Reno v. Flores, 507 U.S. 292, 48 (1993)

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Cite as: 507 U. S. 292 (1993)

Stevens, J., dissenting

And finally, even if it were not clear to me that the Attorney General has exceeded her authority under § 242(a), I would still hold that § 242(a) requires an individualized deterized to work. We said that such a de facto presumption was reasonable because the vast majority of aliens that come into INS custody do not have such authorization, and because the presumption was easily rebutted. Ibid. To the extent that case has any bearing on the INS' use of presumptions, it merely says that the INS may use some easily rebuttable presumptions in identifying the class of individuals subject to its regulations—in that case, aliens lacking authorization to work. Once that class is properly identified, however, the issue becomes whether the INS can use mere presumptions as a basis for making fundamental decisions about detention and freedom. On that question, NCIR is silent; for the regulation at issue there was not based on a presumption at all. It simply provided that an alien who violates American law by engaging in unauthorized employment also violates the terms of his release from INS custody. Id., at 185.

Heckler v. Campbell, 461 U. S. 458 (1983), presents a closer analog to what the INS has done in this case, but only as a matter of logic, for the factual differences between the governmental action approved in Heckler and the INS' policy in this case renders the former a woefully inadequate precedent to support the latter. In Heckler, the Court approved the use of pre-established medical-vocational guidelines for determining Social Security disability benefits, stating: "The Court has recognized that even where an agency's enabling statute expressly requires it to hold a hearing, the agency may rely on its rule-making authority to determine issues that do not require case-by-case consideration. A contrary holding would require the agency continually to relitigate issues that may be established fairly and efficiently in a single rulemaking." Id., at 467 (citations omitted).

Suffice it to say that the determination as to the suitability of a temporary guardian for a juvenile, unlike the determination as to the nature and type of jobs available for an injured worker, is an inquiry that requires case-by-case consideration, and is not one that may be established fairly and efficiently in a single rulemaking. More importantly, the determination as to whether a child should be released to the custody of a friend, godparent, or cousin, as opposed to being detained in a government institution, implicates far more fundamental concerns than whether an individual will receive a particular government benefit. In my view, the Court's reliance on Heckler v. Campbell cuts that case from its administrative law

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