An alien arriving in the United States must be inspected by an immigration official, 66 Stat. 198, as amended, 8 U. S. C. § 1225(a)(3), and, unless he is found "clearly and beyond a doubt entitled to be admitted," must generally undergo removal proceedings to determine admissibility, § 1225(b) (2)(A). Meanwhile the alien may be detained, subject to the Secretary's discretionary authority to parole him into the country. See § 1182(d)(5); 8 CFR § 212.5 (2004). If, at the conclusion of removal proceedings, the alien is determined to be inadmissible and ordered removed, the law provides that the Secretary of Homeland Security "shall remove the alien from the United States within a period of 90 days," 8 U. S. C. § 1231(a)(1)(A). These cases concern the Secretary's authority to continue to detain an inadmissible alien subject to a removal order after the 90-day removal period has elapsed.
Sergio Suarez Martinez (respondent in No. 03-878) and Daniel Benitez (petitioner in No. 03-7434) arrived in the United States from Cuba in June 1980 as part of the Mariel boatlift, see Palma v. Verdeyen, 676 F.2d 100, 101 (CA4 1982) (describing circumstances of Mariel boatlift), and were paroled into the country pursuant to the Attorney General's authority under 8 U. S. C. § 1182(d)(5).
The Attorney General revoked Martinez's parole in December 2000. Martinez was taken into custody by the INS, and removal proceedings were commenced against him. Pet. for Cert. in No. 03-878, at 8. An Immigration Judge found him inadmissible by reason of his prior convictions, § 1182(a)(2)(B), and lack of sufficient documentation, § 1182(a)(7)(A)(i)(I), and ordered him removed to Cuba. Martinez did not appeal. Pet. for Cert. in No. 03-878, at 8. The INS continued to detain him after expiration of the 90-day removal period, and he remained in custody until he was released pursuant to the District Court order that was affirmed by the Court of Appeals' decision on review here. Id., at 9.
Benitez's parole was revoked in 1993 (shortly after he was imprisoned for his convictions of that year), and the INS immediately initiated removal proceedings against him. In December 1994, an Immigration Judge determined Benitez to be excludable and ordered him deported under §§ 1182(a)(2)(B) and 1182(a)(7)(A)(i)(I) (1994 ed. and Supp. V).
Both aliens filed a petition for a writ of habeas corpus under 28 U. S. C. § 2241 to challenge their detention beyond the 90-day removal period. In Martinez's case, the District Court for the District of Oregon accepted that removal was not reasonably foreseeable, and ordered the INS to release Martinez under conditions that the INS believed appropriate. Martinez v. Smith, No. CV 02-972-PA (Oct. 30, 2002), App. to Pet. for Cert. in No. 03-878, p. 2a. The Court of Appeals for the Ninth Circuit summarily affirmed, citing its decision in Xi v. INS, 298 F.3d 832 (2002). Martinez v. Ashcroft, No. 03-35053 (Aug. 18, 2003), App. to Pet. for Cert. in No. 03-878, at 1a. In Benitez's case, the District Court for the Northern District of Florida also concluded that removal would not occur in the "foreseeable future," but nonetheless denied the petition. Benitez v. Wallis, Case No. 5:02cv19 MMP (July 11, 2002), pp. 2, 4, App. in
Title 8 U. S. C. § 1231(a)(6) provides, in relevant part, as follows:
By its terms, this provision applies to three categories of aliens: (1) those ordered removed who are inadmissible under § 1182, (2) those ordered removed who are removable under § 1227(a)(1)(C), § 1227(a)(2), or § 1227(a)(4), and (3) those ordered removed whom the Secretary determines to be either a risk to the community or a flight risk. In Zadvydas v. Davis, 533 U.S. 678 (2001), the Court interpreted this provision to authorize the Attorney General (now the Secretary) to detain aliens in the second category only as long as "reasonably necessary" to remove them from the country. Id., at 689, 699. The statute's use of "may," the Court said, "suggests discretion," but "not necessarily ... unlimited discretion. In that respect the word `may' is ambiguous." Id., at 697. In light of that perceived ambiguity and the "serious constitutional threat" the Court believed to be posed by indefinite detention of aliens who had been admitted to the country, id., at 699, the Court interpreted the statute to permit only detention that is related to the statute's "basic purpose [of] effectuating an alien's removal," id., at 696-699.
