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Greetings, Court Fans!

After a month of inactivity, The Nine were back on Thursday with five new decisions, including a few biggies:

• In National Pork Producers Council v. Ross (No. 21-468), a divided Court upheld a California animal-rights proposition that would indirectly regulate the practices of out-of-state pork producers, in the process narrowing Dormant Commerce Clause doctrine to (mostly) just an anti-discrimination principle;

•  In Percoco v. United States (No. 21-1158) and Ciminelli v. United States (No. 21-1170), the Court unanimously pared back two expansive understandings of the mail and wire fraud statutes;

• In Financial Oversight and Management Board for Puerto Rico v. Centro de Periodismo Investigativo, Inc. (No. 22-96), the Court (8-1) held that the Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA) does not categorically abrogate the sovereign immunity of the Financial Oversight and Management Board that the statute created;

• And, in Santos-Zacaria v. Garland (No. 21-1436), the Court (once again) held that an exhaustion requirement in a federal statute—this time, the provision of the Immigration and Nationality Act requiring administrative exhaustion before an Article III court can review a final order of removal—is not jurisdictional.

First up is National Pork Producers Council v. Ross (No. 21-468), which may be the most significant Dormant Commerce Clause case in decades. It asks whether a California ballot measure that (allegedly) has the practical effect of regulating factory-farming nationwide exceeds the Golden State’s powers under the Constitution. In a complex 5-4(ish) decision by Justice Gorsuch, the Court concluded it did not. In reaching that result, the Court pared back some of the messy branches of Dormant Commerce Clause doctrine, pruning it down (mostly) to an anti-discrimination principle.

In November 2018, California voters overwhelmingly approved Proposition 12, which (among other things) forbids the sale in California of pork from pigs raised in small pens, known as gestational crates. While state regulation of animal farming practices has been commonplace for decades, two facts made Proposition 12 unique. First, essentially no pigs are raised in California: All large-scale pig-farming operations are based in the Midwest (particularly in Iowa) or North Carolina. And second, because of the way industrial meat production works, it is essentially impossible to segregate pigs or pig products for the California market. As a result, two national pork-farming associations sued, alleging that Proposition 12 violated the Dormant Commerce Clause because it would force nearly all pork farmers nationwide to follow California’s rules.

Before we continue, a reminder of what exactly the Dorman Commerce Clause is. To find it in the Constitution, you first have to squint a bit. The Commerce Clause gives Congress the power to “regulate Commerce . . . among the several States.” When combined with the Constitution’s Supremacy Clause, everybody agrees that the Commerce Clause preempts state laws that conflict with federal efforts to regulate the economy. But dating back to Gibbons v. Ogden (1824), the Court has read the Commerce Clause’s grant of authority to Congress as quasi-exclusive, implicitly prohibiting statesfrom regulating interstate commerce, at least in some ways. While the exact contours of this “Dormant” Commerce Clause have long been unsettled and contested, two points of law are well-established and generally accepted. First, the primary evil addressed by the Dormant Commerce Clause is protectionism, that is, efforts by states to give in-state interests a leg up on their out-of-state competitors. But second, even when a state law isn’t facially discriminatory, it might still violate the Dormant Commerce Clause if the in-state benefits it supposedly provides are substantially outweighed by the out-of-state burdens it imposes. This second concept is called Pike balancing, after the Court’s decision in Pike v. Bruce Church (1970).

The basic problem facing the pork producers in this case is that everybody agreed Proposition 12 wasn’t protectionist. Remember: there are no California pork producers. Rather, Proposition 12 raises the question of just how much of the U.S. economy large states like California get to regulate. The pork producers argued not that much, claiming that in addition to the anti-discrimination idea, Dormant Commerce Clause cases also recognize an extraterritoriality principle. Under that rule, a state law that predominantly regulates economic activity outside the state will nearly always be unconstitutional. That rule, if valid, would seemingly doom Proposition 12, because basically every farm affected by the measure was outside California. But neither the District Court nor the Ninth Circuit bought the extraterritoriality theory, so they granted California’s motion to dismiss the case. And up it came to the Supreme Court

While the Court’s opinion resolving the case is fractured, there was one thing all nine Justices agreed on: This extraterritoriality theory is not a thing. Where the Justices were divided was on what came next: Could the pork producers’ suit proceed on the narrower Pike theory that Proposition 12’s burdens on out-of-state producers outweighed its benefits to California consumers?

