Cite as: 507 U. S. 292 (1993)
Stevens, J., dissenting
On its face, the INS' regulation at issue in this case cannot withstand such scrutiny.28 The United States no doubt has a substantial and legitimate interest in protecting 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 deprivations of liberty. Due process demands more, far more.29 If the Government is going to detain juveniles in order to protect their welfare, due process requires that it demonstrate, 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 81 (finding due process violation when individual who is detained on grounds
the State asserts that . . . [Foucha] may be held indefinitely." Id., at 81-82.
As explained in the text, the INS' regulation at issue in this case falls well on the Foucha side of the Salerno/Foucha divide.
28 Because this is a facial challenge, the Court asserts that respondents cannot prevail unless there is " 'no set of circumstances . . . under which the [regulation] would be valid.' " Ante, at 301. This is a rather puzzling pronouncement. Would a facial challenge to a statute providing for imprisonment of all alien children without a hearing fail simply because there is a set of circumstances in which at least one such alien should be detained? Is the Court saying that this challenge fails because the categorical deprivation of liberty to the members of the respondent class may turn out to be beneficial to some? Whatever the Court's rhetoric may signify, it seems clear to me, as I explain in the text, that detention for an insufficient reason without adequate procedural safeguards is a deprivation of liberty without due process of law.
29 In objecting to this statement, see ante, at 311, n. 6, the majority once again mischaracterizes the issue presented in this case. As explained above, see n. 24, supra, the INS can of course favor release of a juvenile to a parent or close relative over release to an unrelated adult. What the INS cannot do, in my view, is prefer detention over release to a responsible adult, a proposition that hardly "revolutionize[s]" our family law.
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