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SUPREME COURT OF THE UNITED STATES
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No. 91-905
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JANET RENO, ATTORNEY GENERAL, et al., PETI-
TIONERS v. JENNY LISETTE FLORES et al.
on writ of certiorari to the united states court
of appeals for the ninth circuit
[March 23, 1993]

  Justice Stevens, with whom Justice Blackmun joins,
dissenting.
  The Court devotes considerable attention to debunking
the notion that -the best interests of the child- is an
-absolute and exclusive- criterion for the Government's
exercise of the custodial responsibilities that it undertakes.
Ante, at 10-12.  The Court reasons that as long as the
conditions of detention are -good enough,- ante, at 12, the
Immigration and Naturalization Service (INS) is perfectly
justified in declining to expend administrative effort and
resources to minimize such detention.  Ante, at 12, 18-20.
  As I will explain, I disagree with that proposition, for
in my view, an agency's interest in minimizing adminis-
trative costs is a patently inadequate justification for the
detention of harmless children, even when the conditions
of detention are -good enough.-  What is most curious
about the Court's analysis, however, is that the INS itself
vigorously denies that its policy is motivated even in part
by a desire to avoid the administrative burden of placing
these children in the care of -other responsible adults.-
Reply Brief for Petitioners 4.  That is, while the Court
goes out of its way to attack -the best interest of the
child- as a criterion for judging the INS detention policy,
it is precisely that interest that the INS invokes as the
sole basis for its refusal to release these children to -other
responsible adults:-
-[T]he articulated basis for the detention is that it
furthers the government's interest in ensuring the
welfare of the juveniles in its custody. . . .
      -[Respondents] argu[e] that INS' interest in further-
ing juvenile welfare does not in fact support the policy
because INS has a `blanket' policy that requires
detention without any factual showing that detention
is necessary to ensure respondents' welfare. . . .  That
argument, however, represents nothing more than a
policy disagreement, because it criticizes INS for
failing to pursue a view of juvenile welfare that INS
has not adopted, namely the view held by respondent:
that it is better for alien juveniles to be released to
unrelated adults than to be cared for in suitable,
government-monitored juvenile-care facilities, except
in those cases where the government has knowledge
that the particular adult seeking custody is unfit.
The policy adopted by INS, reflecting the traditional
view of our polity that parents and guardians are the
most reliable custodians for juveniles, is that it is
inappropriate to release alien juveniles-whose trou-
bled background and lack of familiarity with our
society and culture, give them particularized needs not
commonly shared by domestic juveniles-to adults who
are not their parents our guardians.- Id., at 4-6
(internal citations, emphasis, and quotation marks
omitted).
  Possibly because of the implausibility of the INS' claim
that it has made a reasonable judgment that detention in
government-controlled or government-sponsored facilities
is -better- or more -appropriate- for these children than
release to independent responsible adults, the Court
reaches out to justify the INS policy on a ground not only
not argued, but expressly disavowed by the INS, that is,
the tug of -other concerns that compete for public funds
and administrative attention,- ante, at 12.  I cannot share
my colleagues' eagerness for that aggressive tack in a case
involving a substantial deprivation of liberty.  Instead, I
will begin where the INS asks us to begin, with its
assertion that its policy is justified by its interest in
protecting the welfare of these children.  As I will explain,
the INS' decision to detain these juveniles despite the
existence of responsible adults willing and able to assume
custody of them is contrary to federal policy, is belied by
years of experience with both citizen and alien juveniles,
and finds no support whatsoever in the administrative
proceedings that led to the promulgation of the Agency's
regulation.  I will then turn to the Court's statutory and
constitutional analysis and explain why this ill-conceived
and ill-considered regulation is neither authorized by
242(a) of the Immigration and Nationality Act nor
consistent with fundamental notions of due process of law.