The question presented by these cases, and the question that evoked contradictory answers from the Ninth and Eleventh Circuits, is whether this construction of § 1231(a)(6) that we applied to the second category of aliens covered by the statute applies as well to the first — that is, to the category of aliens "ordered removed who [are] inadmissible under [§]1182." We think the answer must be yes. The operative language of § 1231(a)(6), "may be detained beyond the removal period," applies without differentiation to all three categories of aliens that are its subject. To give these same words a different meaning for each category would be to invent a statute rather than interpret one. As the Court in Zadvydas recognized, the statute can be construed "literally" to authorize indefinite detention, id., at 689, or (as the Court ultimately held) it can be read to "suggest [less than] unlimited discretion" to detain, id., at 697. It cannot, however, be interpreted to do both at the same time.
The dissent's belief that Zadvydas compels this result rests primarily on that case's statement that "[a]liens who have not yet gained initial admission to this country would present a very different question," id., at 682. See post, at 390, 393 (opinion of THOMAS, J.). This mistakes the reservation of a question with its answer. Neither the opinion of the Court nor the dissent in Zadvydas so much as hints that the Court adopted the novel interpretation of § 1231(a)(6) proposed by today's dissent. The opinion in that case considered
The dissent's contention that our reading of Zadvydas is "implausible," post, at 389, is hard to reconcile with the fact that it is the identical reading espoused by the Zadvydas dissenters, who included the author of today's dissent. Worse still, what the Zadvydas dissent did find "not . . . plausible" was precisely the reading adopted by today's dissent:
The Zadvydas dissent later concluded that the release of "Mariel Cubans and other illegal, inadmissible aliens . . . would seem a necessary consequence of the majority's construction of the statute." Id., at 717 (emphasis added). Tellingly, the Zadvydas majority did not negate either charge.
The Government, joined by the dissent, argues that the statutory purpose and the constitutional concerns that influenced our statutory construction in Zadvydas are not present for aliens, such as Martinez and Benitez, who have not been admitted to the United States. Be that as it may, it cannot justify giving the same detention provision a different meaning when such aliens are involved. It is not at all unusual to give a statute's ambiguous language a limiting construction called for by one of the statute's applications, even though other of the statute's applications, standing alone, would not support the same limitation. The lowest common denominator, as it were, must govern. See, e. g., Leocal v. Ashcroft, ante, at 11-12, n. 8 (explaining that, if a statute has criminal applications, "the rule of lenity applies" to the Court's interpretation of the statute even in immigration cases "[b]ecause we must interpret the statute consistently, whether we encounter its application in a criminal or noncriminal context"); United States v. Thompson/Center Arms Co., 504 U.S. 505, 517-518, and n. 10 (1992) (plurality opinion) (employing the rule of lenity to interpret "a tax statute . . . in a civil setting" because the statute "has criminal applications"); id., at 519 (SCALIA, J., concurring in judgment) (also invoking the rule of lenity). In other words, when deciding which of two plausible statutory constructions to adopt, a court must consider the necessary consequences of its choice. If one of them would raise a multitude of constitutional
The dissent takes issue with this maxim of statutory construction on the ground that it allows litigants to "attack statutes as constitutionally invalid based on constitutional doubts concerning other litigants or factual circumstances" and thereby to effect an "end run around black-letter constitutional doctrine governing facial and as-applied constitutional challenges." Post, at 396. This accusation misconceives — and fundamentally so — the role played by the canon of constitutional avoidance in statutory interpretation. The canon is not a method of adjudicating constitutional questions by other means. See, e. g., NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 502 (1979) (refusing to engage in extended analysis in the process of applying the avoidance canon "as we would were we considering the constitutional issue"); see also Vermeule, Saving Constructions, 85 Geo. L. J. 1945, 1960-1961 (1997) (providing examples of cases where the Court construed a statute narrowly to avoid a constitutional question ultimately resolved in favor of the broader reading). Indeed, one of the canon's chief justifications is that it allows courts to avoid the decision of constitutional questions. It is a tool for choosing between competing plausible interpretations of a statutory text, resting on the reasonable presumption that Congress did not intend the alternative which raises serious constitutional doubts.