Justice Gorusch, writing for the unusual (and not fully aligned) combination of Justices Thomas, Sotomayor, Kagan, and Barrett, said no. He began with a lengthy debunking of the extraterritoriality argument. True, some of the Court’s prior Dormant Commerce Clause cases used broad language worrying about states’ exercising regulatory authority beyond their borders. But if you actually dig into the details of those cases, they all involved outright protectionism, that is, purposeful discrimination against out-of-state interests. What’s more, endorsing a rule that state laws fail if they regulate behavior outside their borders leads to “strange places”: In today’s national economy, it’s hard to think of a state law that doesn’t have effects on people outside that state. So a “no-extraterritorial-effects” principle would call into question core areas of state authority, like measures designed to protect the health and safety of a state’s consumers.

Justice Gorsuch then turned to an alternative theory, one pressed less by the pork industry and more by various amici (including the U.S. government): Pike balancing. Here, too, the majority saw problems, but just what those problems are depends on who you ask. First, all five members of the majority warned that while Pike’s balancing of in-state benefits against out-of-state burdens is a standalone rule of the Dormant Commerce Clause, that framework too is mostly about anti-discrimination. In this telling, Pike is just a way of attacking protectionist measures that are disguised rather than explicit. Outside that context—as this case was—courts should be cautious about striking state laws down under Pike.

Writing only for Justices Thomas and Barrett, Justice Gorsuch then concluded that the pork industry’s Pike challenge to Proposition 12 is essentially non-justiciable. That is so because the benefits of Proposition 12—moral interests in the welfare of pigs—are incongruous with the costs it imposes—increasing the costs of pig farming. But balancing non-economic interests against economic ones is something for lawmakers or voters, not judges. Justice Barrett, writing a separate concurrence for herself, expounded on this, arguing that Pike balancing only works when the burdens and benefits are similar in kind.

Next, writing for Justices Thomas, Sotomayor, and Kagan, Justice Gorsuch found another reason why the pork industry’s Pike theory failed: They didn’t allege that Proposition 12 imposed a “substantial burden” on them. True, Proposition 12 might increase pork farmers’ costs by forcing them to raise pigs using different methods. But this is not the sort of “substantial burden” Pike is talking about. Rather, Pike is concerned about burdens  that effectively prevent out-of-state firms from accessing the California market. So while Proposition 12 might make particular farmers more or less competitive based on their preferred method of farming, the plaintiffs hadn’t pled facts plausibly establishing that Proposition 12 effectively excluded out-of-state producers as a group from the market. Justice Sotomayor (joined by Justice Kagan) also separately concurred to further explain why the pork industry’s claims of greater costs were not enough, even at this preliminary stage.

Chief Justice Roberts, joined by Justices Alito, Kavanaugh, and Jackson, concurred and dissented. He began with a hearty (though short) endorsement of the majority’s rejection of the industry’s extraterritorial theory. But his opinion then proceeded to a dissent over the meaning of Pike and the result under it. While he agreed that Pike cases have often involved discriminatory state laws, he would not read that doctrine as limited to that context. And though he was sympathetic to Justice Gorsuch’s concern that balancing moral benefits against economic harms is difficult, the Chief saw no reason why courts should refuse to try. With that out of the way, the Chief disagreed with the portion of Justice Gorsuch’s opinion concluding that the industry had failed to plausibly allege a substantial burden under Pike, noting that their complaint pleaded not only substantial compliance costs but also that Proposition 12’s welfare-standards would cause consequential harms (like increasing the prevalence of disease). At the pleading stage, the dissenters would find those allegations sufficient; whether those costs were real and justified by Proposition 12’s benefits should be decided only based on the actual evidence obtained in discovery.

Finally, Justice Kavanaugh wrote separately to point out some other theories the pork industry might consider to get at the no-extraterritoriality idea: Proposition 12 might violate the Import-Export Clause, the Privileges and Immunities Clause, or the Full Faith and Credit Clause. We could expound, but we’ve been going for a while now, so maybe just read Kavanaugh’s opinion if these theories pique your interest.