  At the outset, it is important to emphasize two critical
points.  First, this case involves the institutional detention
of juveniles who pose no risk of flight, and no threat of
harm to themselves or to others.  They are children who
have responsible third parties available to receive and
care for them; many, perhaps most, of them will never be
deported.  It makes little difference that juveniles, unlike
adults, are always in some form of custody, for detention
in an institution pursuant to the regulation is vastly
different from release to a responsible person-whether a
cousin, a godparent, a friend or a charitable organiza-
tion-willing to assume responsibility for the juvenile for
the time the child would otherwise be detained.  In
many ways the difference is comparable to the difference
between imprisonment and probation or parole.  Both
conditions can be described as -legal custody,- but the
constitutional dimensions of individual -liberty- identify
the great divide that separates the two.  See Morrissey v.
Brewer, 408 U. S. 471, 482 (1972).  The same is true
regarding the allegedly improved conditions of confine-
ment-a proposition, incidentally, that is disputed by
several amici curiae.  The fact that the present condi-
tions may satisfy standards appropriate for incarcerated
juvenile offenders does not detract in the slightest from
the basic proposition that this is a case about the whole-
sale detention of children who do not pose a risk of flight,
and who are not a threat to either themselves or the
community.
  Second, the period of detention is indefinite, and has,
on occasion, approached one year.  In its statement of
policy governing proposed contracts with private institu-
tions that may assume physical (though not legal) custody
of these minors, the INS stated that the duration of the
confinement -is anticipated to be approximately thirty (30)
days; however, due to the variables and uncertainties
inherent in each case, [r]ecipients must design programs
which are able to provide a combination of short term and
long term care.-  Juvenile Care Agreement 178a.  The
INS rule itself imposes no time limit on the period of
detention.  The only limit is the statutory right to seek
a writ of habeas corpus on the basis of a -conclusive
showing- that the Attorney General is not processing the
deportation proceeding -with such reasonable dispatch as
may be warranted by the particular facts and circum-
stances in the case . . . .-  8 U. S. C. 1252(a)(1).  Be-
cause examples of protracted deportation proceedings are
so common, the potential for a lengthy period of confine-
ment is always present.  The fact that an excessive delay
may not -invariably ensue,- ante, at 16, provides small
comfort to the typical detainee.

                            I
  The Court glosses over the history of this litigation, but
that history speaks mountains about the bona fides of the
Government's asserted justification for its regulation, and
demonstrates the complete lack of support, in either
evidence or experience, for the Government's contention
that detaining alien juveniles when there are -other
responsible parties- willing to assume care somehow
protects the interests of these children.
  The case was filed as a class action in response to a
policy change adopted in 1984 by the Western Regional
Office of the INS.  Prior to that change, the relevant
policy in the Western Region had conformed to the
practice followed by the INS in the rest of the country,
and also followed by federal magistrates throughout the
country in the administration of 504 of the Juvenile
Justice and Delinquency Prevention Act of 1974.  Consis-
tently with the consensus expressed in a number of
recommended standards for the treatment of juveniles,
that statute authorizes the release of a juvenile charged
with an offense -to his parents, guardian, custodian, or
other responsible party (including, but not limited to, the
director of a shelter-care facility) upon their promise to
bring such juvenile before the appropriate court when
requested by such court unless the magistrate determines,
after hearing, at which the juvenile is represented by
counsel, that the detention of such juvenile is required to
secure his timely appearance before the appropriate court
or to insure his safety or that of others.- 18 U. S. C.
5034 (emphasis added).  There is no evidence in the
record of this litigation that any release by the INS, or
by a federal magistrate, to an -other responsible party,-
ever resulted in any harm to a juvenile.  Thus, nation-
wide experience prior to 1984 discloses no evidence of any
demonstrated need for a change in INS policy.