In support of its contention that we can give § 1231(a)(6) a different meaning when it is applied to nonadmitted aliens, the Government relies most prominently upon our decision in Crowell v. Benson, 285 U.S. 22 (1932). Brief for Petitioners in No. 03-878, p. 29; Brief for Respondent in No. 03-7434, p. 29. That case involved a statutory provision that gave the Deputy Commissioner of the United States Employees' Compensation Commission "`full power and authority to hear and determine all questions in respect of'" claims under the Longshoremen's and Harbor Workers' Compensation Act. 285 U. S., at 62. The question presented was whether this provision precluded review of the Deputy Commissioner's determination that the claimant was an employee, and hence covered by the Act. The Court held that, although the statute could be read to bar judicial review altogether, it was also susceptible of a narrower reading that permitted judicial review of the fact of employment, which was an "essential condition precedent to the right to make the claim." Ibid. The Court adopted the latter construction in order to avoid serious constitutional questions that it believed would
The dissent, on the other hand, relies on our recent cases interpreting 28 U. S. C. § 1367(d). Raygor v. Regents of Univ. of Minn., 534 U.S. 533 (2002), held that this provision does not include, in its tolling of limitations periods, claims against States that have not waived their immunity from suit in federal court because the statutory language fails to make "`"unmistakably clear,"'" as it must in provisions subjecting States to suit, that such States were covered. Id., at 543-546. A subsequent decision, Jinks v. Richland County, 538 U.S. 456 (2003), held that the tolling provision does apply to claims against political subdivisions of States, since the requirement of the unmistakably clear statement did not apply to those entities. Id., at 466. This progression of decisions does not remotely establish that § 1367(d) has two different meanings, equivalent to the unlimited-detention/ limited-detention meanings of § 1231(a)(6) urged upon us here. They hold that the single and unchanging disposition of § 1367(d) (the tolling of limitations periods) does not apply to claims against States that have not consented to be sued in federal court.
In passing in its briefs, but more intensively at oral argument, the Government sought to justify its continued detention of these aliens on the authority of § 1182(d)(5)(A).
* * *
The Government fears that the security of our borders will be compromised if it must release into the country inadmissible aliens who cannot be removed. If that is so, Congress can attend to it.
Since the Government has suggested no reason why the period of time reasonably necessary to effect removal is longer for an inadmissible alien, the 6-month presumptive detention period we prescribed in Zadvydas applies. See 533 U. S., at 699-701. Both Martinez and Benitez were detained well beyond six months after their removal orders became final. The Government having brought forward nothing to indicate that a substantial likelihood of removal subsists despite the passage of six months (indeed, it concedes that it is no longer even involved in repatriation negotiations with Cuba); and the District Court in each case having determined that removal to Cuba is not reasonably foreseeable; the petitions for habeas corpus should have been
It is so ordered.
JUSTICE O'CONNOR, concurring.
I join the Court's opinion. I write separately to emphasize that, even under the current statutory scheme, it is possible for the Government to detain inadmissible aliens for more than six months after they have been ordered removed. For one thing, the 6-month presumption we described in Zadvydas v. Davis, 533 U.S. 678 (2001), is just that—a presumption. The Court notes that the Government has not suggested here any reason why it takes longer to effect removal of inadmissible aliens than it does to effect removal of other aliens. It is conceivable, however, that a longer period is "reasonably necessary," id., at 689, to effect removal of inadmissible aliens as a class. If the Government shows that to be true, then detention beyond six months will be lawful within the meaning we ascribed to 8 U.S.C. § 1231(a)(6) in Zadvydas.
Moreover, the Government has other statutory means for detaining aliens whose removal is not foreseeable and whose presence poses security risks. Upon certifying that he has "reasonable grounds to believe" an alien has engaged in certain terrorist or other dangerous activity specified by statute, 8 U. S. C. § 1226a(a)(3) (2000 ed., Supp. II), the Secretary of Homeland Security may detain that alien for successive 6-month periods "if the release of the alien will threaten the national security of the United States or the safety of the community or any person," § 1226a(a)(6).
Finally, any alien released as a result of today's holding remains subject to the conditions of supervised release. See § 1231(a)(3); 8 CFR §241.5 (2004). And, if he fails to comply with the conditions of release, he will be subject to criminal
JUSTICE THOMAS, with whom THE CHIEF JUSTICE joins as to Part I-A, dissenting.
