Cite as: 525 U. S. 471 (1999)
Souter, J., dissenting
The Court acknowledges the existence of an "interpretive anomaly," ante, at 478, and attempts to avoid the contradiction by a creative interpretation of § 1252(g). It reads the § 1252(g) bar to review of "the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien" to "appl[y] only to three discrete actions that the Attorney General may take." Ante, at 482. The Court claims that a bar to review of commencement of proceedings, adjudication of cases, and execution of removal orders does not bar review of every sort of claim, because "many other decisions or actions that may be part of the deportation process," ibid., remain unaffected by the limitation of § 1252(g). On this reading, the Court says, review of some aspects of the Attorney General's possible actions regarding aliens in proceedings before April 1, 1997, is preserved, even though the rest of § 1252 does not apply. The actions that still may be reviewed when challenged by aliens already in proceedings before the effective date of IIRIRA include, the Court tells us, "decisions to open an investigation, to surveil the suspected violator, to reschedule the deportation hearing, to include various provisions in the final order that is the product of the adjudication, and to refuse reconsideration of that order." Ibid.
The Court's interpretation, it seems to me, parses the language of subsection (g) too finely for the business at hand. The chronological march from commencing proceedings, through adjudicating cases, to executing removal orders, surely gives a reasonable first impression of speaking exhaustively. While it is grammatically possible to read the series without total inclusion, ibid., the implausibility of doing this appears the moment one asks why Congress would have wanted to preserve interim review of the particular set of decisions by the Attorney General to which the Court
to give primary influence to the "notwithstanding" clause would simply beg the question of legislative intent.
505
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