  Nevertheless, in 1984 the Western Region of the INS
adopted a separate policy for minors in deportation
proceedings, but not for exclusion proceedings.  The policy
provided that minors would be released only to a parent
or lawful guardian, except -`in unusual and extraordinary
cases, at the discretion of a District Director or Chief
Patrol Agent.'- Flores v. Messe, 942 F. 2d 1352, 1355 (CA9
1991).  The regional Commissioner explained that the
policy was -necessary to assure that the minor's welfare
and safety is [sic] maintained and that the agency is
protected against possible legal liability.-  Flores v. Meese,
934 F. 2d 991, 994 (CA9 1990), vacated, 942 F. 2d 1352
(CA9 1991) (en banc).  As the Court of Appeals noted, the
Commissioner -did not cite any instances of harm which
had befallen children released to unrelated adults, nor did
he make any reference to suits that had been filed against
the INS arising out of allegedly improper releases.- 942
F. 2d, at 1355.
  The complete absence of evidence of any need for the
policy change is not the only reason for questioning the
bona fides of the Commissioner's expressed interest in the
welfare of alien minors as an explanation for his new
policy.  It is equally significant that at the time the new
policy was adopted the conditions of confinement were
admittedly -deplorable.-  How a responsible administra-
tor could possibly conclude that the practice of commin-
gling harmless children with adults of the opposite sex
in detention centers protected by barbed-wire fences,
without providing them with education, recreation, or
visitation, while subjecting them to arbitrary strip
searches, would be in their best interests is most diffi-
cult to comprehend.
  The evidence relating to the period after 1984 only
increases the doubt concerning the true motive for the
policy adopted in the Western Region.  First, as had been
true before 1984, the absence of any indication of a need
for such a policy in any other part of the country persist-
ed.  Moreover, there is evidence in the record that in the
Western Region when undocumented parents came to
claim their children, they were immediately arrested and
deportation proceedings were instituted against them.  934
F. 2d, at 1023 (Fletcher, J., dissenting).  Even if the
detention of children might serve a rational enforcement
purpose that played a part in the original decisional
process, that possibility can only add to the government's
burden of trying to establish its legitimacy.
  After this litigation was commenced, the District Court
enjoined the enforcement of the new policy because there
was no rational basis for the disparate treatment of
juveniles in deportation and exclusion proceedings.  That
injunction prompted the INS to promulgate the nation-
wide rule that is now at issue.  Significantly, however,
in neither the rulemaking proceedings nor this litigation
did the INS offer any evidence that compliance with that
injunction caused any harm to juveniles or imposed any
administrative burdens on the agency.
  The Agency's explanation for its new rule relied on four
factual assertions.  First, the rule -provides a single policy
for juveniles in both deportation and exclusion proceed-
ings.-  53 Fed. Reg. 17449 (1988).  It thus removed the
basis for the outstanding injunction.  Second, the INS had
-witnessed a dramatic increase in the number of juvenile
aliens it encounters,- most of whom were -not accompa-
nied by a parent, legal guardian, or other adult relative.-
Ibid.  There is no mention, however, of either the actual
or the approximate number of juveniles encountered, or
the much smaller number that do not elect voluntary
departure.  Third, the Agency stated that -concern for
the welfare of the juvenile will not permit release to just
any adult.-  Ibid. (emphasis added).  There is no men-
tion, however, of the obvious distinction between -just any
adult- and the broad spectrum of responsible parties that
can assume care of these children, such as extended
family members, godparents, friends, and private charita-
ble organizations.  Fourth, -the Service has neither the
expertise nor the resources to conduct home studies for
placement of each juvenile released.-  Ibid.  Again, how-
ever, there is no explanation of why any more elaborate
or expensive -home study- would be necessary to evaluate
the qualifications of apparently responsible persons than
had been conducted in the past.  There is a strange irony
in both the fact that the INS suddenly decided that
temporary releases that had been made routinely to
responsible persons in the past now must be preceded by
a -home study,- and the fact that the scarcity of its
-resources- provides the explanation for spending far more
money on detention than would be necessary to perform
its newly discovered home study obligation.
