do so,” yet chose not to use the words “aid” or “abet” in the statute. Id. at 176–177. Similar instances of this Court reaching similar conclusions by a similar methodology abound. See, e.g., Franklin Nat’l Bank v. New York, 347 U.S. 373, 378 (1954) (finding “no indication that Congress intended to make this phase of national banking subject to local restrictions, as it has done by express language in several other instances”).

None of these facts were present in In re: Executive Order 23. At no point during the proceedings of that case was any evidence adduced of any opposition to the use of the funds in manner done in the challenged executive order here. On the contrary, that case turned on the failure of Congress to speak; here, Congress has spoken by eliminating the relevant funding — the sole question remaining is whether this Court chooses to listen. In re: Executive Order 23 therefore is not, and cannot be, controlling here.

Because there is no permissible source of funding for the immigration courts it would be per se unlawful for ICE to arrest or detain anyone. The Majority’s insistence that activities other than deportation can proceed without the immigration courts is deeply disturbing, as the necessary conclusion from that position is that immigration enforcement agencies can arrest persons alleged to be unlawful immigrants without warrants and detain them indefinitely. This is directly contrary to the requirements of our Constitution, not to mention the very statutory regime the Majority claims it seeks to vindicate. The Executive Order merely ensures that this does not happen.

Meanwhile, the Court’s reliance upon Congress’s “intent” in enacting 6 U.S.C. § 211(c)(8) is similarly nonsense on stilts. Regardless of what Congress “intended” when it passed section 211, Congress also intended to deprive ICE of its ability to “enforce and administer” immigration laws when it wholly defunded the courts that allow ICE to detain or deport anyone. Moreover, given how concerned the Court is with what it imagines Congress “intended,” it is bizarre that the Court disregards entirely the fact that in the face of these two diametrically opposed congressional acts the only possible explanation of Congress’s “intent” in enacting the latest budget is to repeal section 211 by implication.

While generally we must read two potentially conflicting statutes “to give effect to each . . . while preserving their sense and purpose,” there is a limit to that rule: where the two acts are “irreconcilably conflicting.” Watt v. Alaska, 451 U.S. 259, 266–267 (1981). One strains to imagine a situation encapsulating this exception more perfectly than an earlier statute directing an agency to take some action and a later statute divesting that agency of the means by which to take any action.

Because here, in contrast to In re: Executive Order 23, there is affirmative evidence of intent to eliminate funding for the relevant purpose, the only permissible conclusion is that this decision cannot be undone through fancy hand-waving.

II.

Time and again, this Court has refused to exalt form over substance. In tax, for example, the Court has looked not to the particular legal form of an arrangement but instead its actual substance. Frank Lyon Co. v. United States, 435 U.S. 561, 573 (1978) (discussing “substance over form” doctrine). Likewise, in the context of our Establishment Clause jurisprudence, we have rejected an “absolute bar to the placing of public employee[s] in a sectarian school” on the grounds that it would “exalt form over substance.” Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1, 13 (1993). And, in the context of the Sixth Amendment, we have found that the right to counsel does not depend on “whether at the time of the interrogation, the authorities had secured a formal indictment” because holding otherwise would “exalt form over substance.” Escobedo v. Illinois, 378 U.S. 478, 486 (1964).

Departing from this principle that undergirds every area of our jurisprudence, the Court today proclaims that even when it would be unlawful for the President to enforce a law, it is also unlawful for him to say out loud that he is following the only constitutional path open to him. Here, for example, Congress has declined to allocate funding to the immigration courts without which detention and deportation cannot proceed. It would be impermissible, then, for the President to direct ICE to “enforce and administer” any immigration laws.

The Court’s rule today forces the President, and future presidents, into an untenable position. If the President had not directed ICE to cease its enforcement operations, he would have faced legal action arising from ICE’s unlawful activities and detention of persons. But here, the President — presumably seeking to avoid that unconstitutional outcome — directed ICE not to engage in activities in which it could not legally engage. The Court says that the President has violated the Constitution by doing so. Presumably, the Court expects the President to find some other way to communicate his wish that federal agents not engage in unlawful activity, such as cultivating his powers of telepathy.

Even if the majority’s reading of the Executive Order could be credited, the Court’s reasoning is still fundamentally flawed because, though giving lip-service, it disregards the well-established principle that we must construe the President’s actions here “if possible, so as to avoid not only the conclusion that it is unconstitutional but also grave doubts upon that score.” United States v. Jin Fuey Moy, 241 U.S. 394, 401 (1916). Instead, “where an otherwise acceptable construction of [an Executive Order] would raise serious constitutional problems, the Court [must] construe the [Order] to avoid such problems unless such construction is plainly contrary to the intent of [the President].” DeBartolo Corp. v. Florida Gulf Coast Trades Council, 485 U.S. 568, 575 (1988).

Rather than following this age-old principle, today’s majority goes out of its way to search out a reason to declare the Executive Order unconstitutional, delving into the annals of the United States Code to sniff out hidden meanings. In reality, it is readily apparent that constitutional readings of the Executive Order exist: that the President was directing a federal agency not to engage in unconstitutional action.

I therefore dissent with zest.

*Justice CuriositySMBC played no part in this decision.

[1] If immigration reform is to come, it must come through the political branches and proper channels of bi-cameralism and presentment. Our job is merely to say what the law is at this moment.

[2] The canon of constitutional avoidance relied upon by the Dissent only applies when a constitutional reading is “fairly plausible,” meaning the plain text of the statute is unclear. United States v. Jin Fuey Moy, 241 U.S. 394, 401 (1916). We do not abandon the text because it might be unconstitutional, as the Dissent does. The avoidance canon serves as a tie-breaker between two plausible readings. See DeBartolo Corp. v. Florida Gulf Coast Trades Council, 485 U.S. 568, 575 (1988) (applying canon to an “otherwise acceptable construction”). For clarity, the Dissent’s reading of the Order halting “all” enforcement activity as only halting unconstitutional deportations is implausible.

[3] The Dissent critiques our interpretation of Congress’ intent. We agree that determining Congress’ intent is fundamentally flawed. Luckily, that’s not what we are doing. We are applying the text of the budget in accordance with the intelligible principle from In re: Executive Order 23. The Dissent’s reliance on legislative history is flawed for that very reason. The text of the budget contemplates funds for immigration courts under our precedent. That is the critical inquiry. At no point in this opinion have we attempted to discern Congressional “intent.” We are interpreting the text of the statutes and Order, no more no less.

[4] Supposing for argument that all funds for an enforcement activity were to be used up, then resource scarcity would result in wider prosecutorial discretion. And even if the functional result would be the same, the Take Care Clause would still hold an indefinite wholesale non-enforcement order unconstitutional. The formal separation of powers matters and, at the risk of our republic, cannot be eroded. To the extent funds exist, the law must be faithfully executed.

[5] Additionally, this is not a case where the executive has introduced good-faith arguments that enforcement of the mandatory duty would be unconstitutional. And, of course, such an argument here would be incredulous. To satisfy this standard, the facial application of a statute must be unconstitutional.

[6] And don’t even get me started on the recent decision in Dixie. See In re: B.385 — the Death Penalty Reaffirmation Act of 2019, Case №20–6 (DX. 2020).