Breyer, J., dissenting
authority,” and that (c) is merely “a limit” on the authority granted by (a). Ante, at 15. But even if (c) were treated as a “limit” on the authority granted by (a), the parallel structure of the statute would still point to the same conclusion: The Secretary must comply with the limit on detention in the first sentence of (c) in order to invoke the rule on release in the second sentence of (c).
Third, Congress’ enactment of a special “transition” statute strengthens the point. When Congress enacted subsection (c), it recognized that there might be “insufficient detention space” and “personnel” to carry out subsection (c)’s requirements. IIRIRA, §303(b)(2), 110 Stat. 3009–586. It therefore authorized the Government to delay implementation of subsection (c)–initially for one year, then for a second year. Ibid.
If the majority were correct that the “when… released” provision does not set a time limit on the Secretary’s authority to deny bail hearings, then a special transition statute delaying implementation for one year would have been unnecessary. To avoid overcrowding, the Government simply could have delayed arresting aliens for 1, 2, 5, or 10 years, as the majority believes it can do, and then deny them bail hearings. What need for a 1-year transition period? The majority responds that the transition statute still served a purpose: to “dela[y] the onset of the Secretary’s obligation to begin making arrests.” Ante, at 21. But that just raises the question: Why would Congress have needed to “dela[y] the onset of the Secretary’s obligation” if it thought that the Secretary could detain aliens without a bail hearing after a year-long delay? The majority offers no good answer. The transition statute therefore strongly suggests that Congress viewed the “when… released” provision as a constraint on the Secretary’s authority to deny a bail hearing.
The transition statute also supports this conclusion in another respect: It demonstrates that Congress anticipated