Now that we’ve run through this confusing set of opinions, a brief summary is in order. As we said, all nine Justices agreed that the Dormant Commerce Clause does not prohibit state regulations merely because of their extraterritorial effects, no matter how grave those effects may be. Five (Gorsuch, Thomas, Sotomayor, Kagan, and Barrett) also warn that state laws should rarely fail the Pike standard absent some whiff of protectionism. Three (Gorsuch, Thomas, and Barrett) would go further, holding that Pike challenges to state laws directed at non-economic concerns are non-justiciable (though not quite in so many words). But a majority (Roberts, Alito, Sotomayor, Kagan, Kavanaugh, and Jackson) think that judges must try to apply Pike no matter how hard it may be, though two of that majority (Sotomayor and Kagan, plus Gorsuch and Thomas) concluded that the pork producers just failed to allege the kind of substantial burden Pike requires. So when you combine the “no burden alleged” votes with the “non-justiciable” ones, the lower court’s dismissal of the pork industry’s challenge is affirmed. And the broader lesson is that the current Court is going to be skeptical of Dormant Commerce Clause suits when there isn’t a good argument the challenged law violates the Clause’s anti-discrimination principle.

Next up for today, the Court reigned in the Second Circuit’s historically broad approach to mail and wire fraud in a pair of unanimous decisions. Sections 1341 and 1343 of the Criminal Code prohibit using interstate instrumentalities (i.e., the mail and wires) to execute any “scheme or artifice to defraud.” When the statutes were first enacted, fraud was generally understood to mean depriving a person of “property rights.” But throughout the Twentieth Century, lower courts consistently tried to broaden the concept of fraud to reach schemes directed at various sorts of intangible rights. Last week’s decisions—both of which arose out of an investigation into alleged fraud in development projects that were part of former New York Governor Andrew Cuomo’s “Buffalo Billion” initiative—narrowed the scope of intangible-rights fraud in two important, but slightly different, ways.

We’ll start with Percoco v. United States (No. 21-1158), where the Court narrowed (without completely foreclosing) the circumstances under which a private citizen can be convicted of “honest services fraud.” That concept arose to address situations where a corrupt government employee accepts a bribe or kickback, but the corruption doesn’t necessarily result in a financial loss to the government (and so there is no loss of money or property). No matter, the theory goes, because the fraud also deprives the government—and the public—of its so-called right to receive honest services from the employee. While honest-services prosecutions have usually targeted employees of the government, the theory has occasionally been applied to private individuals too when they exercise a sufficient degree of control over government projects. The Second Circuit endorsed that approach in a 1982 case, known as United States v. Margiotta.

The facts of Joseph Percoco’s prosecution are a good demonstration of the theory. From 2011 to 2016—with one very relevant eight-month exception—Percoco served as the Executive Deputy Secretary to New York Governor Andrew Cuomo. (For anyone who doesn’t know, the Secretary to the Governor is the highest ranking appointed position in the Governor’s office, so as Executive Deputy Secretary, Percoco wielded significant power in New York politics.) In April 2014, Percoco resigned to manage Governor Cuomo’s reelection campaign for eight months, before returning to his government position upon the Governor’s reelection. During his interregnum from government service, Percoco accepted $35,000 to intercede on behalf of a real-estate developer who was hoping to avoid having to enter into a “Labor Peace” agreement as a condition to receiving state funding for a lucrative project. Three days before returning to his government job, Percoco called a senior official at Empire State Development (ESD) and urged him to drop the labor-peace requirement. Lo and behold, ESD did so the very next day.

Percoco’s conduct was certainly shady, but was it a federal offense? The Second Circuit said yes. Recalling its Margiotta decision, the court concluded that Percoco’s conduct rose to the level of honest-services fraud because, although he was a private citizen when he accepted the bribe, he “dominated and controlled” some aspect of government business and “people working in the government actually relied on him because of a special relationship he had with the government.” But the Supreme Court found this standard “too vague” to survive scrutiny under the Due Process Clause.

Writing for the Court, Justice Alito began by tracing the development of the honest-services theory of fraud. By the mid-1980s, every circuit had accepted the theory, though not all had gone so far as the Second Circuit to extend it to conduct by private individuals. But the Supreme Court rejected the entire concept of honest-services fraud in McNally v. United States (1987). Congress responded to McNally by enacting 18 U.S.C. § 1346, which specifically provides that “the term ‘scheme or artifice to defraud’” in the fraud statutes “includes a scheme or artifice to deprive another of the intangible right of honest services.” Years later, in Skilling v. United States (2010), the Court refused to strike down Section 1346 as unconstitutionally vague, but narrowed its meaning to encompass not “all intangible rights of honest services whatever they might be thought to be,” but only “the intangible right of honest services,” meaning the “core” of the pre-McNally case law.