  What the Agency failed to explain may be even more
significant than what it did say.  It made no comment at
all on the uniform body of professional opinion that
recognizes the harmful consequences of the detention of
juveniles.  It made no comment on the period of deten-
tion that would be required for the completion of deporta-
tion proceedings, or the reasons why the rule places no
limit on the duration of the detention.  Moreover, there
is no explanation for the absence of any specified proce-
dure for either the consideration or the review of a
request for release to an apparently responsible person.
It is difficult to understand why an agency purportedly
motivated by the best interests of detained juveniles would
have so little to say about obvious objections to its rule.
  The promulgation of the nationwide rule did not, of
course, put an end to the pending litigation.  The District
Court again enjoined its enforcement, this time on the
ground that it deprived the members of the respondent
class of their liberty without the due process of law
required by the Fifth Amendment.  For the period of over
four years subsequent to the entry of that injunction, the
INS presumably has continued to release juveniles to
responsible persons in the Western Region without either
performing any home studies or causing any harm to alien
juveniles.  If any evidence confirming the supposed need
for the rule had developed in recent years, it is certain
that petitioners would have called it to our attention,
since the INS did not hesitate to provide us with off-the-
record factual material on a less significant point.  See
n. 16, supra.
  The fact that the rule appears to be an ill-considered
response to an adverse court ruling, rather than the
product of the kind of careful deliberation that should
precede a policy change that has an undeniably important
impact on individual liberty, is not, I suppose, a sufficient
reason for concluding that it is invalid.  It does, how-
ever, shed light on the question whether the INS has
legitimately exercised the discretion that the relevant
statute has granted to the Attorney General.  In order to
avoid the constitutional question, I believe we should first
address that statutory issue.  In the alternative, as I shall
explain, I would hold that a rule providing for the whole-
sale detention of juveniles for an indeterminate period
without individual hearings is unconstitutional.

                           II
  Section 242(a) of the Immigration and Nationality Act
provides that any -alien taken into custody may, in the
discretion of the Attorney General and pending [a] final
determination of deportability, (A) be continued in custody;
or (B) be released under bond . . . containing such condi-
tions as the Attorney General may prescribe; or (C) be
released on conditional parole.-  8 U. S. C. 1252(a)(1).
Despite the exceedingly broad language of 242(a), the
Court has recognized that -once the tyranny of literalness
is rejected, all relevant considerations for giving rational
content to the words become operative.-  United States v.
Witkovich, 353 U. S. 194, 199 (1957).  See also INS v.
National Center for Immigrants' Rights, Inc., 503 U. S. ___
(1991) (NCIR).
  Our cases interpreting 242(a) suggest that two such
-considerations- are paramount: indications of congres-
sional policy, and the principle that -a restrictive meaning
must be given if a broader meaning would generate
constitutional doubts.-  Witkovich, 353 U. S., at 199.
Thus, in Carlson v. Landon, 342 U. S. 524 (1952), we
upheld the Attorney General's detention of deportable
members of the Communist party, relying heavily on the
fact that Congress had enacted legislation, the Internal
Security Act of 1950, based on its judgment that Commu-
nist subversion threatened the Nation.  Id., at 538.  The
Attorney General's discretionary decision to detain certain
alien Communists was thus -wholly consistent with
Congress' intent,- NCIR, 503 U. S., at ___ (slip op., at 10)
(summarizing Court's analysis in Carlson).  Just last
Term, we faced the question whether the Attorney Gen-
eral acted within his authority in requiring that release
bonds issued pursuant to 242(a) contain a condition
forbidding unauthorized employment pending determina-
tion of deportability.  See NCIR.  Relying on related
statutes and the -often recognized- principle that -a
primary purpose in restricting immigration is to preserve
jobs for American workers,- id. at ___ (slip op., at 11, and
n. 8) (internal quotation marks omitted), we held that the
regulation was -wholly consistent with this established
concern of immigration law and thus squarely within the
scope of the Attorney General's statutory authority.-  Ibid.
