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Opinion of Ginsburg, J.
al's position that the reviewing court of appeals may transfer a case to a district court for resolution of pertinent issues of material fact, see Brief for Petitioners 44, 48-49, and n. 23,2 and counsel's assurance at oral argument that petitioners will adhere to that position, see Tr. of Oral Arg. 5-6.3
2 The Hobbs Act authorizes a reviewing court of appeals to transfer the proceedings to a district court for the resolution of material facts when "the agency has not held a hearing before taking the action of which review is sought," 28 U. S. C. § 2347(b), and "a hearing is not required by law," § 2347(b)(3). Sensitive to the constitutional concerns that would be presented by complete preclusion of judicial review, the Attorney General argues that "[s]ection 2347(b)(3) on its face permits transfer to a district court, in an appropriate case, for resolution of a substantial selective enforcement challenge to a final order of deportation," because the INS is not required to hold a hearing before filing deportation charges. Reply Brief 12, 14. The Attorney General also suggests that other provisions, in particular Federal Rule of Appellate Procedure 48's authorization of special masters, might be available. See Reply Brief 12-13. Finally, the Attorney General argues that, upon a finding of constitutional necessity, a court of appeals could "fashion an appropriate mechanism—most likely a procedure similar to a Section 2347(b)(3) transfer." Id., at 13. While it is best left to the courts of appeals in the first instance to determine the appropriate mechanism for factfinding necessary to the resolution of a constitutional claim, I am confident that provision for such factfinding is not beyond the courts of appeals' authority.
3 The following exchange at oral argument so confirms: Counsel for petitioners: ". . . [I]f there were ultimately final orders of deportation entered, and the respondents raised a constitutional challenge based on selective enforcement, and if the court of appeals then concluded that fact-finding was necessary in order to resolve the constitutional issue, it would then be required to determine whether a mechanism existed under the applicable statute.
"Now, we believe 28 U. S. C. 2347(b)(3) would provide that mechanism, but—
Court: "It might provide the mechanism if the issue is properly raised, but can the issue be properly raised when it would not be based on anything in the record of the proceedings at the administrative level?"
Counsel for petitioners: ". . . [I]f the respondents claimed that execution of the deportation order would violate their constitutional rights because the charges were initiated on the basis of unconstitutional consid-
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