Justice Alito concluded that the Second Circuit’s Margiotta standard was outside the “core” of pre-McNally honest-services case law. He first rejected Percoco’s argument that a private person can never commit honest-services fraud. While the pre-McNally case law most often involved public officials, embracing a bright-line rule would ignore the reality that private persons can become agents of the government and therefore owe a fiduciary obligation to the public.

But rejecting Percoco’s “absolute rule” was not the end of the matter, because the standard the district court had applied was too vague to satisfy due process. Justice Alito noted that “[f]rom time immemorial, there have been éminences grises, individuals who lacked any formal government position but nevertheless exercised very strong influence over government decisions. Some of these individuals have been reviled; others have been respected as wise counselors.” But the Margiotta standard could sweep in éminences of both types. While all recognize that the public has no right to disinterested service from lobbyists and party officials, for example, the Margiotta standard seems to suggest that these éminences do owe a duty of honest services to the public if their “clout exceeds some ill-defined threshold.” Though Margiotta and its progeny required some degree of “domination” over political matters in order, that concept did little to limit the range of potentially criminal conduct. “Without further constraint, Margiotta does not…define ‘the intangible right of honest services’ with sufficient definiteness that ordinary people can understand what conduct is prohibited.” Thus, the particular jury-instructions in Percoco’s case, which the Second Circuit approved, were erroneous.

In the Supreme Court, the Government did not actually defend the Margiotta standard. Instead, it argued that any error was harmless because Percoco’s conduct would have satisfied a more concrete definition of honest-services fraud in the private context. In the Government’s view, a private person owes a duty of honest services to the public in “two discrete circumstances”: (1) “when the person has been selected to work for the government in the future” and (2) “when the person exercises the functions of a government position with the acquiescence of relevant government personnel.” Because Percoco executed the scheme just days before returning to public service, the Government contended that he would have been convicted even under a narrower honest-services instruction. But Justice Alito disagreed, noting that the actual jury instructions were substantially different from either of the Government’s new theories, and the Second Circuit had expressly affirmed the case only under Margiotta.

So Percoco has won the battle, but not necessarily the war. He might be guilty of honest-services fraud if the Government retries him under a more precise theory, potentially one that requires a finding that it was known that he would be returning to government in the future or that he had never really left in the first place.

Justice Gorsuch would have gone further, throwing out the vague concept of an “intangible right to honest services” entirely. In his view (expressed in a concurrence that was joined by Justice Thomas), when Congress sought to rescue the honest-services theory of fraud with Section 1346, all it did was confirm that the mail- and wire-fraud statutes were intended to protect a right to “honest services.” It did nothing to clarify what “honest services” actually means or who owes a duty to provide them. While courts and prosecutors could perhaps eventually agree on a sufficiently precise definition (and this case might be a step in that direction), Justice Gorsuch insisted that “that is not a path the Constitution tolerates.” It’s the legislature that must “do the hard work of writing federal criminal laws.” “Congress cannot give the Judiciary uncut marble with instructions to chip away all that does not resemble David.” So for Gorsuch and Thomas (but not, this time, Justice Jackson), the problem of defining honest services should be kicked back to Congress, with the Court “declin[ing] further invitations to invent rather than interpret this law” in the meantime.

The Court continued to chip away at the Second Circuit’s fraud jurisprudence in United States v. Ciminelli (No. 21-1170), where it addressed the Circuit’s longstanding “right-to-control” theory. That theory allows the Government to establish wire fraud by showing that the defendant schemed to deprive a victim of potentially valuable economic information, even if no money or other property is actually stolen. Because “a defining feature of most property is the right to control the asset in question,” the theory goes, “a cognizable harm occurs where the defendant’s scheme denies the victim the right to control its assets by depriving it of information necessary to make discretionary economic decisions.”

Here again, the Buffalo Billion prosecution provides a nice illustration: Louis Ciminelli is a Buffalo contractor who allegedly conspired with two associates of Governor Cuomo, Alain Kaloyeros and Todd Howe, to rig bids for state projects flowing from the Buffalo Billion program. Kaloyeros was on the board of the Fort Schuyler Management Corporation, a nonprofit that was overseeing the investment of $1 billion into development projects in upstate and western New York. Each month, Kaloyeros paid Howe, a well-connected lobbyist, $25,000 in state funds to ensure that the Cuomo administration continued to give Kaloyeros a prominent position in Buffalo Billion. Meanwhile, Ciminelli paid Howe $100,000 to $180,000 a year to help his company, LPCiminelli, obtain state contracts. The trio devised a scheme whereby Kaloyeros would tailor Fort Schuyler’s bid process to effectively guarantee that LPCiminelli would be selected as the preferred developer for Buffalo projects, as indeed it was. After an investigation uncovered the scheme, they were charged with wire fraud, under a right-to-control theory: namely, that they defrauded Fort Schuyler of its right to control its assets by depriving it of potentially valuable economic information. After Ciminelli was convicted, he appealed to the Second Circuit, arguing that the right to control one’s assets is not “property” for purposes of the wire-fraud statute. The Second Circuit affirmed its longstanding theory, but the Supreme Court reversed.

