Cite as: 507 U. S. 292 (1993)
O'Connor, J., concurring
(substantive due process scrutiny); ante, at 306-309 (procedural due process scrutiny). Specifically, the absence of available parents, close relatives, or legal guardians to care for respondents does not vitiate their constitutional interest in freedom from institutional confinement. It does not place that interest outside the core of the Due Process Clause. Rather, combined with the Juvenile Care Agreement, the fact that the normal forms of custody have faltered explains why the INS program facially challenged here survives heightened, substantive due process scrutiny. "Where a juvenile has no available parent, close relative, or legal guardian, where the government does not intend to punish the child, and where the conditions of governmental custody are decent and humane, such custody surely does not violate the Constitution. It is rationally connected to a governmental interest in 'preserving and promoting the welfare of the child,' Santosky v. Kramer, 455 U. S. 745, 766 (1982), and is not punitive since it is not excessive in relation to that valid purpose." Ante, at 303. Because this is a facial challenge, the Court rightly focuses on the Juvenile Care Agreement. It is proper to presume that the conditions of confinement are no longer " 'most disturbing,' " Flores v. Meese, 942 F. 2d 1352, 1358 (CA9 1991) (en banc) (quoting Flores v. Meese, 934 F. 2d 991, 1014 (CA9 1990) (Fletcher, J., dissenting)), and that the purposes of confinement are no longer the troublesome ones of lack of resources and expertise published in the Federal Register, see 53 Fed. Reg. 17449 (1988), but rather the plainly legitimate purposes associated with the Government's concern for the welfare of the minors. With those presumptions in place, "the terms and conditions of confinement . . . are in fact compatible with [legitimate] purposes," Schall, supra, at 269, and the Court finds that the INS program conforms with the Due Process Clause. On this understanding, I join the opinion of the Court.
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