Finally, in Witkovich, the Court construed a provision of
the Immigration and Naturalization Act which made it a
criminal offense for an alien subject to deportation to
willfully fail to provide to the Attorney General -`informa-
tion . . . as to his nationality, circumstances, habits,
associations, and activities, and such other information
. . . as the Attorney General may deem fit and proper.'-
Id., at 195.  Noting that -issues touching liberties that the
Constitution safeguards, even for an alien `person,' would
fairly be raised on the Government's [broad] view of the
statute,- we held that the statute merely authorized
inquiries calculated to determine the continued availability
for departure of aliens whose deportation was overdue.
Id., at 201-202.
  The majority holds that it was within the Attorney
General's authority to determine that parents, guardians,
and certain relatives are -presumptively appropriate
custodians- for the juveniles that come into the INS'
custody, ante, at 17, and therefore to detain indefinitely
those juveniles who are without one of the -approved-
custodians.  In my view, however, the guiding princi-
ples articulated in Carlson, NCIR and Witkovich compel
the opposite conclusion.
  Congress has spoken quite clearly on the question of the
plight of juveniles that come into federal custody.  As
explained above, 504 of the Juvenile Justice and Delin-
quency Prevention Act of 1974 demonstrates Congress'
clear preference for release, as opposed to detention.  See
S. Rep. No. 93-1011, p. 56 (1974) (-[Section 504] establish-
es a presumption for release of the juvenile-).  And,
most significantly for this case, it demonstrates that
Congress has rejected the very presumption that the INS
has made in this case; for under the Act juveniles are not
to be detained when there is a -responsible party,- 18
U. S. C. 5034, willing and able to assume care for the
child.  It is no retort that 504 is directed at citizens,
whereas the INS' regulation is directed at aliens, ante, at
12-13, 20, n. 8; Reply Brief for Petitioners 5, n. 4.  As ex-
plained above, the INS justifies its policy as serving the
best interests of the juveniles that come into its custody.
In seeking to dismiss the force of the Juvenile Justice and
Delinquency Act as a source of congressional policy, the
INS is reduced to the absurdity of contending that Con-
gress has authorized the Attorney General to treat alleg-
edly illegal aliens better than American citizens.  In my
view, Congress has spoken on the detention of juveniles,
and has rejected the very presumption upon which the
INS relies.
  There is a deeper problem with the regulation, however,
one that goes beyond the use of the particular presump-
tion at issue in this case.  Section 242(a) grants to the
Attorney General the discretion to detain individuals
pending deportation.  As we explained in Carlson, a
-purpose to injure [the United States] could not be im-
puted generally to all aliens subject to deportation, so
discretion was placed by the 1950 Act in the Attorney
General to detains aliens without bail . . . .-  342 U. S.,
at 538.  In my view, Congress has not authorized the INS
to rely on mere presumptions as a substitute for the
exercise of that discretion.
  The Court's analysis in Carslon makes that point clear.
If ever there were a factual predicate for a -reasonable
presumptio[n],- ante at 21, it was in that case, because
Congress had expressly found that the Communism posed
a -clear and present danger to the security of the United
States,- and that mere membership in the Communist
Party was a sufficient basis for deportation.  Yet, in
affirming the Attorney General's detention of four alien
Communists, the Court was careful to note that the
Attorney General had not merely relied on a presumption
that alien Communists posed a risk to the United States,
and that therefore they should be detained, but that the
detention order was grounded in -evidence of membership
plus personal activity in supporting and extending the
Party's philosophy concerning violence,- 342 U. S., at 541
(emphasis added).  In fact, the Court expressly noted that
-[t]here is no evidence or contention that all persons
arrested as deportable under the . . . Internal Security Act
for Communist membership are denied bail,- and that bail
is allowed -in the large majority of cases.-  Id., at
541-542.
