concurring:
I join Judge Schroeder’s opinion for the en banc court, but write separately to say that the INS’ policy of incarcerating children pending deportation hearings rather than releasing them to the temporary custody of responsible non-relative adults, not only violates due process, but does so flagrantly.
This case does not involve the fashioning of some “new” substantive due process right to “be released to unrelated adults,” see dissenting op. at 1379 (Wallace, C.J.). It has nothing to do with the controversy over constitutional protection of privacy interests. The dissent’s concern about limiting the reach of “substantive due process” and its reliance on such cases as Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986),1 unnecessarily cloud the issue. If the word “liberty” as used in the Due Process Clause means anything, it means “liberty from bodily restraint ... [which] is at the heart of the liberty protected by the Due Process Clause.” Board of Pardons v. Allen, 482 U.S. 369, 373 n. 3, 107 S.Ct. 2415, 2418 n. 3, 96 L.Ed.2d 303 (1987). The Supreme Court has repeatedly said that liberty includes freedom from bodily restraint as' an absolute minimum. See, e.g., Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 694, 98 L.Ed. 884 (1953) (“ ‘[Liberty’ ... is not confined to mere freedom from bodily restraint.”); Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042 (1922) (“[Liberty.... denotes not merely freedom from bodily restraint_”). Because the prehearing detention of children so clearly deprives them of their liberty, the Due Process Clause requires the INS to justify its policy by “sufficiently compelling governmental interests.” United States v. Salerno, 481 U.S. 739, 748, 750, 107 S.Ct. 2095, 2102, 2103, 95 L.Ed.2d 697 (1986).
The governmental interests asserted by the INS to justify its policy are trivial. The INS admits that its policy does not even serve the government’s legitimate interest in assuring the children’s appearance at deportation hearings. What the INS’ *1371justification for its policy boils down to is money. It claims that it does not have the “competence” or “resources” to “conduct meaningful screening ... of the environment in which the children will live”. Appellants’ Response to Order Dated August 20,1990 at 6-7. It characterizes home studies as a “delicate undertaking” that is “ordinarily carried out by skilled social workers.” Id. Translated, this means that our government chooses to hold children in detention facilities, despite the INS’ lack of competence to care for them, rather than pay for the services of qualified social workers to conduct home studies of the kind that county social service agencies perform routinely. The INS makes no effort to price such services, nor does it make any effort to show that the cost of such services would be greater than the cost of holding the children in the INS’ own detention facilities. It merely throws up its bureaucratic hands and shrugs that it has no money to pay for home studies.
The INS’ justification for its policy pales in comparison with the governmental interests that have been held to justify prehear-ing detention. These children are not dangerous, as in Salerno, 481 U.S. at 741, 107 S.Ct. at 2098 (approving detention of the head and “captain” of the Genovese crime family when “no release conditions ‘will reasonably assure ... the safety of any other person and the community.’ ”) and Schall v. Martin, 467 U.S. 253, 264, 104 S.Ct. 2403, 2409, 81 L.Ed.2d 207 (1984) (upholding detention of juvenile accused of hitting a youth over the head with a loaded gun under law “designed to protect the child and society from the potential consequences of his criminal acts”). Neither are they a menace to the public interest, as in Carlson v. Landon, 342 U.S. 524, 541, 72 S.Ct. 525, 534, 96 L.Ed. 547 (1952) (upholding detention of alien Communist Party members to prevent “menace to public interest”), or a threat to the national security, as in Ludecke v. Watkins, 335 U.S. 160, 68 S.Ct. 1429, 92 L.Ed. 1881 (1948) (approving detention during World War II of enemy aliens found to be dangerous).
In an effort to salvage the INS policy, the dissent goes so far as to assert that the Due Process Clause provides less protection for the liberty of children than for the liberty of adults. Liberty interests are not “weighed differently for minors in comparison with adults, as the dissent suggests.” See dissenting op. (Wallace, C.J.) at 1380 (citing Schall). Schall stands for the quite different proposition that a juvenile’s liberty interest can “in appropriate circumstances be subordinated to the State’s parens patriae interest in preserving and promoting the welfare of the child.” Schall, 467 U.S. at 265, 104 S.Ct. at 2410 (emphasis supplied). Here the INS has no parens patriae interest to weigh against the juvenile’s liberty interest. The dissent casts the INS as a parent, but I see only a jailer.
Finally, the mere incantation of Congress’ plenary power over immigration policy should not be the siren song that leads us astray from applying settled due process principles to the facts of this case. Congress' broad power to fashion immigration policy no more authorizes the INS to hold people without due process than a state’s sovereign power to pass criminal laws authorizes the imprisonment of people without due process. By invoking Congress’ power to set standards of deportability as an excuse for the detention of children pending hearings on their deportability under those standards, the dissent blurs the distinction between the enactment of immigration laws and the enforcement of those laws. I know of no authority for the dissent’s boundless description of the “judiciary’s limited judicial role” in reviewing all “immigration decisions” or any action it can relegate to “the immigration context.” See dissenting op. (Wallace, C.J.) at 1380-1381. In applying due process principles, we balance “interests,” not “contexts.”
The very cases that the dissent cites for limiting judicial review of all “immigration decisions” recognize the crucial distinction that the dissent ignores. “In the enforcement of ... [immigration policies], the Executive Branch of the Government must respect the procedural safeguards of due process.... [even if] the formulation of these policies is entrusted exclusively to *1372Congress.” Fiallo v. Bell, 430 U.S. 787, 792 n. 4, at 793, 97 S.Ct. 1473, 1478 n. 4, at 1479, 52 L.Ed.2d 50 (1977), quoting Galvan v. Press, 347 U.S. 522, 74 S.Ct. 737, 98 L.Ed. 911 (1954). Thus, the cases cited by the dissent are inapposite in a case involving the detention of children during the process of enforcing the immigration laws. For example, Adams v. Howerton, 673 F.2d 1036 (9th Cir.), cert. denied, 458 U.S. 1111, 102 S.Ct. 3494, 73 L.Ed.2d 1373 (1982), involved judicial deference to a congressional decision to deny immigration preferences to partners in same sex relationships. Galvan v. Press, 347 U.S. 522, 531, 74 S.Ct. 737, 742, 98 L.Ed. 911 (1954), and Harisiades v. Shaughnessy, 342 U.S. 580, 589-90, 72 S.Ct. 512, 519, 96 L.Ed. 586 (1952), upheld statutes making Communist Party members deportable. Finally, Fiallo v. Bell, 430 U.S. 787, 792, 97 S.Ct. 1473, 1477, 52 L.Ed.2d 50 (1977), upheld a statute denying immigration preferences to illegitimate children whose mothers are aliens, but whose fathers are citizens or lawful permanent residents. None of these cases involved the procedures followed by the INS in enforcing the immigration laws passed by Congress.
In sum, the deprivation of the children’s liberty is so plain, and the government’s interest in detaining them so trivial, that the due process violation could not be more clear-cut.
. Bowers held that the Due Process Clause of the Fourteenth Amendment does not prohibit states from criminalizing homosexual sodomy.