Cite as: 538 U. S. 510 (2003)
Opinion of Souter, J.
1
Carlson did not involve mandatory detention. It involved a system similar to the one Kim contends for here. The aliens' detention pending deportation proceedings in Carlson followed a decision on behalf of the Attorney General that custody was preferable to release on bond or on conditional parole. 342 U. S., at 528, n. 5 (citing Internal Security Act of 1950, § 23, 64 Stat. 1011). We sustained that decision because we found that the District Director of the INS, to whom the Attorney General had delegated the authority, did not abuse his discretion in concluding that "evidence of membership [in the Communist Party] plus personal activity in supporting and extending the Party's philosophy concerning violence" made the aliens "a menace to the public interest." 342 U. S., at 541. The significance of looking to "personal activity" in our analysis was complemented by our express recognition that there was "no evidence or contention that all persons arrested as deportable . . . for Communist membership are denied bail," id., at 541-542, and by a Government report showing that in fact "the large majority" of aliens arrested on charges comparable to the Carlson petitioners' were allowed bail. Id., at 542; see also id., at 538, n. 31 (noting that it was "quite clear" that "detention without bond has been the exception").
Indeed, the Carlson Court's constitutional analysis relying on the opportunity for individualized bond determinations simply followed the argument in the brief for the United States in that case. In response to the aliens' argument that the statute made it "mandatory on the Attorney General to deny bail to alien communists," the Government stated, "[w]e need not consider the constitutionality of such a law for that is not what the present law provides." Brief for Respondent in Carlson v. Landon, O. T. 1951, No. 35, p. 19; see also id., at 20 ("[T]he act itself, by its terms, leaves no doubt that the power to detain is discretionary, not mandatory"). The
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