  By the same reasoning, the Attorney General is not
authorized, in my view, to rely on a presumption regard-
ing the suitability of potential custodians as a substitute
for determining whether there is, in fact, any reason that
a particular juvenile should be detained.  Just as a
-purpose to injure could not be imputed generally to all
aliens,- id., at 538, the unsuitability of certain unrelated
adults cannot be imputed generally to all adults so as to
lengthen the detention to which these children are subject-
ed.  The particular circumstances facing these juveniles
are too diverse, and the right to be free from government
detention too precious, to permit the INS to base the
crucial determinations regarding detention upon a mere
presumption regarding -appropriate custodians,- ante, at
17.  I do not believe that Congress intended to authorize
such a policy.
  And finally, even if it were not clear to me that the
Attorney General has exceeded his authority under
242(a), I would still hold that 242(a) requires an individ-
ualized determination as to whether detention is necessary
when a juvenile does not have an INS-preferred custodian
available to assume temporary custody.  -`When the
validity of an act of Congress is drawn in question, and
even if a serious doubt of constitutionality is raised, it is
a cardinal principle that this Court will first ascertain
whether a construction of the statute is fairly possible by
which the question may be avoided.'-  Witkovich, 353
U. S., at 201-202 (quoting Crowell v. Benson, 285  U. S.
22, 62 (1932)).  The detention of juveniles on the basis of
a general presumption as to the suitability of particular
custodians without an individualized determination as to
whether that presumption bears any relationship at all to
the facts of a particular case, implicates an interest at the
very core of the Due Process Clause, the constitutionally
protected interest in freedom from bodily restraint.  As
such, it raises even more serious constitutional concerns
than the INS policy invalidated in Witkovich.  Legislative
grants of discretionary authority should be construed to
avoid constitutional issues and harsh consequences that
were almost certainly not contemplated or intended by
Congress.  Unlike my colleagues, I would hold that the
Attorney General's actions in this case are not authorized
by 242(a).

                           III
  I agree with Justice O'Connor that respondents -have
a constitutionally protected interest in freedom from
institutional confinement . . . [that] lies within the core
of the Due Process Clause.-  Ante, at 1 (concurring
opinion).  Indeed, we said as much just last Term.  See
Foucha v. Louisiana, 504 U. S. ___, ___ (1992) (slip op.,
at 8) (-Freedom from bodily restraint has always been at
the core of liberty protected by the Due Process Clause
from arbitrary governmental action-).  Ibid. (-We have
always been careful not to `minimize the importance and
fundamental nature' of the individual's right to liberty-)
(quoting United States v. Salerno, 481 U. S. 739, 750
(1987)).
    I am not as convinced as she, however, that -the Court
today does not hold otherwise.-  Ante, at 1 (concurring
opinion).  For the children at issue in this case are being
confined in government-operated or government-selected
institutions, their liberty has been curtailed, and yet the
Court defines the right at issue as merely the -alleged
right of a child who has no available parent, close rela-
tive, or legal guardian, and for whom the government is
responsible, to be placed in the custody of a willing-and-
able private custodian rather than of a government-
operated or government-selected child-care institution.-
Ante, at 9.  Finding such a claimed constitutional right
to be -nove[l],- ante, at 10, and certainly not -fundamen-
tal,- ante, at 12, 19, the Court concludes that these
juveniles' alleged -right- to be released to -other responsi-
ble adults- is easily trumped by the government's interest
in protecting the welfare of these children and, most
significantly, by the INS' interest in avoiding the admin-
istrative inconvenience and expense of releasing them to
a broader class of custodians.  Ante, at 12, 18-20.
