Even if he can prove that he would not flee and is not a danger to the community, Congress took from immigration judges the discretion to release him while his case is pending. Worse still, mandatory detention can become permanent. The 1996 laws also took away judges' ability to oversee the actions of the Immigration and Nationalization Service to ensure that it acts in accordance with the law and not in an arbitrary manner. No other law enforcement agency has as many armed officers with arrest powers than does the INS, and no other law enforcement agency arrests as many people. To strip the courts of jurisdiction to hear claims of the INS has acted illegally is to invite abuse.
Judicial review is the norm in our system of justice.
It ensures fairness for people subjected to a deprivation of their liberty, and it promotes professionalism in law enforcement because officers must justify their activities to a neutral decision-maker. The separation of powers enshrined in the Constitution cannot function to protect liberty unless the judicial branch retains authority to correct abuses by the executive branch. The 1996 laws upset the separation of powers in the immigration context, and this must be fixed. No person can defend against the unknown accusation whispered by an unknown person in the ear of a judge charged with deciding the truth of the allegation. The 1996 laws give the INS the power to deport non-citizens and to deny them bond and asylum and other benefits based on secret evidence.