Title 8 U. S. C. § 1231(a)(6) states that aliens whom the Secretary of Homeland Security has ordered removed "may be detained beyond the removal period." Nevertheless, in Zadvydas v. Davis, 533 U.S. 678 (2001), this Court construed this provision "to contain an implicit `reasonable time' limitation" on the Secretary's power to detain admitted aliens "[b]ased on our conclusion that indefinite detention of" those aliens "would raise serious constitutional concerns." Id., at 682. "Aliens who have not yet gained initial admission to this country," the Court assured us, "would present a very different question." Ibid.
Today, the Court holds that this constitutional distinction—which "made all the difference" to the Zadvydas Court, id., at 693—is actually irrelevant, because "[t]he operative language of § 1231(a)(6) ... applies without differentiation to all three categories of aliens that are its subject." Ante, at 378. While I wholeheartedly agree with the Court's fidelity to the text of § 1231(a)(6), the Court's analysis cannot be squared with Zadvydas. And even if it could be so squared, Zadvydas was wrongly decided and should be overruled. I respectfully dissent.
I begin by addressing the majority's interpretation of Zadvydas. The Court's interpretation is not a fair reading of that case. It is also not required by any sound principle of statutory construction of which I am aware. To the contrary,
The majority's reading of Zadvydas is implausible. Zadvydas held that interpreting § 1231(a)(6) to authorize indefinite detention of admitted aliens later found removable would raise serious due process concerns. 533 U. S., at 690-696. The Court therefore read the statute to permit the Attorney General (now the Secretary of Homeland Security) to detain admitted aliens only as long as reasonably necessary to remove them from the country. Id., at 699.
The majority concedes that Zadvydas explicitly reserved the question whether its statutory holding as to admitted aliens applied equally to inadmissible aliens. Ante, at 379. This reservation was front and center in Zadvydas. It appeared in the introduction and is worth repeating in full:
The Court reserved this question because the constitutional questions raised by detaining inadmissible aliens are different from those raised by detaining admitted aliens. It stated that the detention period in § 1231(a)(6) was limited
The majority's reading of Zadvydas is inconsistent with these qualifications. If it were true that Zadvydas' interpretation of § 1231(a)(6) applied to all aliens regardless of the constitutional concerns involved in each case, then the question of how § 1231(a)(6) applies to them would not be "very different" depending on the alien before the Court. The question would be trivial because the text of § 1231(a)(6) plainly does not distinguish between admitted and nonadmitted aliens. There would also have been no need for the Court to go out of its way to leave aside "terrorism or other special circumstances," id., at 696, or to disavow "consider[ation of] the political branches' authority to control entry into the United States," id., at 695, for the construction the majority extracts from Zadvydas would have applied across the board, ibid. And the Court's rationalization that its construction would therefore "leave no unprotected spot in the Nation's armor," id., at 695-696 (internal quotation marks omitted), would have been incorrect. The constitutional distinctions that pervade Zadvydas are evidence that the "very different" statutory question it reserved turned on them.
The Zadvydas Court thus tethered its reading of § 1231(a)(6) to the specific class of aliens before it. The term this Court read into the statute was not simply a presumptive
The Court's reasons for departing from this reading of Zadvydas are unpersuasive. The Court says that its reading is necessary to avoid "invent[ing] a statute rather than interpret[ing] one," ante, at 378; to preclude "giving the same detention provision a different meaning" depending on the aliens before the Court, ante, at 380 (emphasis in original); and to forestall establishing "the dangerous principle that judges can give the same statutory text different meanings in different cases," ante, at 386. I agree that we should adopt none of these principles, but this is no warrant for the reading of Zadvydas that the majority advocates. Zadvydas established a single and unchanging, if implausible, meaning of § 1231(a)(6): that the detention period authorized by § 1231(a)(6) depends not only on the circumstances surrounding a removal, but also on the type of alien ordered removed.
I grant that this understanding of Zadvydas could result in different detention periods for different classes of aliens— indefinite detention for some, limited detention for others.