    In my view, the only -novelty- in this case is the Court's
analysis.  The right at stake in this case is not the right
of detained juveniles to be released to one particular
custodian rather than another, but the right not to be
detained in the first place.  -In our society liberty is the
norm, and detention prior to trial or without trial is the
carefully limited exception.-  Salerno, 481 U. S., at 755
(1987).  It is the government's burden to prove that
detention is necessary, not the individual's burden to
prove that release is justified.  And, as Justice O'Connor
explains, that burden is not easily met, for when govern-
ment action infringes on this most fundamental of rights,
we have scrutinized such conduct to ensure that the
detention serves both -legitimate and compelling- inter-
ests, id., at 749, and, in addition, is implemented in a
manner that is -carefully limited- and -narrowly focused.-
Foucha, 504 U. S., at ___ (slip op., at 9).
    On its face, the INS' regulation at issue in this case
cannot withstand such scrutiny.  The United States no
doubt has a substantial and legitimate interest in protect-
ing the welfare of juveniles that come into its custody.
Schall v. Martin, 467 U. S. 253, 266 (1984).  However, a
blanket rule that simply presumes that detention is more
appropriate than release to responsible adults is not
narrowly focused on serving that interest.  Categorical
distinctions between cousins and uncles, or between
relatives and godparents or other responsible persons, are
much too blunt instruments to justify wholesale depriva-
tions of liberty.  Due process demands more, far more.
If the government is going to detain juveniles in order to
protect their welfare, due process requires that it demon-
strate, on an individual basis, that detention in fact
serves that interest.  That is the clear command of our
cases.     See, e.g., Foucha, 504 U. S., at ___ (slip op., at
10) (finding due process violation when individual who is
detained on grounds of -dangerousness- is denied right to
adversary hearing in -which the State must prove by clear
and convincing evidence that he is demonstrably danger-
ous to the community-); Salerno, 481 U. S., at 742 (find-
ing no due process violation when detention follows
hearing to determine whether detention is necessary to
prevent flight or danger to community); Schall v. Martin,
467 U. S., at 263 (same; hearing to determine whether
there is -serious risk- that if released juvenile will commit
a crime); Gerstein v. Pugh, 420 U. S. 103, 126 (1975)
(holding that Fourth Amendment requires judicial determi-
nation of probable cause as prerequisite to detention);
Greenwood v. United States, 350 U. S. 366, 367 (1956)
(upholding statute in which individuals charged with or
convicted of federal crimes may be committed to the
custody of the Attorney General after judicial determina-
tion of incompetency); Carlson v. Landon, 342 U. S., at
541 (approving Attorney General's discretionary decision
to detain four alien Communists based on their member-
ship and activity in Communist party); Ludecke v.
Watkins, 335 U. S. 160, 163, n. 5 (1948) (upholding Attor-
ney General's detention and deportation of alien under the
Alien Enemy Act; finding of -dangerousness- based on
evidence adduced at administrative hearings).  See also
Stanley v. Illinois, 405 U. S. 645, 657-658 (1972) (State
cannot rely on presumption of unsuitability of unwed
fathers; State must make individualized determinations
of parental fitness); Carrington v. Rash, 380 U. S. 89,
95-96 (1965) (striking down blanket exclusion depriving
all servicemen stationed in State of right to vote when
interest in limiting franchise to bona fide residents could
have been achieved by assessing a serviceman's claim to
residency on an individual basis).
    If, in fact, the Due Process Clause establishes a powerful
presumption against unnecessary official detention that is
not based on an individualized evaluation of its justifica-
tion, why has the INS refused to make such determina-
tions?  As emphasized above, the argument that detention
is more appropriate for these children than release to
responsible adults is utterly lacking in support, in either
the history of this litigation, or expert opinion.  Presum-
ably because of the improbability of the INS' asserted
justification for its policy, the Court does not rely on it as
the basis for upholding the regulation.  Instead, the Court
holds that even if detention is not really better for these
juveniles than release to responsible adults, so long as it
is -good enough,- ante, at 12, the INS need not spend the
time and money that would be necessary to actually serve
the -best interests- of these children.  Id., at 11-12.  In
other words, so long as its cages are gilded, the INS need
not expend its administrative resources on a program that
would better serve its asserted interests and that would
not need to employ cages at all.
