78
Stevens, J., dissenting
Courts or the Court of Appeals, and was barely mentioned in this Court: that respondents' challenges are not, for the most part, "ripe" for adjudication. Ante, at 57-61. I agree with Justice O'Connor, ante, p. 67 (opinion concurring in judgment), that the Court's rationale is seriously flawed. Unlike Justice O'Connor, however, see ante, at 73, I have no doubt that respondents' claims were ripe as soon as the concededly invalid regulations were promulgated.
Our test for ripeness is two pronged, "requiring us to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration." Abbott Laboratories v. Gardner, 387 U. S. 136, 149 (1967). Whether an issue is fit for judicial review, in turn, often depends on "the degree and nature of [a] regulation's present effect on those seeking relief," Toilet Goods Assn., Inc. v. Gardner, 387 U. S. 158, 164 (1967), or, put differently, on whether there has been some "concrete action applying the regulation to the claimant's situation in a fashion that harms or threatens to harm him," Lujan v. National Wildlife Federation, 497 U. S. 871, 891 (1990). As Justice O'Connor notes, we have returned to this two-part test for ripeness time and again, see ante, at 71, and there is no question but that the Abbott Laboratories formulation should govern this case.
As to the first Abbott Laboratories factor, I think it clear that the challenged regulations have an impact on respondents sufficiently "direct and immediate," 387 U. S., at 152, that they are fit for judicial review. My opinion rests, in part, on the unusual character of the amnesty program in question. As we explained in McNary:
"The Immigration Reform and Control Act of 1986 (Reform Act) constituted a major statutory response to the vast tide of illegal immigration that had produced a 'shadow population' of literally millions of undocumented aliens in the United States. . . . [I]n recognition that a large segment of the shadow population played a
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