In support of its reading of Zadvydas, the Court relies on a statement in a dissent in Zadvydas that § 1231(a)(6) could not be given a different reading for inadmissible aliens. Ante, at 379-380 (citing 533 U. S., at 710-711, 717 (opinion of KENNEDY, J.)). That dissenting view, as the very quotation the majority stresses demonstrates, rested on the dissent's premise that "it is not a plausible construction of § 1231(a)(6) to imply a time limit as to one class but not to another." Id., at 710. But the Zadvydas majority disagreed with that assumption and adopted a contrary interpretation of § 1231(a)(6). For as the dissent recognized, Zadvydas' "logic might be that inadmissible and removable aliens can be treated differently." Ibid. That was Zadvydas' logic precisely, as its repeated statements limiting its decision to inadmissible aliens show. To interpret Zadvydas properly, we must take its logic as given, not the logic of the reductio ad absurdum of Zadvydas that I joined in dissent.
The majority strains to recharacterize Zadvydas because it thinks that "[i]t is not at all unusual to give a statute's ambiguous language a limiting construction called for by one of the statute's applications, even though other of the statute's applications, standing alone, would not support the same limitation." Ante, at 380. In other words, it claims, "[t]he lowest common denominator, as it were, must govern." Ibid. I disagree.
Beyond Zadvydas, the Court offers scant support for the idea that statutes should be stripped down to their "lowest common denominator[s]." It attempts to distinguish Jinks v. Richland County, 538 U.S. 456 (2003), and Raygor v. Regents of Univ. of Minn., 534 U.S. 533 (2002), ante, at 383, and n. 6, yet these cases employed exactly the procedure that the majority today says is impermissible. They construed 28 U. S. C. § 1367(d),
This passage reads the meaning of § 1367(d)—which applies to "any claim asserted under subsection (a)" of § 1367—to hinge on the constitutional context. The Court is correct that Jinks and Raygor "hold that the single and unchanging disposition of § 1367(d) ... does not apply to claims against States." Ante, at 383. But as the Court concedes, Jinks reached that holding only after analyzing whether the constitutional doubts at issue in Raygor applied to the county defendant. Ante, at 383-384, n. 6. The Court's failure to do the same here cannot be reconciled with Jinks and Raygor: the Court should ask whether the constitutional concerns that justified the requirement of a clear statement in Zadvydas apply as well to inadmissible aliens.
The Court's "lowest common denominator" principle is also in tension with Salinas v. United States, 522 U.S. 52 (1997). There, we rejected an argument that the federal bribery statute, 18 U.S.C. § 666(a)(1)(B), should be construed to avoid constitutional doubts, in part on the ground that there was "no serious doubt about the constitutionality of § 666(a)(1)(B) as applied to the facts of this case." 522 U. S., at 60 (emphasis added). Unlike the Court's approach to avoidance today, we disclaimed examination of the constitutionality of applications not before the Court: "Whatever might be said about § 666(a)(1)(B)'s application in other cases, the application of § 666(a)(1)(B) ... did not extend federal power beyond its proper bounds." Id., at 61. The Court is mistaken that this passage in Salinas was a rejection of a constitutional argument on its merits. Ante, at 381, n. 5. Salinas, the petitioner, phrased his question presented solely in terms of the proper statutory interpretation of
More importantly, however, the Court's "lowest common denominator" principle is inconsistent with the history of the canon of avoidance and is likely to have mischievous consequences. The modern canon of avoidance is a doctrine under which courts construe ambiguous statutes to avoid constitutional doubts, but this doctrine has its origins in a very different form of the canon. Traditionally, the avoidance canon was not a doctrine under which courts read statutes to avoid mere constitutional doubts. Instead, it commanded courts, when faced with two plausible constructions of a statute—one constitutional and the other unconstitutional—to choose the constitutional reading.
This history suggests that the "lowest common denominator" principle is mistaken. Courts applying the modern version of the canon of avoidance should no more look to the rights of third parties than do courts using the traditional version. Under modern avoidance, in other words, an ambiguous statute should be read to avoid a constitutional doubt only if the statute is constitutionally doubtful as applied to the litigant before the court (again, unless the constitutional challenge involves third-party rights). Yet the Court's lowest common denominator principle allows a limiting construction of an ambiguous statute prompted by constitutional doubts to infect other applications of the statute— even if the statute raises no constitutional doubt as applied to the specific litigant in a given case and even if the constitutionally unproblematic application of the statute to the litigant is severable from the constitutionally dubious applications. The lowest common denominator principle thus allows an end run around black-letter constitutional doctrine governing facial and as-applied constitutional challenges to statutes: A litigant ordinarily cannot attack statutes as constitutionally invalid based on constitutional doubts concerning other litigants or factual circumstances.
