Breyer, J., dissenting
serve it.” What would we say of a chef who grilled an Angus steak to 185 degrees Fahrenheit, served it, and then appealed to these instructions–particularly the word “described” in Instruction (4)–as a justification? That he was not a good cook? That he had an odd sense of humor? Or simply that he did not understand the instructions? The chef would have no good textual defense: The steak “described in Instruction (1)” is not just an “Angus” steak, but an “Angus” steak that must be “remove[d]… when the steak is cooked to 120 degrees Fahrenheit.” By the same logic, the alien in paragraph (1) is “described” not only by the four clauses–A, B, C, and D–that directly modify the word “alien,” but also by the verb (“shall take”) and that verb’s modifier (“when the alien is released”).
The majority argues that “the crucial point” is that the phrase “when the alien is released” plays “no role in identifying for the Secretary which aliens she must immediately arrest.” Ante, at 13. That may be so. But why is that a “crucial point” in the majority’s favor? After all, in the example above, the words “[r]emove… from the grill when the steak is cooked to 120 degrees Fahrenheit” do not tell our chef what kind of steak to cook in the first place. (The word “Angus” does that.) Even so, those words still “describe” the steak that must be served in Instruction (4). Why? Because by the time our chef gets to Instruction (4), the recipe contemplates that the action in Instruction (1) has been completed. At that point, the “steak described in Instruction (1)” is a steak that has been cooked in the manner mandated by Instruction (1).
The same is true of the two paragraphs before us. The key word “described” appears not in paragraph (1), but in paragraph (2). Paragraph (2) refers back to the entirety of paragraph (1). And because paragraph (2) is the release provision, it contemplates that the action mandated by paragraph (1)–namely, detention–has already occurred. Thus, the function of the phrase “an alien described in