    The linchpin in the Court's analysis, of course, is its
narrow reading of the right at stake in this case.  By
characterizing it as some insubstantial and nonfundamen-
tal right to be released to an unrelated adult, the Court
is able to escape the clear holding of our cases that
-administrative convenience- is a thoroughly inadequate
basis for the deprivation of core constitutional rights.
Ante, at 19 (citing, for comparison, Stanley v. Illinois, 405
U. S. 645 (1972)).  As explained above, however, the right
at issue in this case is not the right to be released to an
unrelated adult; it is the right to be free from government
confinement that is the very essence of the liberty pro-
tected by the Due Process Clause.  It is a right that
cannot be defeated by a claim of a lack of expertise or a
lack of resources.    In my view, then, Stanley v. Illinois is
not a case to look to for comparison, but one from which
to derive controlling law.  For in Stanley, we flatly
rejected the premise underlying the Court's holding today.
    In that case, we entertained a due process challenge to
a statute under which children of unwed parents, upon
the death of the mother, were declared wards of the State
without any hearing as to the father's fitness for custody.
In striking down the statute, we rejected the argument
that a State's interest in conserving administrative re-
sources was a sufficient basis for refusing to hold a
hearing as to a father's fitness to care for his children:
          -Procedure by presumption is always cheaper and
easier than individualized determination.  But when,
as here, the procedure forecloses the determinative
issues of competence and care, when it explicitly
disdains present realities in deference to past formali-
ties, it needlessly risks running roughshod over the
important interests of both parent and child.  It
therefore cannot stand.
          -Bell v. Burson, 402 U. S. 535 (1971), held that
the State could not, while purporting to be concerned
with fault in suspending a driver's license, deprive a
citizen of his license without a hearing that would
assess fault.  Absent fault, the State's declared inter-
est was so attenuated that administrative convenience
was insufficient to excuse a hearing where evidence
of fault could be considered.  That drivers involved in
accidents, as a statistical matter, might be very likely
to have been wholly or partially at fault did not
foreclose hearing and proof on specific cases before
licenses were suspended.
        -We think the Due Process Clause mandates a
similar result here.  The State's interest in caring for
Stanley's children is de minimis if Stanley is shown
to be a fit father.  It insists on presuming rather than
proving Stanley's unfitness solely because it is more
convenient to presume than to prove.  Under the Due
Process Clause that advantage is insufficient to justify
refusing a father a hearing when the issue at stake
is the dismemberment of his family.- 405 U. S., at
656-658.
Just as the State of Illinois could not rely on the adminis-
trative convenience derived from denying fathers a hear-
ing, the INS may not rely on the fact that -other concerns
. . . compete for public funds and administrative atten-
tion,- ante, at 12, as an excuse to keep from doing what
due process commands: determining, on an individual
basis, whether the detention of a child in a government-
operated or government-sponsored institution actually
serves the INS' asserted interest in protecting the welfare
of that child.
    Ultimately, the Court is simply wrong when it asserts
that -freedom from physical restraint- is not at issue in
this case.  That is precisely what is at issue.  The Court's
assumption that the detention facilities used by the INS
conform to the standards set forth in the partial settle-
ment in this case has nothing to do with the fact that the
juveniles who are not released to relatives or responsible
adults are held in detention facilities.  They do not have
the -freedom from physical restraint- that those who are
released do have.  That is what this case is all about.
That is why the respondent class continues to litigate.
These juveniles do not want to be committed to institu-
tions that the INS and the Court believe are -good
enough- for aliens simply because they conform to stan-
dards that are adequate for the incarceration of juvenile
delinquents.  They want the same kind of liberty that the
Constitution guarantees similarly situated citizens.  And
as I read our precedents, the omission of any provision for
individualized consideration of the best interests of the
juvenile in a rule authorizing an indefinite period of
detention of presumptively innocent and harmless children
denies them precisely that liberty.
    I respectfully dissent.