The Court misses the point by answering that the canon of constitutional avoidance "is not a method of adjudicating constitutional questions by other means," and that the canon rests on a presumption that "Congress did not intend the alternative which raises serious constitutional doubts." Ante, at 381. That is true, but in deciding whether a plausible interpretation "raises serious constitutional doubts," a court must employ the usual rules of constitutional adjudication.
All of this shows why the sole support the majority offers for its lowest common denominator principle can be squared with my analysis. That support is a plurality opinion of this Court (reaffirmed by footnote dictum in Leocal v. Ashcroft, ante, at 11-12, n. 8), that stated that the rule of lenity applies to statutes so long as they have some criminal applications. Ante, at 380 (citing United States v. Thompson/Center Arms Co., 504 U.S. 505, 517 (1992)). To the extent that the rule of lenity is a constitutionally based clear statement rule, it is like vagueness doctrine, as its purpose is to ensure that those subjected to criminal prosecution have adequate notice of the conduct that the law prohibits. Cf., e. g., McBoyle v. United States, 283 U.S. 25, 27 (1931). Thompson/Center Arms is thus distinguishable, because our rules governing third-party
The cases at bar illustrate well the exception to the normal operation of as-applied constitutional adjudication that the Court's approach creates. Congress explicitly provided that unconstitutional applications of § 1231(a)(6) should be severed from constitutional applications.
The Court misapprehends my interpretive approach. It suggests that I would "spare [us] the necessity of ever finding a statute unconstitutional as applied," ante, at 384, and "would render every statute a chameleon, its meaning subject to change depending on the presence or absence of constitutional concerns in each individual case," ante, at 382. My approach does none of this. I simply would read ambiguous statutes to avoid as-applied constitutional doubts only if those doubts are present in the case before the Court. This leaves plenty of room for as-applied invalidation of statutes that are unambiguously unconstitutional. Nor would I permit a court to read every statute's meaning to depend on constitutional concerns. That is permissible, in my view, only if the statute is ambiguous. Granted, I am thereby guilty of leaving courts free to interpret ambiguous statutes "as becoming inoperative when they `approach constitutional limits.'" Ante, at 384. That is hardly an absurd result— unless one considers the modern canon of constitutional
In truth, the Court's aggressive application of modern constitutional avoidance doctrine poses the greater danger. A disturbing number of this Court's cases have applied the canon of constitutional doubt to statutes that were on their face clear. See, e. g., INS v. St. Cyr, 533 U.S. 289, 327-336 (2001) (SCALIA, J., dissenting); Public Citizen v. Department of Justice, 491 U.S. 440, 481-482 (1989) (KENNEDY, J., concurring in judgment); Lowe v. SEC, 472 U.S. 181, 212-213 (1985) (White, J., concurring in result). This Court and others may now employ the "lowest common denominator" approach to limit the application of statutes wholesale by searching for hypothetical unconstitutional applications of them—or, worse yet, hypothetical constitutional doubts—despite the absence of any facial constitutional problem (at least, so long as those hypothetical doubts pose "a multitude of constitutional problems," ante, at 380-381). This is so even if Congress has expressed its clear intent that unconstitutional applications should be severed from constitutional applications, regardless of whether the challenger has third-party standing to raise the constitutional issue, and without the need to engage in full-fledged constitutional analysis.
This danger is real. In St. Cyr, this Court held that the Immigration and Nationality Act (INA) did not divest district courts of jurisdiction under 28 U. S. C. § 2241 over habeas actions filed by criminal aliens to challenge removal orders, 533 U. S., at 314. The Court did so because it thought that otherwise the statute would preclude any avenue of judicial review of removal orders of criminal aliens, thus raising a serious Suspension Clause question. Id., at 305. This was a construction of (among other provisions) 8 U. S. C. §§ 1252(a)(1) and 1252(b)(9), and 28 U. S. C. § 2241, none of which distinguishes between criminal and noncriminal
The Court is also mistaken in affording Zadvydas stare decisis effect. Zadvydas was wrong in both its statutory and its constitutional analysis for the reasons expressed well by the dissents in that case. See 533 U. S., at 705-718 (opinion of KENNEDY, J.); id., at 702-705 (opinion of SCALIA, J.). I continue to adhere to those views and will not repeat the analysis of my colleagues. I write only to explain why I do not consider Zadvydas to bind us.
