533US2
Unit: $U87
[10-21-02 18:35:10] PAGES PGT: OPIN
Cite as: 533 U. S. 678 (2001)
711
Kennedy, J., dissenting
to this country would present a very different question.”
Ante, at 682.
Congress’ power to detain aliens in connection with removal or exclusion, the Court has said, is part of the Legislature’s considerable authority over immigration matters.
See, e. g., Wong Wing v. United States, 163 U. S. 228, 235
(1896) (“Proceedings to exclude or expel would be vain if
those accused could not be held in custody pending the inquiry into their true character and while arrangements were
being made for their deportation”). It is reasonable to assume, then, and it is the proper interpretation of the INA
and § 1231(a)(6), that when Congress provided for detention
“beyond the removal period,” it exercised its considerable
power over immigration and delegated to the Attorney General the discretion to detain inadmissible and other removable aliens for as long as they are determined to be either a
flight risk or a danger to the Nation.
The majority’s interpretation, moreover, defeats the very
repatriation goal in which it professes such interest. The
Court rushes to substitute a judicial judgment for the Executive’s discretion and authority. As the Government represents to us, judicial orders requiring release of removable
aliens, even on a temporary basis, have the potential to undermine the obvious necessity that the Nation speak with
one voice on immigration and foreign affairs matters. Brief
for Respondents in No. 99–7791, p. 49. The result of the
Court’s rule is that, by refusing to accept repatriation of
their own nationals, other countries can effect the release
of these individuals back into the American community.
Ibid. If their own nationals are now at large in the United
States, the nation of origin may ignore or disclaim responsibility to accept their return. Ibid. The interference with
sensitive foreign relations becomes even more acute where
hostility or tension characterizes the relationship, for other
countries can use the fact of judicially mandated release to
their strategic advantage, refusing the return of their nation-