This time Justice Thomas wrote for a unanimous Court. He noted that the Court had consistently understood the wire-fraud statute’s “money or property” requirement to limit the “scheme or artifice to defraud” element, such that a victim must be deprived of “money or property” in order to sustain the conviction. Nevertheless, for decades lower courts have interpreted the notion of “property” broadly to include intangible interests unconnected to traditional property rights. In McNally, the Court pushed back on this trend and insisted that “property” in the fraud statutes refers to “individual property rights.” While Congress reacted to McNally by codifying the “honest-services” theory addressed in Percoco, it did not fully abrogate McNally’s insistence that “property” refers to individual property rights.

Based on this understanding, Justice Thomas continued, the Second Circuit’s right-to-control theory could not be justified under the text of the fraud statutes. While the right-to-control theory assumes that individuals have a right to control their property (and therefore a right to information necessary to make discretionary decisions), that is not an interest that had been recognized as “property” when the wire fraud statute was enacted. Indeed, the Second Circuit had never tied the theory to any traditional property right. Congress’s codification of the honest-services theory, but not other intangible-rights theories, confirmed that the other pre-McNally intangible-rights theories are no longer valid.

As in Percoco, the Government abandoned the Second Circuit’s right-to-control theory on appeal but asked the Court to affirm Ciminelli’s conviction on the alternative ground that the evidence sufficiently established wire fraud under a traditional property-rights theory. But Justice Thomas declined to wade through the record to “cherry-pick facts presented to a jury charged on the right-to-control theory and apply them to the elements of a different wire fraud in the first instance.” Justice Alito added a short solo concurrence confirming that the Court’s opinion did not foreclose Ciminelli from being retried under a traditional property-rights theory, such as one alleging that he had obtained “valuable contracts” through fraud.

Moving on, in Financial Oversight and Management Board for Puerto Rico v. Centro de Periodismo Investigativo, Inc. (No. 22-96), the Court again waded into the thicket surrounding Puerto Rico’s debt restructuring, holding—in the context of a case brought by a nonprofit seeking public records—that the Financial Oversight and Management Board established by Congress as part of Puerto Rico’s bail-out possesses sovereign immunity from civil suits.

In 2016, Puerto Rico was facing a fiscal emergency, with its public debt eclipsing the annual output of its economy. Because the Territory could not service its debt through the bond market or restructure it under federal bankruptcy laws, Congress passed the Puerto Rico Oversight, Oversight, Management, and Economic Stability Act of 2016 (PROMESA) in an attempt to help the Territory carve a path back to solvency. A key feature of PROMESA was the creation of a Financial Oversight and Management Board, which functions as part of the Puerto Rican government, overseeing all fiscal plans, budgeting, and borrowing. The Board also represents Puerto Rico in judicial proceedings similar to federal bankruptcy proceedings for restructuring the Territory’s debt.

In 2016, a nonprofit media organization, Centro de Periodismo Investigativo, Inc., (CPI), sued the Board (twice) under the Puerto Rican constitution to compel it to turn over certain documents and communications between the Board’s members and U.S. government officials. The Board asserted that it was immune from suit under the doctrine of sovereign immunity. The trial court denied the defense, and the First Circuit affirmed, holding that the Board would have been entitled to sovereign immunity, but Congress abrogated the Board’s sovereign immunity in PROMESA. The Court granted cert to consider the latter holding.

In an opinion by Justice Kagan, joined by all but Justice Thomas, the Court reversed. As a threshold matter, the Court made two big assumptions. First, the Court assumed (without deciding) that Puerto Rico itself is entitled to sovereign immunity. Second, the Court assumed (without deciding) that Puerto Rico’s sovereign immunity would extend to the Board. With those points out of the way, the Court proceeded to consider whether, through PROMESA, Congress had abrogated that (assumed) immunity. The Court held that it had not. In general, courts will not conclude that Congress abrogated a State or governmental agency’s sovereign immunity by statute absent “unmistakably clear” language to that effect. That type of language is usually found in one of two provisions: Congress can either (1) explicitly state that the sovereign entity is not immune (for example, by stating that States “shall not be immune” from suit for patent or copyright infringement as in 25 U.S.C § 296(a)); or (2) create a cause of action that explicitly applies against States and governmental agencies (as in several federal employment discrimination laws like Title VII). Because PROMESA included neither of those kinds of clear provisions, the Board was entitled to sovereign immunity.