Zadvydas cast itself as a statutory case, but that fact should not prevent us from overruling it. It is true that we give stronger stare decisis effect to our holdings in statutory
Zadvydas' reading of § 1231(a)(6) is untenable. Section 1231(a)(6) provides that aliens whom the Secretary of Homeland Security has ordered removed "may be detained beyond the removal period." There is no qualification to this authorization, and no reference to a "reasonable time" limitation. Just as we exhaust the aid of the "traditional tools of statutory construction," Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843, n. 9 (1984), before deferring to an agency's interpretation of a statute, so too should we exhaust those tools before deciding that a statute is ambiguous and that an alternative plausible construction of the statute should be adopted.
Application of those traditional tools begins and ends with the text of § 1231(a)(6). Zadvydas' observation that "if Congress had meant to authorize long-term detention of unremovable aliens, it certainly could have spoken in clearer terms," 533 U. S., at 697, proves nothing. Congress could have spoken more clearly in any statutory case in which the statute does not mention the particular factual scenario before
Even apart from the Court's incredible reading of § 1231(a)(6), the normal reason for affording our statutory holdings strong stare decisis effect—that Congress is free to overrule them if it disagrees—does not apply to Zadvydas. Zadvydas is a statutory case in name only. Although the Zadvydas majority purported to find indefinite detention only constitutionally doubtful, its lengthy analysis strongly signaled to Congress that indefinite detention of admitted aliens would be unconstitutional. Indeed, far from avoiding that constitutional question in Zadvydas, the Court took it head on, giving it extended treatment. Id., at 690-697; but see ante, at 381 (noting the "fundamenta[l]" tenet that "[t]he canon [of constitutional avoidance] is not a method of adjudicating constitutional questions by other means"). Zadvydas makes clear that the Court thought indefinite detention to be more than constitutionally suspect, and there is evidence that some Members of Congress understood as much.
The Court points to 8 U. S. C. § 1226a(a)(6) (2000 ed., Supp. II), a statute that Congress passed shortly after Zadvydas, as evidence that Congress can correct Zadvydas' mistake. Ante, at 386, n. 8. This statute only confirms my concern that Zadvydas is legislatively uncorrectable. Section 1226a(a)(6) authorizes detention for a period of six months beyond the removal period of aliens who present a national security threat, but only to the extent that those aliens' removal is not reasonably foreseeable. Ante, at 386, n. 8. Yet Zadvydas conceded that indefinite detention might not violate due process in "certain special and narrow nonpunitive circumstances . . . where a special justification, such as harm-threatening mental illness, outweighs the individual's constitutionally protected interest in avoiding physical restraint." 533 U. S., at 690 (internal quotation marks omitted). Moreover, Zadvydas set a 6-month presumptive outer limit on the detention power. Id., at 701. Congress crafted § 1226a(a)(6) to operate within the boundaries Zadvydas set. This provision says nothing about whether Congress may authorize detention of aliens for greater lengths of time or for reasons the Court found constitutionally problematic in Zadvydas.
* * *
For the foregoing reasons, I would affirm the judgment of the Eleventh Circuit and reverse the judgment of the Ninth Circuit. I therefore respectfully dissent.
Daniel J. Popeo and Richard A. Samp filed a brief for the Washington Legal Foundation et al. as amici curiae urging affirmance in No. 03-7434 and reversal in No. 03-878.
Briefs of amici curiae urging affirmance in No. 03-878 were filed for the Cuban American Bar Association et al. by Catherine E. Stetson, William H. Johnson, and Gilbert Paul Carrasco; for National Refugee Resettlement and Advocacy Organizations by Peter M. Friedman; for Religious Organizations by Isabelle M. Carrillo; and for Stuart E. Eizenstat et al. by David H. Remes.
Jonathan J. Ross and Melford O. Cleveland filed a brief for Law Professors as amici curiae in No. 03-7434.
"The [Secretary] may ... in his discretion parole into the United States temporarily under such conditions as he may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit any alien applying for admission to the United States, but such parole of such alien shall not be regarded as an admission of the alien and when the purposes of such parole shall, in the opinion of the [Secretary], have been served the alien shall forthwith return or be returned to the custody from which he was paroled and thereafter his case shall continue to be dealt with in the same manner as that of any other applicant for admission to the United States."