560
Opinion of Souter, J.
A
The Court spends much effort trying to distinguish Zadvydas, but even if the Court succeeded, success would not avail it much. Zadvydas was an application of principles developed in over a century of cases on the rights of aliens and the limits on the government's power to confine individuals. While there are differences between detention pending removal proceedings (this case) and detention after entry of a removal order (Zadvydas), the differences merely point up
bail pending an investigation into the lawfulness of their residence within the United States, and before any order for deportation has been made"); In re Ah Tai, 125 F. 795, 796-797 (Mass. 1903) (identifying a practice in several federal districts admitting aliens to bail, both before an initial finding of deportability and during the appeal therefrom); In re Chow Goo Pooi, 25 F. 77, 78 (CC Cal. 1884). The breadth of this practice is evident from one court's statement that "[t]o hold bail altogether inadmissible . . . would invalidate hundreds of existing recognizances." Ah Tai, supra, at 797.
As Judge Augustus Hand later noted, the only change in 1907 was that bail decisions were committed to the discretion of Executive officials, rather than judges: "Prior to the passage by Congress in 1907 of the act empowering the administrative official to fix bail, various courts made it a practice to grant bail to aliens during deportation hearings. . . . In our opinion that act was intended to place the general determination of granting bail in the hands of the authorities charged with the enforcement of the deportation laws as persons ordinarily best qualified to perform such a function . . . ." United States ex rel. Potash v. District Director of Immigration and Naturalization, 169 F. 2d 747, 751 (CA2 1948) (citations omitted).
Thus, while Wong Wing stated in passing that detention may be used where it was "part of the means necessary" to the removal of aliens, 163 U. S., at 235, that statement was written against the background of the general availability of judicial relief from detention pending deportation proceedings.
The judicial grants of bail prior to 1907 arose in federal habeas proceedings. Contrary to Justice O'Connor's objection to federal jurisdiction in this matter, there is indeed a "history of routine reliance on habeas jurisdiction to challenge the detention of aliens without bail pending the conclusion of removal proceedings." Ante, at 536 (opinion concurring in part and concurring in judgment).
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