The Court rejected the First Circuit’s reasoning that other provisions of PROMESA illustrated Congress’s intent to abrogate the Board’s sovereign immunity. For example, PROMESA specifies the proper venue for suits against the Board and states that any declaratory or injunctive relief issued by a court against the Board cannot take effect until the underlying litigation concludes. While the First Circuit held those provisions demonstrated Congress’s understanding that the Board could be sued, the Court disagreed. Neither constituted the kind of clear statement required to abrogate sovereign immunity. Further, both of those provisions would still be relevant in other discrete situations where Congress had abrogated sovereign immunity—e.g., by specifying the venue where a Board employee could sue the Board under federal employment statutes that themselves abrogate sovereign immunity.

Justice Thomas dissented, taking issue with the Court’s underlying assumptions. In his view, the Eleventh Amendment confers sovereign immunity on States, not Territories, so Puerto Rico would not be entitled to sovereign immunity in the first place. As a result, the question of whether Congress abrogated the Board’s sovereign immunity is essentially irrelevant, because the Board did not have sovereign immunity to begin with—an issue that Justice Thomas would have reached rather than simply assuming the question away.

Finally, in Santos-Zacaria v. Garland (No. 21-1436), a unanimous Court addressed the scope of a federal immigration law that requires noncitizens to exhaust administrative remedies before seeking federal court review of final orders of removal from the Board of Immigration Appeals (BIA) . Continuing a trend this term, the Court held that the exhaustion requirement is not jurisdictional, because it lacks a “clear statement” of Congress’s intent to make it so.

Santos-Zacaria, a citizen of Guatemala, was detained within the United States by immigration authorities and sought withholding of removal based on a likelihood of persecution in Guatemala. After an immigration judge denied her request for withholding of removal, and the BIA upheld the denial, Santos-Zacaria sought review in the Fifth Circuit, but that court dismissed the petition for lack of jurisdiction on the ground that Santos-Zacaria had failed to comply with 8 U.S.C. § 1252(d)(1), which states that a federal appellate court “may review a final order of removal only if … the alien has exhausted all administrative remedies available to the alien as of right.” The Fifth Circuit found that Santos-Zacaria had failed to exhaust all remedies available to her because she had not filed a motion for reconsideration with the BIA before seeking review in federal court.

The Supreme Court unanimously reversed, in an opinion by Justice Jackson. Justice Jackson first rejected the Fifth’s Circuit’s conclusion (and the conclusion of the majority of other federal appellate courts to consider the issue) that Section 1252(d)(1) established a jurisdictional requirement, such that non-exhaustion deprived the federal court of jurisdiction. Noting again that a statutory rule is only jurisdictional if Congress provided a “clear statement” to that effect,” Justice Jackson found § 1252(d)(1) lacked such a statement and therefore created a mere procedural requirement, one that could be equitably excused or forfeited by the Government.

Justice Jackson then went on to conclude that Santos-Zacaria had not even failed to exhaust remedies under Section 1252(d)(1) to begin with. She disagreed with the Fifth Circuit that, to satisfy the statute’s exhaustion requirement, a noncitizen must seek reconsideration from the BIA. Section 1252(d)(1) expressly requires exhaustion of administrative remedies that are available to a noncitizen “as of right,” and remedies available “as of right” are guaranteed to a litigant and are not contingent upon a court’s discretion. Because reconsideration by the BIA is discretionary, it is not the type of remedy that a noncitizen must exhaust under Section 1252(d)(1).

For both reasons—because Section 1252(d)(1)’s exhaustion requirement is not jurisdictional, and because Section 1252(d)(1) does not require a noncitizen to seek reconsideration—the Court vacated the judgment dismissing the petition and remanded the case back to the Fifth Circuit. Justices Alito and Thomas would have reversed solely on the second ground. In a brief concurrence, Alito explained that, because the second holding is dispositive, he would prefer not to reach the question of whether Section 1252(d)(1)’s exhaustion requirement is jurisdictional.